Domestic spying

Eric Lichtblau and William Arkin recently reported on the current version of the kind of infiltration that the FBI's COINTELPRO and local "Red Squads" did back in the day, More Federal Agencies Are Using Undercover Operations New York Times 11/15/2014.

This part of the report caught my attention: "Within the Treasury Department, undercover agents at the I.R.S., for example, appear to have far more latitude than do those at many other agencies. I.R.S. rules say that, with prior approval, 'an undercover employee or cooperating private individual may pose as an attorney, physician, clergyman or member of the news media.'"

Awesome. I guess it could help to alleviate the shortage of priests! And apparently even the IRS is into the "alternative medicine" racket now!

Marcy Wheeler and her colleagues at Emptywheel have been keeping track of a string of federal terrorism prosecutions in which it appears that the feds are creating their own terrorist plots, enticing people to participate in the them, mostly young Muslim men, and then busting their own terror plot. For the law-enforcement agencies involved, this has the salutary purpose of showing how they are keeping us all safe. It also reminds us that we're surrounded by deadly plots by the Evil Ones. Lichtblau and Arkin report:

In terrorism cases — the area in which the F.B.I. has used undercover stings most aggressively — prosecutors have a perfect record in defeating claims of entrapment. “I challenge you to find one of those cases in which the defendant has been acquitted asserting that defense,” Robert S. Mueller III, a former F.B.I. director, said at an appearance this year.

The Times analysis showed that the military and its investigative agencies have almost as many undercover agents working inside the United States as does the F.B.I. While most of them are involved in internal policing of service members and defense contractors, a growing number are focused, in part, on the general public as part of joint federal task forces that combine military, intelligence and law enforcement specialists.

Whether that "perfect record" results from careful procedures or from the courts' unwillingness to defy the feds on terrorism cases, I don't know.

One case that Marcy has followed I find particularly disturbing, which she describes in Imagine How Future Parents Will Respond to Concerns about Their Son’s Radicalization Emptywheel 11/29/2013. In this case, a concerned parent asked the FBI to help their son, who they feared was being attracted to illegal activities by radical Islamists. Instead, the FBI set him up to be busted:

Barre [the father] did exactly what the FBI would hope a father would do: alert the FBI. But rather than helping the father prevent his son from being sucked in, instead the FBI (it claims) used the father’s call as the predicate to suck [his son] Mohamud further in, even while they admitted repeatedly he was floundering.

Set aside Mohamud’s guilt or innocence. The message the FBI has sent with its treatment of Mohamud is if family members alert law enforcement to concerns about radicalization, the FBI will then use it as an excuse to entrap their family member.

Just about the least productive thing to do if you want to capture actual threats. [emphasis in original]

This is a good example of how giving law-enforcement agencies wide latitude to run such operations, even if they stay within the letter of the law (which one can certainly question in this case) can still lead them to do stupid, counter-productive things. It certainly seems to me that an outcome like this does more harm to legitimate law-enforcement concerns that help.

Unless such operations are regulated and managed very carefully and responsibly, they lead to all sorts of abuses, legal and otherwise.

I think it's always worth asking when we hear about these cases why the super-duper massive electronic domestic surveillance operations can't be relied upon instead. Of course, that would blow the fiction that the NSA's domestic surveillance is focused only on foreign threats if the government claimed it could pick up all such plots with its high-tech surveillance instead of more conventional law-enforcement operations.

Respectability requires me to say somewhere in a post like this that of course we all respect the law enforcement officers who take risks for us everyday. etc., etc. Even when we're talking about what looks an awful lot like, say, a white cop like Darren Wilson killing unarmed Michael Brown with a barrage of gunshots for no good reason and a police department and prosecutor more interested in exonerating the killer cop than enforcing the law.

We've seen with the NSA spying program that Congressional oversight has been a bad joke, for the most part. Ultimately, if the voters don't demand accountability, if the Congress rejects its duty to exercise oversight, if the courts refused to uphold the law and the Consitution, and the Executive is willing to ignore the law and hide its most questionable activities behind official secrecy, this kind of operations will not be adequately regulated.

That's why right now whistleblowers like Edward Snowden play such an indispensable role in resisting abusive operations.

I'll also say here without sarcasm that undercover operations are standard law-enforcement tools, I assume in all countries. But they should be subject to the rule of law and to the exercise of good judgment on the part of law-enforcement officials.

I wouldn't venture to say that the local Red Squads of earlier years did more damage to the rule of law and individual rights than the nationally-run programs did. But some of them did run wild.

The historic record of such operations in the United States is what makes me so suspicious of the remarkably well-timed announcement of the bust of an alleged terrorist plot targeting St. Louis County Robert McCullough, the Democratic prosecutor who conducted one of the most remarkable grand juries anyone remembers, with the prosecutors' efforts directed toward defending the person the grand jury was asked to consider indicting, i.e., the killer cop Darrel Wilson. (Christine Byers, Alleged plot included bombing Arch, killing St. Louis County prosecutor, Ferguson chief St. Louis Post-Dispatch 1/27/2014)

Infiltrating activist and protest groups

I see that "an undercover law enforcement sting" has resulted in the arrest of two men in an alleged terrorist plot related to Darren Wilson's murder of Michael Brown: Christine Byers, Alleged plot included bombing Arch, killing St. Louis County prosecutor, Ferguson chief St. Louis Post-Dispatch 11/27/2014.

This could be another in a string of busts in which law-enforcement officials cook up a terrorist plot, entice people to participate and then score an arrest against the terrorist plot they created. The bust then becomes a feather in the cap for the agency and the individual police officers participating. And it reminds the public that there are Scary Terrorists out there coming to get us and we need those same law-enforcement agencies to protect us.

I'm sure it's pure coincidence that the arrest came last week just as the grand jury farce over Wilson was coming to a close - and poor County Attorney Robert McCullogh is alleged to be one of the targets of the this supposed terrorist plot. One of the two men charged is associated with the far-right hate group, the New Black Panthers.

It wouldn't be the first time authorities have infiltrated popular movements or used "dirty tricks" to discredit them.

Tom Hayden in a review of a new book on CIA infiltration of student movements in the 1950s and 1960s describes some of the better-known figures who at one time worked knowingly on behalf of the CIA within the student movement in the United States, which included Gloria Steinem and Allard Lowenstein. Hayden's review is The CIA's Student-Activism Phase The Nation 11/26/2014. The he's reviewing is Patriotic Betrayal: The Inside Story of the CIA’s Secret Campaign to Enroll American Students in the Crusade Against Communism by Karen Paget, scheduled to be published in 2015. Hayden writes:

The story begins in the 1950s, which may leave some to wonder if it's not a stale and useless tale by now. It's relevant today, however, because of the cancerous growth of Big Brother surveillance and the proliferation of clandestine operations branded in the name of "democracy promotion,” from Cuba to the Ukraine. The pervasive rise of secret money in campaigns, moreover, makes it impossible to know whether operatives of our intelligence agencies have any role in harassing radicals or steering social movements, or whether such roles have been passed to private foundations. Democracy is increasingly in the dark. Any light from history can serve as high-beams to illuminate the future.

For more recent official infiltration activity, see: Josh Harkinson, How a Radical Leftist Became the FBI's BFF Mother Jones Sept/Oct 2011.

Hayden comments on the contemporary relevance of the recent history Paget's book covers:

One conclusion from this history is that the CIA's illegal infiltration of domestic political groups began long before 9/11 and the present War on Terrorism. It has been a rogue agency for a very long time, masking its agenda by claiming that domestic spying is justified as part of its global duties. Just as the control of NSA was justified for "foreign policy" reasons, so has its wiretapping and spying on domestic sources been justified on the grounds of monitoring international terrorism.

Second, the CIA-NSA revelations created a permanent climate of paranoia among progressives who would never know again who might be "witting." After the many CIA scandals of the 1970s, both political parties created partisan institutes to channel millions of tax-payer dollars to NGOs in countries struggling with democracy issues. The differences are blurred between the CIA and the US Agency for International Development (USAID), which spends an annual $20 million on covert "democracy promotion" in Cuba alone. Similar programs are aimed at Russia, Venezuela, and various "color" revolutions in the former Eastern Europe. The US cannot credibly claim a clean foreign policy, and fuels a global opposition to its double standards.

