The American Bear


White House Tries to Prevent Judge From Ruling on Surveillance Efforts |

The Obama administration moved late Friday to prevent a federal judge in California from ruling on the constitutionality of warrantless surveillance programs authorized during the Bush administration, telling a court that recent disclosures about National Security Agency spying were not enough to undermine its claim that litigating the case would jeopardize state secrets.

The CIA’s Resistance to 6,300-Page Report on the Agency’s Use of Torture | The Dissenter

The Senate Select Committee on Intelligence produced a 6,300-page report on the CIA’s detention and interrogation program that has still not been declassified in some form for the public to read. And, now New Yorker‘s Jane Mayer has reported on an episode involving the confirmation of a former high-ranking CIA lawyer to serve in a similar position at the Pentagon.

Sen. Mark Udall of Colorado, who serves on the intelligence committee and has been openly campaigning for the report to be released, put a “hold” on Stephen W. Preston’s confirmation. He placed the hold to get Preston to answer some questions about a conflict that has been ongoing between the CIA and the committee particularly over the report that addresses the CIA’s use of torture techniques under President George W. Bush.

Mayer obtained a copy of Preston’s answers to seven questions Udall asked. The answers suggest, as of August 9, the CIA had probably still not bothered to read the 6,300-page report.

The CIA has had since December 14, 2012, when the committee provided a copy of the report to the agency, to respond. It was given a deadline of February 15, 2013. However, “no one person at the CIA has read the full 6,300-page Committee Study.” What they have responded to is bullet points in a small 50-page summary within the report and not even a 300-page Executive Summary.

Preston explained to Udall the agency had undertaken a review and responded to to it to the “full extent believed possible given its volume and that of the underlying record material, and given very limited time constraints, imposed originally by the Committee’s 60-day deadline and, once that was exceeded, by the practical imperative to respond expeditiously following the appointment of a new Director”—John Brennan.

The acting director at the time “adopted a team approach, relying on a group of experienced intelligence officers, rather