If I were writing a story of a government agency or a rightwing political sugar-daddy setting up an organization in the US to discredit a movement, I would probably use a group like the New Black Panthers as a model.

The Southern Poverty Law Center describes the New Black Panther Party (n/d; accessed 11/27/2014) this way:

The New Black Panther Party is a virulently racist and anti-Semitic organization whose leaders have encouraged violence against whites, Jews and law enforcement officers. Founded in Dallas, the group today is especially active on the East Coast, from Boston to Jacksonville, Fla. The group portrays itself as a militant, modern-day expression of the black power movement (it frequently engages in armed protests of alleged police brutality and the like), but principals of the original Black Panther Party of the 1960s and 1970s— a militant, but non-racist, left-wing organization — have rejected the new Panthers as a "black racist hate group" and contested their hijacking of the Panther name and symbol.

The world "hegemon" and domestic spying

I hope Digby is being too pessimistic about her skepticism of Edward Snowden's faith in the American public to restrain the rogue US domestic intelligence operations:

It's pretty to think so anyway. But the Deep State is so entrenched that I think all anyone can do at this point is try to keep it from expanding and put a little sunshine scare into them once in a while. The problem, as I've written too many times before, is the United States' status as the world's only superpower and military hegemon. Americans seem to accept this -- embrace it actually --- as a given and have little interest in looking at how we might reorganize ourselves in a new world. Until that happens, this "need" for Deep State capabilities will continue and the government will find new ones to invent. At best, we can knock it back from time to time. (See: the tragic failure of the 1970s reforms.)

"Deep State" is a term I first recall seeing from JFK assassination researcher Peter Dale Scott to describe the secret intelligence operations of the US government. He also uses the term "deep politics" to describe their particular clandestine sphere of operation.

But lately it seems to be getting a broader usage, especially in light of Snowden's revelations. Marc Ambinder and D.B. Grady have 2013 book titled, Deep State: Inside the Government Secrecy Industry, which was published before Snowden's stories started breaking last June.

Mike Lofgren has an essay at the Moyers and Company blog called, Anatomy of the Deep State 02/21/2014. Lofgren defines a somewhat broader definition for his usage of the term:

The term "Deep State" was coined in Turkey and is said to be a system composed of high-level elements within the intelligence services, military, security, judiciary and organized crime. In British author John le Carré’s latest novel, A Delicate Truth, a character describes the Deep State as "... the ever-expanding circle of non-governmental insiders from banking, industry and commerce who were cleared for highly classified information denied to large swathes of Whitehall and Westminster." I use the term to mean a hybrid association of elements of government and parts of top-level finance and industry that is effectively able to govern the United States without reference to the consent of the governed as expressed through the formal political process.

If John le Carré is using it, we can assume it has some value.

Digby may be too pessimistic about public outrage over domestic spying. She probably also hopes that she is.

But she's dead right about this: "The problem, as I've written too many times before, is the United States' status as the world's only superpower and military hegemon."

She's not being rhetorical there: it's the national security policy of the United States. I wrote about the domestic spying implications of it in Metadata and the security state 06/12/2013. The "hegemon" term is used routinely in diplomatic and strategic writing. Isaiah Wilson III, for instance, uses it in The True Tragedy of American Power Parameters Winter 2013 (my emphasis):

... the United States must, as a nation, recognize that it is, in and of itself, a system effect. For better or worse, or perhaps mixes of both, and particularly since its "last great power standing" rise to global hegemony in the wake of World War II, the choices the United States makes in where and how it intervenes (including those choices of where not to intervene) are not merely US choices, but choices that impact the entire world-system.

I want, then, to show how vital this differentiation between "force" and "power" has been to America's rise as a durable and balanced global power, not merely a hegemon. It is important for us to appreciate this distinction all the more as we rethink America’s legitimate and possible roles as the leading power in the future. Finally, I will suggest what an American grand strategy informed by a sense of tragedy — as opposed to a tragic grand strategy — might look like.

And our current national security strategy calls for maintaining US global hegemony that Wilson describes as follows:

Where does American power stand today? From one vantage point, US power seems unsurpassed. The United States is not only a member state of a global community of nation-states, but its leader. And the global community — at least insofar as it is defined by global trade, humanitarian impulses, and other touchstones of American liberalism — is itself the American regime writ large. In this sense, the United States is not merely part of the system; it is the system. As a result, US domestic politics and policy determinations have widespread consequences beyond American shores. Also as a result, American strategists feel a special responsibility to guarantee the stability of the system as a whole. [my emphasis in bold]

As long as we continue to have a national foreign policy strategy based on the idea that "the United States is not merely part of the system; it is the system.," any terrorist action or political upheaval in any part of the world can be considered a direct threat to vital US interests. And if history is any guide at all in this matter, we can be sure that some parts of the national security establishment will constantly be finding such deadly threats all around the world.

And that means we will constantly be asking questions like this:

After sixty-five years of pursuing a globally engaged grand strategy—nearly a third of which transpired without a great peer power rival — has the time finally come for retrenchment? Or can the United States discover a way to navigate uncertainty while preserving American dominance as a leading power in and of the international system? These questions will be at the core of our political debates in the years to come.

That mission requires an enormous national security establishment and a more-or-less constant atmosphere of threat in the national government: conditions that almost inevitably produce dangerous excesses from the "Deep State" like those we're seeing now.

Tags: domestic spying, us foreign policy

Obama defends the surveillance state

Conservative columnist Dave Weigel does a decent takedown of President Obama's comments Friday about domestic spying and Edward Snowden in Scoffer in Chief Slate 08/09/2013:

The president’s mission, as set out on Friday, is to take credit for all the reforms that sound the best, and to re-establish the government as a trusted actor without doing much that's new. In that May speech at the National Defense University, Obama committed to "a strong Privacy and Civil Liberties Board to review those issues where our counterterrorism efforts and our values may come into tension." On Friday, he said that he’d "asked the Privacy and Civil Liberties Oversight Board to review where our counterterrorism efforts and our values come into tension." Created in 2004, on the recommendations of the 9/11 Commission, the board was effectively powerless until three months ago, when it finally got a chairman, and the president’s still bland when it comes to its goals.

Blandness serves a purpose. The White House’s plans for a website that will "serve as the hub for further transparency" are obviously silly, and the most concrete plan denoted in the press conference may not have a real impact. "One of the concerns that people raise is that a judge reviewing a request from the government to conduct programmatic surveillance only hears one side of the story," Obama said. "We can take steps to make sure civil liberties concerns have an independent voice, in appropriate cases, by ensuring that the government's position is challenged by an adversary." He was referring obliquely to a Democratic bill that would create a "public advocate" in the FISA court. Civil libertarians wonder if that would truly add more accountability to the process, or whether it would become yet another surveillance rubber stamp.

He also makes a good point about Obama's style. On the one hand, Obama makes considerable effort to come across as the proverbial regular guy. "But when the topic of Edward Snowden comes up, President Obama talks like he’s at the summit of Olympus, uninterested in mortals. It’s not a very convincing act."

Obama's own authoritarian leanings have come out most clearly around the issue of government secrecy and his War on Whistleblowers. He's also exhibited a downright cruel streak in relation to it, as Juan Cole recalls in Informed Comment 08/10/2013:

Mr. Obama at one point in his press conference called on Edward Snowden to come back to the United States and argue his case. I mean, really. This kind of disinformation and grandstanding can't possibly be necessary, even given the constraints mentioned at the beginning of this essay. Mr. Obama knows very well that if Snowden returned to the US, we would never ever hear from him ever again. He’d go straight to a maximum security prison for the rest of his days on earth and die there.

Bradley Manning was held at a brig by the Marines and was falsely declared a suicide risk so that he could be tortured by being chained naked to his bed for a year and woken up several times a night (sleep deprivation is a torture tactic, as is humiliation via making a prisoner nude. These same techniques were used by the US military on Iraqi prisoners at Abu Ghraib). There is no reason to believe that Snowden would be treated better. Note that Obama’s own spokesman, P. J. Crowley, publicly criticized Manning’s treatment and was fired for it. Obama had been in a position to stop the torture but did not.

If Mr. Obama were serious about wanting Snowden voluntarily to return and participate in a national debate, he would take the espionage charges off the table. Despite cynical presuppositions by Snowden’s critics, there is no evidence whatsoever that he has shared sensitive intelligence with either China or Russia. [my emphasis]

The dedicated Obama critic David Bromwich writes of the surveillance state (Diary London Review of Books 06/21/2013):

Fear must have been among the strongest emotions that penetrated Snowden when he grasped the total meaning of the maps of the security state to which he was afforded a unique access. In one sort of mind, and it characterises the majority of those in power, the fear turns adaptive and changes slowly to compliance and even attachment. In a mind of a different sort, the fear leads to indignation and finally resistance. But we should not underestimate the element of physical fear that accompanies such a moral upheaval. Since the prosecutions of whistleblowers, the abusive treatment of Manning and the drone assassinations of American citizens have been justified by the president and his advisers, a dissident in the US may now think of his country the way the dissidents in East Germany under the Stasi thought of theirs. ‘The gloves are off.’ Nor should we doubt that a kindred fear is known even to the persons who control the apparatus.

It's certainly created a dangerous situation for preserving the rule of law - in the national security arena, maybe we should talk about a revival of the rule of law - when the only way a person like Snowden who seeks to expose what he has good reason to believe are not only anti-democratic but illegal spying by the government and private companies to which it was outsourced the job is to be willing to go into permanent exile and risk the fate back home that Juan Cole describes.

Tags: domestic spying, edward snowden, obama administration

The War on Terrorism and the Cold War

Patrick Smith raises a point that I'm glad to see people raising in There is no terrorist threat: The feds want you to think there is, compliant media goes along Salon 08/09/2013:

After a week of ghost stories about an imminent but vaporous plot on the part of an al-Qaida "affiliate" — this is the big new word — it is hard to decide which is more disheartening: 1) The White House’s blithe if clumsy deployment of factoids, 2) the supine complicity of the media (and this, frankly, is my choice), or 3) the willingness of honorable liberals and capital-D Democrats to go along with the show simply because Obama is maestro and one stays with Obama no matter what he does.

Nothing can be said for certain as to what prompted the State Department to close more than 20 embassies and consulates in the Middle East and North Africa last Sunday, and this is by design. But it is no excuse not to raise the possibility that Americans are eating a summer salad of nonsense served to justify objectionable surveillance practices now coming in for scrutiny.

There also seems to have been a rejuvenation of the term "Al Qaeda" for all Muslim terrorists and terrorist-wannabes. (Except the ones that may momentarily be on Our Side, of course, like the MEK group that was recently de-listed from the US designation as a terrorist organization.) "Al Qaeda" has taken on the role of all-purpose bogeyman that Communism was assigned during the Cold War.

And while the start of the Cold War is considerably more complicated that the following quote describes, it's a good historical reminder:

Now that we are onto history and the purposeful production of paranoia, let us revisit the late winter of 1947 — March 12, to be exact. That is the day Harry Truman began the Cold War, by the reckoning of many (not all) scholars. Truman wanted to send $400 million to the Greek monarchy to suppress a popular, mixed-bag rebellion. But would a stingy, isolationist Congress buy into this momentous move? The American public was in no mood, either. (In the bargain, the monarchy in Athens was crypto-fascist even by the accounts of State Department diplomats.)

Truman found a friend in the chairman of the Senate Foreign Relations Committee, Republican Arthur Vandenberg, who delivered a line long famous among Cold War historians. Come to the Hill, Vandenberg urged. "Make a personal appearance before Congress and scare the hell out of the American people." Truman did, Congress clapped, the Greeks got the military aid, and Americans got desirably scared. So ensued the wastage of the next 42 years.

Tags: cold war, domestic spying

Justifying the NSA

I'm not the least surprised at this: US embassy closures used to bolster case for NSA surveillance programs by Spencer Ackerman and Dan Roberts Guardian 08/05/2013.

No one can brush off this kind of warning. But after the intelligence abuses of the Cheney-Bush and Obama Administration, after the extreme secrecy and dishonest representations of their massive surveillance programs by Obama's intelligence officials, my confidence in the intelligence agencies to be honest with the American public about these dangers is very low.

I do wish the government and the press would stop using "Al Qaeda" as a blanket term for The Terrorists. But that usage is well established and shows little sign of going away.

As Charlie Pierce puts it in his distinctive style (What Are the Gobshites Saying These Days Esquire Politics Blog 08/05/2013):

Those of you keeping score at home will note that, for the last two or three months, the NSA has been under some criticism for its Hoovering up of our personal data. If I were running an secret surveillance state, and I found that secret surveillance state nearly defunded by the Congress only a week earlier, I might think to myself, hmm, what I could use right now, along with a cold beer and a plate of gherkins, would be a worldwide terror alert of a kind we've rarely seen before, but of sufficient vagueness that I couldn't be accused of ginning up fear for my own bureaucratic purposes. I might not even be inclined to wait until serendipity dropped this opportunity in my lap.

Juan Cole is especially impressed with the embassy-closing gesture, as he explains in How the GOP Libya Witch Hunt Made us Close our Mideast Embassies and Crippled US Diplomacy Informed Comment 08/05/2013:

... the GOP is inadvertently pushing the US into a posture of dangerous diplomatic weakness. This weakness is clear in the unprecedented closing of 21 US embassies in the Middle East this weekend because of a vague terrorist threat apparently emanating from “al-Qaeda in the Arabian Peninsula,” based in Yemen.

The Obama administration most likely took this weird step to insulate itself from any further witch hunts of the sort the Republicans launched over the tragic attack on a CIA safe house doubling as a US consulate in Benghazi, Libya, on Sept. 11, 2011. That a radical extremist cell should have attacked in this way was a surprise, since the radicals had been persecuted by Muammar Gaddafi, and the US had helped overthrow the dictator. I was in Benghazi in summer of 2011 and was told that personal security was not so bad (you wouldn’t be mugged as an individual), but that militias might steal from, e.g., a company. The existence of a set of terrorist cells that would and could kill ambassador Chris Stevens and three others was not clear. When the surprise attack was launched, the Libyan government organized a special forces unit to extract the remaining dozens of Americans and get them to Tripoli, with it did without further loss of life. There is no reason to think that the Obama administration behaved inappropriately through the crisis. ...

So at a time when Tunisia and Libya facing the greatest popular turmoil since 2011, you have American embassies barely functioning and not able effectively to engage in diplomacy, suggest compromises, push for moderation. The GOP produced this sad situation by forcing the administration to protect themselves from further invidious inquisitions.

Now the Benghazi Disease has spread from Tunisia and Libya to the whole Middle East. Al-Qaeda in the Arabian Peninsula is a few hundred guys out in the boondocks of Yemen (and that is really the boondocks). They have a pathological fascination with the non-metallic explosive PETN, which is why we all have to get naked at the airport while scanners look for pouches of it, since it wouldn’t set off the metal detectors. They did try to attack the US Embassy in Sanaa in 2008 and killed 6 of their own guys. As far as I can tell they have a dearth of successful operations.

It is inappropriate to give AQAP the idea that they can push around a superpower this way.

He thinks this is more of the story on the embassy closings than an attempt to justify the NSA domestic surveillance programs.

Tags: domestic spying, edward snowden, obama administration

NSA spying and the transformation of the Internet (Updated)

A lot of people have responded to Snowden's revelations with a shrug, saying, "I have nothing to hide." But that misses the point. It's bad enough that private companies track our movements, tastes, habits, health and networks, all to sell us more stuff. But when governments do the same thing, creating a domestic spying industry 171 with hundreds of thousands of contractors, the potential for abuse is frightening.

That digital dragnet is what Snowden has been trying to bring into the open and reform: the Internet, once one of our greatest tools, can be turned against us.

History has shown that he is correct. The 20th century's targets of totalitarian states had almost nowhere to run. The enemies of Egypt's military coup, like them or not, are not so secretly being rounded up and arrested. And Snowden, the messenger in a global Internet-based spying scandal, is now a man without a country.

The Internet is not dead or dying. But it's not our best friend forever. And as America's spymasters and its global companies keep defending their digital dragnet, Snowden's revelations remind us what the Internet has become.

So writes Steve Rosenfeld in The Internet As We Know It Is On Its Deathbed Alternet 07/30/2013.

He's getting at an important aspect and likely consequence of the NSA spying program and the public revelations of it through the whistleblower Edward Snowden. That being, who wants to go through this? Who wants to become a whistleblower even against what look like serious crimes if you have to become a permanent fugitive sheltering in a foreign country, worrying that every change of government there may mean you have to run again? No doubt, it's quite a deterrent.

Snowden's revelations didn't themselves create some new era for the Internet. But they certainly seem to show that we've entered one.

Because of massive secrecy, we don't have a clear picture of everything the federal government is collecting and storing. But there are good reasons to assume that they are collecting and storing all electronic communications, all phone calls including recordings of the content, and maybe even all Web searches.

And according to the Obama Administration and the defenders of the surveillance state in Congress, this is all being collected legally. (I won't drive myself crazy with this, but in our current SpySpeak, "collection" doesn't mean tracking, recording and storing all this stuff, but only reading or listening to the contents. I'm going to stick to regular English in this post.)

So why should that data all just set there in the gigantic new storage facility that the feds are building and may already be in operation? Certainly, people have some ideas to put it to work: Eric Lichtblau and Michael Schmidt, Other Agencies Clamor for Data N.S.A. Compiles New York Times 08/03/2013; Marcy Wheeler, U.S. Justice: A Rotting Tree of Poisonous Fruit? Emptywheel 08/05/2013. Marcy's title refers to the judicial doctrine known as "fruit of the poisonous tree." If the cops come search your house without a proper warrant or some other accepted legal justification, any evidence they find there cannot be used against you in court. Nor can any other evidence secured based on information found in the illegal search; that's where the "fruit of the poisonous tree" concept comes in. (As fans of police procedural TV dramas know, if the state can make a plausible case that the police would inevitably have found the "fruit" anyway.)

Marcy also points to this story: Stewart Powell, NSA handing over non-terror intelligence San Francisco Chronicle 08/04/2013.

This is another version of the dilemma that Cheney and Bush created with their gulag system of "black sites" and Guantánamo. When you create a parallel "justice" system, you not only do a lot of unnecessary harm and injustices to people. But you wind up having to recreate the wheel. After detaining and torturing people for years, the government had to eventually come up with a procedure to judge the guilt of the detainees. But for any halfway honest justice system, evidence collected via torture can't be allowed. So we've wound up with the bizarre situation that it's near-impossible to try detainees the government thinks are guilty. But we're also holding detainees indefinitely that the government no longer even claims to think are guilty of anything.

The same thing is happening with the massive surveillance state. It's justified as protecting us against The Terrorists. But such massive surveillance, justified under a secret law and governed by a secret court whose decisions are secret and whose judges are appointed by authoritarian-segregationist Chief Justice John Roberts, is incompatible with democratic governance and a fair justice system. And those conflicts will only grow if the surveillance Kraken isn't reigned in. The defense has to be able to contest the source of the information and the chain of evidence-collection in a meaningful way in order to provide a fair trial.

The Kraken

In theory, this could be used to benefit defendants, as well. Apparently, the NSA is sweeping so much information that they must have evidence relating to just about every criminal case in the US. If they are providing some of it to the prosecution, why shouldn't they have to provide it to the defense? For that matter, shouldn't there be an obligation to turn exculpatory evidence over to the defense? If that were done systematically, local cops might have to start behaving a lot better!

So, just as with the Bush Gulag (as Al Gore called it), the Cheney-Bush-Obama surveillance state is now having to recreate the wheel by building a parallel justice system, one that is increasingly starting to collide with the main justice system.

Oh, the DEA is in the act, too: John Shiffman and Kristina Cooke, Exclusive: U.S. directs agents to cover up program used to investigate Americans Reuters 08/05/2013. Speaking of poisonous trees, the War on Drugs is a tree that is the source of a lot of the poisonous fruits in violations of privacy and civil rights, the militarization of police and the overcrowding of prisons. This news prompted this mini-rant from Ana Kasparian at her Facebook page today:

So the NSA is now taking the info they collect by spying on us, and sending it to the DEA so they can prosecute us for drug use. On top if all that, the DEA lies about where the information originated from, which destroys our right to a fair trial. America is NOT the land of the free. Our rights are being destroyed right in front of our eyes. THIS is why Snowden is an American hero. He revealed the tip of the iceberg, and it's up to us to respond accordingly.

(Update: Bmaz at Emptywheel provides some background on this news in About the Reuters DEA Special Operations Division Story 08/05/2013)

There is reason to think that the government is being just plain dumb and needlessly abusive in some of its searches. Like this case that recently drew some attention: Natasha Lennard, NSA at work? Writer says house raided after online browsing Salon 08/01/2013; Michele Catalano, pressure cookers, backpacks and quinoa, oh my! Writing Out Loud 08/01/2013; Watertown Redux? Cops, not Feds, Raid House in New York Somewhere BagNewsNotes 08/03/2013.

This is how repression works. Not primarily by busting everybody that steps out of line. But by creating a consciousness that if you step out of line, you might get in trouble, even really serious trouble. So, for instance, if you read about the Boston Marathon bombers using pressure cookers to make explosives and were curious about how that could be, you might have wanted to google something like "pressure cooker explosives" or "pressure cooker bombs." But normal curiosity might get you a visit from a Counter Terrorism Task Force, which most people presumably prefer not to have.

Okay, so most people who aren't terminal news junkies may not bother. But what does it do to the liberating potential of the Internet that has been so much discussed the last two decades? It doesn't end it. But the popular notion that the Internet provides an inherently democratic platform that can't be stifled by governments has to be revised.

Joshua Yaffa reports on how Putin's government in Russia is asserting greater control over speech over the Internet in Is Pavel Durov, Russia's Zuckerberg, a Kremlin Target? (print title: "The Flight of the Russian Zuckerberg") Bloomberg Businessweek 08/01/2013 talks about the Putin government's attempts to bring VKontakte, the leading social networking site in Russia, more under state control. The online version omits the following paragraph, which is fifth from the end in the print version:

The change in VKontakte's ownership occurred at the same time the Duma was extending the state's ability to monitor and filter Internet content. Last summer it created a so-called blacklist law that requires providers to block access to sites deemed to contain child pornography, material on drug use, or calls to suicide. On May 24, VKontakte was entirely blocked for several hours when it was placed on the blacklist. The state agency responsible for maintaining the register of banned sites said it was a "mistake," but some inside the company took it as a warning.

Both versions contain these paragraphs which follow the one just quoted in the print edition:

The Duma passed another law calling for the blocking of sites with pirated content. Given VKontakte's trove of free music and video, this legislation could be an even more immediate threat to the company. In mid-June, perhaps to get out in front of the pending regulations, it began a massive campaign to delete unlicensed songs on user pages at the request of a law firm representing Universal Music (VIVHY), Sony Music (SNE), and Warner Music.

The crackdown may be the first step toward what Sergei Zheleznyak, the deputy speaker of the Duma, has called "digital sovereignty." That would mean even foreign Internet companies such as Facebook would be forced to place their servers in Russia, making such sites more liable to monitoring or blocking. Such a move would resemble the Chinese setup, in which the state simultaneously pushes users toward homegrown versions of social networks over which it has more sway — such as Baidu (BIDU) in China, or perhaps VKontakte in Russia — while demanding greater access and compliance from foreign companies operating in Russian territory. Before, says Soldatov, the Russian authorities would "ask to remove content, not to be given a back door." That may be changing. [my emphasis]

This doesn't mean that the political-liberating potential of the Internet is shot. Size matters, or in this case volume. The NSA is vacuuming up and storing such staggering amounts of information that the monitoring potential is inherently self-limiting. Because most of what they're getting is irrelevant to either actual crimes or political dissent. They are creating many haystacks of information in which they hope to locate needles. It certainly could lead to needless annoyance for people who trade recipes via e-mail, Facebook or telephone that involve a "pressure cooker." But who knows what dangerous and subversive ideas people might pick up from reading John Locke or Benjamin Franklin online?

But it does mean that governments of overtly authoritarian and more ostensibly democratic casts have been able to go much further in controlling and monitoring the Internet than some of the more enthusiastic digital libertarians may have hoped.

Finally, there's the question of how this will affect online business. With social networking sites such as Facebook suffer as more people decide that they would prefer to share hardcopy photos of the family picnics instead of posting them on a social networking site? I would be amazed if in the wake of the Snowden revelations and other related reporting if foreign corporations aren't looking for ways to avoid exposing their information to American Internet companies. Most of them presumably don't want to have the NSA sweep up their trade secrets and give them to American competitors. And, for that matter, American companies have a legitimate worry that the NSA will take their information and share it with some business that has better crony-capitalist connections to whatever Administration is in power at the moment.

This gives me a chance to roll out one of my favorite history quotes: "When philosophy paints its gray on gray, then has a form of life grown old, and with gray on gray it cannot be rejuvenated, but only known; the Owl of Minerva first takes flight with twilight closing in. - G. W. F. Hegel, "Preface," Philosophy of Right. That was his dramatic way of saying that we can't really understand an era until it is ending. And it looks like some important phase of the Internet phenomenon may be coming to an end. Globalization meets "digital sovereignty"?

Tags: domestic spying, edward snowden, obama administration

The out-of-control surveillance state

Fred Kaplan has along article discussing the massive domestic spying program, Damaged Goods Slate 08/02/2013. Here he describes the undemocratic, police-state style secrecy in which the FISA court has been acting:

The catch, as we now know, is that all of this—the ever-expanding surveillance in time and space, the reasoning behind it, and the FISA court ruling that approves it — has evolved at such high levels of secrecy that only a handful of people in Congress (very few people anywhere outside the NSA, and probably not all that many inside) know anything about it. This, it turns out, is what Wyden, a member of the Senate Intelligence Committee, meant when he cryptically said, way back in October 2011, that "there are two Patriot Acts in America" — the one that anybody can read and a "secret interpretation that the executive branch uses" but that nobody on the outside knows about at all. The public Patriot Act allows "bulk" collection of data; the secret interpretation defines "bulk" far more bulkily than anyone could have imagined.

And here's the problem. The program was supposed to have checks and balances, but really it doesn't, not anymore. The FISA court was created in the wake of Sen. Frank Church’s hearings, which unveiled decades of illegal conduct by the U.S. intelligence community. Intelligence agencies had to get a warrant from the FISA court before they could conduct surveillance of suspected spies inside the United States. ...

The court's powers were expressly limited because its sessions, deliberations, and rulings were secret; the court issued its extraordinary ruling on the meaning of "relevant" data without letting anyone know about it. In other words, the NSA's authority and the Patriot Act's scope were expanded way beyond almost everyone's understanding — in total secrecy. Theoretically, the ruling could have been appealed to the Supreme Court. (The new surveillance programs, even more than the earlier ones, raise constitutional issues, especially regarding the Fourth Amendment, barring unlawful search and seizure.) But in reality, this was impossible because no one knew the ruling had been made — and because there is no procedure for appealing a FISA court decision. [my emphasis]

As Kaplan points out, "all but one of its judges were appointed by the Supreme Court's Chief Justice John Roberts." So it's scarcely surprising that they "activist" judges with a heavy authoritarian bent.

Digby also calls attention to Kaplan's article, emphasizing the boys-with-toys aspect that the also discusses, Famous http://digbysblog.blogspot.com/2013/08/famous-emoprog-fred-kaplan-on-boys-and.html Fred Kaplan on the boys and their toys Hullabaloo 08/02/2013. The term "emoprog" is a hastag term that is used to diss progressive critics of President Obama. Digby is obviously using it in a satirical sense, since she's enthusiastic about the article, as I am, too. (The Urban Dictionary says that #emoprog "was seen as divisive and has been superseded by Puritopian." Digby says of the boys-with-toys factor:

I would say the same logic applies to the drone war as well. And none of this is any more benign than the "technically sweet" temptation to create weapons that could destroy the entire planet. It is obvious to me from what we've seen of the Big Kahunas in charge of our surveillance state (like Keith Alexander) that this is exactly what happened.

In another post (The biggest back-up file on earth 08/03/2013), she calls attention to this PBS Newshour segment which gives some idea of the staggering amount of data the NSA and other federal agencies are collecting and storing, at this point with no effective concern for privacy or meaningful legal restrictions, it seems, NSA Collects 'Word for Word' Every Domestic Communication, Says Former Analyst 08/01/2013:

This report is part of a series PBS Newshour started last week on the surveillance issue. There are two additional related videos and an accompanying article, Larisa Epatko, Ex-NSA Analysts: Agency Collecting All Electronic Communications 08/01/2013. These show the full interviews, of which excerpts are used in the report above.

Ex-NSA Analysts on Their Top-Secret Discoveries 08/01/2013:

Former Inspector General [Joel Brenner] Defends NSA Programs 08/01/2013:

Brenner here speaks here as an advocate for the NSA. As always with the defenders of the massive surveillance programs, it's important to listen carefully to how they word their reassurances. Brenner, for instance, around 1:42 denies that "files on Americans as a general rule" or "compiling dossiers on people the way J. Edgar Hoover did in the 40s and 50s or the way the East German police did" are good examples of the carefully lawyerly wording that often proves to be evasive mealy-mouthing in the surveillance issue. Do electronic files count as "files" for him? Are there millions of files on Americans being compiled under a specific rule for not "a general rule"? And since J. Edgar Hoover didn't have e-mails to capture in the 40s and 50s, no "dossiers" based on them would be complied "the way J. Edgar Hoover did in the 40s and 50s."

Tags: domestic spying

Searching American phone records - hundreds of millions of them?

Thanks to the revelations from now-fugitive Edward Snowden and the Congressional pressure that followed them, the Obama Administration is now officially admitting more about the domestic spying programs it is conducting. Aljazeera English reports in US spy chiefs admit snooping on Americans 08/01/2013:

Appearing before the Senate judiciary committee, John Inglis, the NSA's deputy director, conceded that his agents can track the telephone activities of millions of Americans while searching for one terrorism suspect, but said that agents "try to be judicious" in their searches.

The Obama administration has previously stated that such records are rarely searched and, when they are, officials target only suspected foreign terrorists.

The searches described to the judiciary committee hinge on the "chain" analysis of information gathered on telephone communications. When the NSA identifies a suspect, it can look not just at their phone records, but also the records of everyone they call, everyone who calls those people and everyone who calls those people.

If the average person called 40 people, the analysis would allow the government to mine the records of 2.5 million Americans when investigating one suspect. The NSA conducted 300 such searches last year.

At 2.5 million each (using their 40 contacts per person assumption, it rounds to 2.6 million), that would add up to possibly 750 million people affected by records searches. With a total population of 314 million or so, that would more than allow for searches of the phone records of every single adult in the US.

Tags: domestic spying

Government stenography on the Snowden leaks

Michael Riley does a piece of stenography for the national security establishment in Snowden's Access to NSA's Deepest Secrets Disputed (Print title: What Snowden Doesn't Know) Bloomberg Businessweek 07/18/2013.

The feds have made two broad arguments about Snowden's revelations. One is that he's a traitor and criminal who damaged the national interest so that there's more chance now that The Terrorists will kill us all in our beds. The other is that his revelations are no big deal, nothing to see here, move along.

Riley's stenography promotes the second version. His cited sources include:

• "current and former intelligence officials familiar with his role within the agency"
• "a former senior official at the Department of Defense who, like other current and former intelligence employees cited in this article, asked not to be named talking about NSA operations"
• "every intelligence official interviewed for this story"
• "A former U.S. intelligence employee"
• "A former senior intelligence official"
• "a former NSA official"
• "current and former intelligence officials"
• "A person familiar with the TAO unit in Hawaii"

Riley does cite one from by name, from a conservative-leaning security think-tank, apparently speculating along the lines of Riley's various anonymous sources: "'I think he was overbilling by telling people he had access to the dark inner secrets,' says James Lewis, a fellow in cybersecurity at the Center for Strategic and International Studies. 'He did what contractors do — he padded his résumé.'"

The core of this argument comes at the end:

The most secretive of the NSA’s programs is Tailored Access Operations, or TAO, an elite group of 200 hackers who break into foreign computer networks. They train for two years to qualify for the program, and their work generates some of the U.S. government's most valuable intelligence. Contractors don't get those jobs, current and former intelligence officials say.

Snowden has hinted he has more damaging information in his possession that he hasn’t released. His leaks gave foreign governments an idea of the breadth of the NSA’s data sweeps but didn’t reveal which networks it has tapped. TAO's activities were apparently among Snowden’s targets. He told the Guardian that he took the job in Hawaii so he could gain access to lists of computers the agency had hacked. There's no indication he got near that information. A person familiar with the TAO unit in Hawaii says no one within the tight-knit group of hackers had met or even heard of Snowden—until they saw his face on the news.

Apparently, according to Riley's parade of anonymous sources, those 200 hackers are the only ones in the NSA who knows anything worth knowing. Why all that other unimportant information is so highly classified is not a question Riley or his anonymous sources address.

But since there were all these people apparently talking about classified information without formal authorization, I'm sure the Pentagon and the Justice Department are eagerly seeking those sources so they can also be sent to prison for years or life. And, yes, I mean that ironically. Leakers who leak information on behalf of their agencies propaganda operations are normally not targeted for such actions. (It would be interesting to know if the government had ever officially disclosed that 200 hackers have all the good stuff in the world of NSA spying.)

I'm sure Riley's anonymous Administration sources would deny that it rises to the importance of the Good Stuff From The 200 Hackers, Glenn Greenwald and the Guardian just published new revelations about the massive NSA spying, XKeyscore: NSA tool collects 'nearly everything a user does on the internet' 07/31/2013:

A top secret National Security Agency program allows analysts to search with no prior authorization through vast databases containing emails, online chats and the browsing histories of millions of individuals, according to documents provided by whistleblower Edward Snowden. ...

US officials vehemently denied this specific claim. Mike Rogers, the Republican chairman of the House intelligence committee, said of Snowden's assertion: "He's lying. It's impossible for him to do what he was saying he could do."

But training materials for XKeyscore detail how analysts can use it and other systems to mine enormous agency databases by filling in a simple on-screen form giving only a broad justification for the search. The request is not reviewed by a court or any NSA personnel before it is processed.

XKeyscore, the documents boast, is the NSA's "widest reaching" system developing intelligence from computer networks – what the agency calls Digital Network Intelligence (DNI). One presentation claims the program covers "nearly everything a typical user does on the internet", including the content of emails, websites visited and searches, as well as their metadata. ...

Under US law, the NSA is required to obtain an individualized Fisa warrant only if the target of their surveillance is a 'US person', though no such warrant is required for intercepting the communications of Americans with foreign targets. But XKeyscore provides the technological capability, if not the legal authority, to target even US persons for extensive electronic surveillance without a warrant provided that some identifying information, such as their email or IP address, is known to the analyst.

But if it wasn't signed by every member of the League Of 200 Hackers, it can't be very important!

Tags: domestic spying, edward snowden, obama administration

So today the feds are *against* "illegal and fraudulent means to steal sensitive information online"?

Cybercrime is considered cutting-edge these days. As various writers noted in the wake of Aaron Swartz' suicide, likely one of the reasons the feds were pursuing him so aggressively over the MIT hacking case was that it is seen as a career-builder for federal prosecutors to successfully go after cybercrime. And, of course, "cyberwar" is also a hot topic nowadays, too.

Large banks have been relying heavily on computers since the 1950s, so cybercrime isn't something brand new. But as computers get better, platforms multiply and more and more people rely on them, potential opportunities for mischief and worse have increased exponentially.

Federal indictments came down today against against six people accused of major theft via cybercrime, as By E. Scott Reckard reports in Russian hackers charged in biggest cybercrime spree yet, feds say Los Angeles Times 07/25/2013. This quote from his story really sticks out.

"This type of crime is the cutting edge," Paul J. Fishman, the U.S. attorney for New Jersey, said ijn [sic] a news release. "These types of frauds increase the costs of doing business for every American consumer, every day."

Mythili Raman, acting assistant attorney general of the Justice Department's criminal division, said: "Today's indictment will no doubt serve as a serious warning to those who would utilize illegal and fraudulent means to steal sensitive information online." [my emphasis]

The Obama Administration argues that the massive NSA surveillance is legal. But they've also blocked it from meaningful judicial review.

The government does need to be protecting us against significant fraud. It does not need to be sweeping up mind-boggling amounts of information in hopes they'll come up with some magical algorithm that will dig something useful out of the data.

And it makes statements like this sound like a joke. They had enough evidence to get an indictment. But the federal government isn't even trying to protect the rights of individual citizens from NSA excesses. And the massive amounts of data they are collecting will inevitably be used for various illegitimate purposes: political, public and private. They're amassing huge amounts of data that could be immensely valuable to a lot of people and businesses. There will be more breaches, and not all of them whistleblowers concerned about exposing wrongdoing. Some of them will be getting the information for wrongdoing not unlike the type these indictments are about.

Tags: domestic spying, obama administration, nsa spying

US vs. Europe vs. Latin America Over Edward Snowden

The Edward Snowden case acquired an extra touch of melodrama the last couple of days as Anna Chapman, the Russian spy expelled from the US in 2010 ...

... supposedly proposed to him via Twitter ...

... then followed up with this message to the NSA:

Die Welt seemed to accept that as her real Twitter account, Ex-Spionin fragt: "Snowden, willst Du mich heiraten?" 04.07.13.

Yes, Edward Snowden, this could be you (well, maybe!)

Honey trap? Publicity stunt by Chapman? A great opportunity for Snowden? I mean, shoot, if you have to spend the rest of your life at the Moscow Airport, you can see why he might want some company!

Then again, this DPA story "Chapman" liebt "Snowden": Twitter-Romanze amüsiert Moskau Salzburger Nachrichten 05.07.2013 was more cautious on whether it is really her Twitter account.

The Chapman story is entertaining. Especially with The Americans on hiatus for the summer. Speaking of which, Chapman and her fellow spies busted in 2010 were the inspiration for the series: Olivia B. Waxman - Q&A: The CIA Officer Behind the New Spy Drama The Americans Time 01/30/2013

But the diplomatic flaps that the Snowden affair and what seems to be hamhanded handling of it by the Obama Administration are more series that Anna Chapman publicity stunts. The revelations of NSA spying on the EU nations has caused some upset. And it seems to be more than just leaders doing the required posturing for domestic political reasons to show they maintain some national pride. Stephen Walt writes in News Flash: States Spy on Each Other Foreign Policy 07/03/2013:

The National Security Agency has done us all a service by reminding the world that international politics is still a) inherently competitive and b) primarily conducted by nation-states. I refer, of course, to the recent revelations that in addition to spying on U.S. citizens, the National Security Agency (NSA) has also been spying on America's European allies. You know: our closest strategic partners!

But he also notes that there may be some substantive consequences to this:

Which is not to say this aspect of the Snowden affair won't have significant consequences. Exposure of the NSA's efforts is bound to complicate efforts to negotiate a transatlantic trade and investment agreement [TTIP], an initiative that faced plenty of obstacles already. It is also going to give ammunition to all those people who are worried about the globalization of information and who would like to see governments do more to protect privacy and limit both corporate and governmental data-collection. And that makes me wonder whether we are now at the high-water mark of loosely regulated global connectivity, and that all these revelations will eventually lead both democracies and authoritarian societies to place much stricter limits on how information flows between societies (and individuals).

If so, then you should probably enjoy the Wild West of Internet freedom while you can, before the firewalls go up.

As I've said before, I won't be crying if EU upset over the spying disrupts the progress of the TTIP negotiations, because it's already looking to be a bad deal for most people in the countries affected. And speaking of which, I see indications that the real upset by EU government was over the extent of what is still called "industrial espionage." In other words, the EU One Percent is especially worried that the NSA is tapping into private trade and proprietary information and passing it on to American corporations. But that's not to minimize fears on the part of the majority that the US is tapping into their private conversations with no good reason. Spain's former Foreign Minister Ana Palacio from the conservative party (PP) also highlights the connection between uproar over NSA spying in Europe with the TTIP negotiations (The Snowden Effect Project Syndicate 07/04/2013):

... Europeans have raised serious questions about US intelligence practices. These range from the lack of professionalism implied by allowing contractors to conduct such sensitive work to America's hands-off approach toward certain allies, like the United Kingdom and New Zealand, while relegating many of its other allies – including most of the European Union – to surveillance-worthy status.

The bitter irony is that, at this suddenly inauspicious moment, Europe and the US are launching their most significant joint project since the creation of NATO – a transatlantic free-trade agreement. For the sake of its success, is it really too much to ask of the US that it play its part internationally with a bit more skill and professionalism, and that it treat its partners with respect?

Andrea Böhm argues in Purer Selbstverrat Zeit Online 05.07.2013 that the famous "soft power" of the US comes not just from the cultural industry ("Hollywood") and technological innovation ("Silicon Valley") but also from the country's continuing struggle to realize its own ideals. Joschka Fischer, for instance, the former Green Party leader and former German Foreign Minister, admire the democratic self-renewal that the US has repeatedly displayed in our history. But, Böhm notes, that struggle to realize democratic ideals looks like it is tapped out at the moment. "Amerika hat derzeit nicht die Kraft zu Selbstkorrektur. Die muss jetzt anders entstehen." ("At this time, America doesn't have the power for self-correction. It must comes from somewhere else now.") The NSA surveillance revelations have highlighted the similarities between the Obama and Cheney-Bush Administrations on extreme domestic spying practices.

And Böhm rightly points to the key problem in that regard of the state of Permanent War, of which the War on Terrorism has become a continuation of the Cold War. "Er [Obama] kann das amerikanische Militär von den Kriegsschauplätzen in Afghanistan und im Irak abziehen, nicht aber sein Land aus dem geistigen Kriegszustand lösen – und vielleicht will er es auch gar nicht." ("He [Obama] can pull the American military out of the battlefields in Afghanistan and Iraq, but not release his country out of the mental state of war - and maybe he also just doesn't want to.")

That attitude helps explain how the diplomatic hostilities over Snowden have spread to South America with the retaining of Bolivian President Evo Morales plane in Vienna this week for over 13 hours because France, Italy, Portugal and Spain withdrew overflight rights after his plane departed from Moscow. The Real News reports in Bolivians Indignant at European Treatment of President Morales 07/04/2013:

The Young Turks also report on the story in Why Is Obama Bullying the President of Bolivia? 07/04/2013:

Martín Granovsky in Lo que hay detrás Página/12 05.07.2013 notes that although the formal complaints are being directed against the European countries that played games with overflight, the main actor in this drama is clearly the United States. Bolivia is protesting, apparently with good reason, that withdrawing the overflight rights was a serious violation of diplomatic protocol and international law. They even used the word "kidnapped," to describe Evo's stopover in Vienna.

But Bolivia doesn't seem to be complaining about Austria's conduct. Austrian President Heinz Fischer posted this photo of him greeting Evo at the airport ("Boliviens Präsident Evo Morales kann Heimreise fortsetzen": Statement von Bundespräsident Heinz Fischer 03.07.2013):

Bolivian Presisdent Evo Morales and Austrian President Heinz Fischer

Less obviously plausible is Bolivia's argument that Evo's life was endangered by the overflight problem. I suppose this argument is based on the pilot's message, heard in The Young Turks report, that they had to land because their were running out of fuel.

The South American alliance UNASUR have issued a formal protest against France, Italy, Portugal and Spain in solidarity with Bolivia, Declaración de la UNASUR frente al agravio sufrido por el Presidente Evo Morales 04.07.2013, calling their action a continuation of "colonial practices." (Technically, the declaration in the name of "Las Jefas y Jefes de Estado y de Gobierno de países de la Unión de Naciones Sudamericanas (UNASUR), reunidos en Cochabamba" (the chiefs of state and government of countries of the Union of South American Nations {UNASUR} meeting in Cochabamba", Bolivia under the auspices of UNASUR. This Reuters headline spins it as South American leftist leaders rally for Bolivia in Snowden saga 07/05/2013. The actual "chiefs of state and government" were Evo Morales himself, Argentina's Cristina Fernández, Venezuela's Nicolás Maduro, Peru's Rafael Correa, Uruguay's José Mujica and Surinam's Dési Boutarese. As Reuters reports:

At the end of the summit ... a statement was issued demanding answers from France, Portugal, Italy and Spain. The United States was not mentioned in the statement.

"Europe broke all the rules of the game," Venezuelan President Nicolas Maduro said shortly after arriving at the Cochabamba airport. "We're here to tell President Evo Morales that he can count on us. Whoever picks a fight with Bolivia, picks a fight with Venezuela."

Maduro said an unnamed European government minister had told Venezuela that the CIA, the U.S. spy agency, was behind the incident.

"We are not colonies any more," Uruguayan President Jose Mujica said. "We deserve respect, and when one of our governments is insulted we feel the insult throughout Latin America." ...

Noticeably absent from the Cochabamba gathering was the president of regional heavyweight Brazil, Dilma Rousseff, who sent her international affairs adviser and a deputy foreign minister to the meeting.

The presidents and foreign ministers of Chile, Peru and Colombia, which have good relations with the United States, also stayed away. In a written statement, Colombia's foreign ministry called on Bolivia and the European governments involved to find a diplomatic solution.

Bolivia and Venezuela were also irked at receiving provisional arrest requests for Snowden from Washington, a move Bolivia called "illegal and unfounded".

The UNASUR statement (or UNASUR Six?), aka, Declaration of Cochabamba, called the overflight denials violations of international law and says that Evo was "virtually taken hostage" ("convirtiéndolo virtualmente en un rehén").

In this kind of diplomatic situation, it's important to keep in mind that politically operative assumptions are not the same as journalistically or legally documented facts. So far as I'm aware as of this writing, Washington has not admitted to pushing France, Italy, Portugal or Spain to withdraw overflight rights from Evo's plane. But it's a very plausible assumption, almost an inevitable one. Cenk Uygur in The Young Turks report does a decent job of framing that. He also addresses the uncertainty as to whether the plane was actually searched while it was on the ground in Vienna. Marcy Wheeler writes in Europe again stuck saying, "They told us they were sure" Emptywheel 07/05/2013:

In point of fact, it’s not yet clear Snowden wasn't on the plane. While Austrian authorities checked the passports of the known passengers on the plane, they apparently did not conduct a thorough search. And 3 Spaniards who showed up to conduct a search were denied entry (though Morales did stop in the Canary Islands, which would have provided another opportunity to conduct a search on Spanish territory, but by that point Morales was already making a literal international incident about his treatment).

Granovsky quotes Argentine human rights attorney Leandro Despouy, one of the authors of the 2009 UN special report that charged prisoners were being tortured in the Guantánamo gulag station, points out that some of the countries denying overflight rights to Evo's plane did grant overflight to American planes they knew to be carrying prisoners kidnapped by the United States.

Diana Cariboni and Jared Metzker comment on the Latin American angle to the story in Snowden Is No Trifling Matter IPS News 07/04/2013:

Morales' aircraft was rerouted and forced to land in Austria, where it was stuck on the tarmac for 14 hours. The governments implicated in the incident brandished technical explanations, and after hours of heated negotiations, the presidential jet was allowed to take off again.

While it was grounded, the plane and its passengers were apparently subjected to some kind of inspection, the scope of which is not yet clear. But afterwards, Austria's foreign minister, Michael Spindelegger, stated that there were only Bolivian citizens in the aircraft.

The incident violates international law, because aircraft carrying national leaders have diplomatic immunity. Bolivian diplomats complained at the United Nations that Morales had been "kidnapped" during the time he was grounded in Austria. And the indignation spread to other South American governments.

They also report on the diplomatic pressures the US is bringing against offers of asylum to Snowden. The highly unusual action against Evo Morales is part of this pressure:

Michael Shifter, president of the Washington-based Inter-American Dialogue think tank, said "It seems either the U.S. had something to do (with the decision to deny the airspace) or it was done out of a sense of solidarity with the U.S.

It is possible they made the decision alone based on a recognition of how serious this issue is to the U.S."

Shifter said that normally such a drastic step would indicate a state of war. He described it as "An extreme overreaction ... Whatever one thinks about Snowden or Morales, it seems like this was disrespectful of international law."

He also said the incident "looks terrible in political terms.“It was out of proportion. It reflects a patronising, paternalistic mindset that stronger countries can bully weaker ones."

But he disagreed with Younger that it would facilitate a Latin American refuge for Snowden. "What this ultimately underscores is how seriously the U.S. regards this case," he said.

"It may be tempting to take Snowden in in order to needle the U.S., but the consequences of that will have to be taken into consideration. The U.S., for all its weaknesses, is still the U.S.," he said. [my emphasis]

Tags: anna chapman, argentina, bolivia, cristina fernández, domestic spying, edward snowden, evo morales, obama administration, nsa spying, transatlantic trade and investment partnership, ttip

More surveillance stories

Here a couple of quick takes on the US dragnet surveillance story.

Greg Miller, Misinformation on classified NSA programs includes statements by senior U.S. officials Washington Post 06/30/2013; see commentary by Digby, Whose interests are the secrets serving? Hullabaloo 07/01/2013, Miller's article addresses one point of interpretation in the early Glenn Greenwald reporting on Edward Snowden's revelations, "News accounts of the NSA programs have also contained inaccuracies, in some cases because of the source materials. Classified NSA slides that were published by The Post indicated that the NSA was able to tap directly into the servers of Google, Microsoft, Apple and other technology companies. The companies denied that they allowed direct access to their equipment, although they did not dispute that they cooperated with the NSA."

Rick Perlstein made much of that distinction in his dispute with Greenwald over the story. See Glenn Greenwald's 'Epic Botch'? The Nation 06/13/2013 and subsequent posts in Rick's Nation blog. Perlstein relies heavily in his criticism on the arguments of Karl Fogel, which he elaborates in Epic botch of the PRISM story Rants.org 06/11/2013 and further posts on that blog.

But it has always sounded to me like a distinction without much of a difference.

Ludwig Greven, Merkel muss den USA jetzt drohen Zeit Online 01.07.2013 applauds the idea of the EU threatening the US over the Transatlantic Trade and Investment Partnership (TTIP) to get them to back off the current level of, uh, friendly espionage they the Obama Administration conducting against our EU and NATO (supposed) friends and partners.

Barrett Brown holds forth on The cyber-intelligence complex and its useful idiots Guardian 07/01/2013:

Summing up the position of those who worry less over secret government powers than they do over the whistleblowers who reveal such things, we have New York Times columnist Thomas Friedman, who argues that we can trust small cadres of unaccountable spies with broad powers over our communications. We must all wish Friedman luck with this prediction. Other proclamations of his – including that Vladimir Putin would bring transparency and liberal democracy to Russia, and that the Chinese regime would not seek to limit its citizens' free access to the internet – have not aged especially well.

An unkind person might dismiss Friedman as the incompetent harbinger of a dying republic. Being polite, I will merely suggest that Friedman's faith in government is as misplaced as faith in the just and benevolent God that we know not to exist – Friedman having been the winner of several of the world's most-coveted Pulitzer Prizes.

Tags: barack obama, domestic spying, edward snowden, obama administration, nsa spying, transatlantic trade and investment partnership, ttip

Massive NSA spying and the Transatlantic Trade and Investment Pact (TTIP)

Video report from Euronews, New NSA spy claims hit Germany as EU calls on Washington for explanations 06/30/2013


This could be one very good effect of the NSA spying revelations, to make it harder to get a deal closed on the US-EU Transatlantic Trade and Investment Pact (TTIP), a treaty currently being negotiated that is basically aimed at undercutting regulations on banks and other corporations, lowering incomes for most people and overriding existing consumer protection laws. (Claus Hecking and Stefan Schultz, Spying 'Out of Control': EU Official Questions Trade Negotiations Spiegel International 06/30/2013)

Maybe if corporations start realizing that the massive domestic surveillance programs could really start costing them money by torpedoing a treaty they want, some of them will start pushing politicians they, uh, sponsor, to put some functional privancy limits in place. Not that the TTIP would be any better because of that!

Of course, the Obama Administration and other supporters of the spectacularly wide-ranging might say this is more evidence of how Edward Snowden and news outlets that printed his and other revelations about the NSA spying program have hurt the national interests of the US.

Part of what is going on here, I say as someone who hasn't followed the news about "cyberwar" and cyber espionage in great detail, seems to be that the world is hashing out new standards for what is acceptable and unacceptable spying. Of course, all countries outlaw espionage, even for friendly countries. And all countries engage in it, including against friendly countries.

So alongside the laws that are often honored in the breach, there is an elaborate set of diplomatic protocols and side agreements about just how far one country will go in retaliating against another for routine espionage. And part of what we're seeing now is surely a shaking out of what those new informal practices and protocols will be in international law and foreign relations will be.

But as the EU's reaction shows, some European countries that are on very friendly terms with the United States think that the US stepped over that informal line. When it comes to dragnet spying, the formal, legal restrictions don't seem to concern the Obama Administration excessively.

Chris Strohm reports for Bloomberg Businessweek in A Privacy Board Was Supposed to Protect Americans From NSA Spies 06/27/2013 that the Privacy and Civil Liberties Oversight Board that is one of the "transparency" and oversight safeguards against the program being abused is about as useless as the Congress and the courts have been in exercising any oversight or imposing any limits on whatever domestic spying the President decides he wants to do.

So, we know the NSA and other federal and local agencies are conducted what collectively amounts to a gigantic domestic surveillance dragnet. The federal programs have what is apparently no effective oversight on what the Executive Branch is doing with the program. There is a secret court, the FISA court, that approves broad Executive requests and issues secret warrants but it's all secret. Citizens can't get any relief from the regular federal court system because the Administration argues no one has standing to take action unless they can prove they're being spied on and they can't prove that unless the Administration provides information on the programs and they don't because they're secret. There is nominal Congressional oversight, but none of them can talk publicly and explicitly about programs going on that they see are dangerous or illegal because the programs are secret. Even when Members of Congress think Administration officials are committing the federal felony of lying to Congress about the programs, they can't say publicly why they think a crime is being committed because it's all secret.

Supposedly these programs are helping the Administration catch terrorists all over the place. But they can't tell us anything convincing on who or how because it's secret. And the revelations about the program from Snowden's leaks are damaging the anti-terrorism effort badly. But they can't say how, either, because it's all secret. Except for the leaks of apparently classified information that say it's having some bad effects, leaks which aren't prosecuted by the Administration. Or officially verified. Because it's all secret.

The mainstream media, to the extent they don't try to ignore the programs altogether, are generally uninterested in serious investigative reporting on them - fortunately with a few exceptions. Since everything's secret, the public's information on what their government is doing with these vast surveillance programs, even on the broad outlines of the programs, is largely coming from whistleblowers who risk espionage charges, life in prison or indefinite exile abroad to make the information public. Even when the actions revealed may be illegal actions against American citizens. And the conventional wisdom among the Beltway Village reporters is more inclined to criticize the government for not having caught the leakers sooner than to push for more responsible reporting on the massive domestic spying programs.

I suppose if you think that Obama, and all of the folks at the Pentagon, the CIA, the FBI, and all of the 1.4 million holders of security clearances, many of them working at private contractors like Edward Snowden was, will always be honest and responsible in their acquisition and use of the information, then it's all great. Even though anonymous pro-Administration sources are telling the press that it will take the government months yet to figure out what all Snowden may have taken.

I'm certainly not convinced.

Tags: barack obama, domestic spying, edward snowden, guantánamo, obama administration, transatlantic trade and investment partnership, ttip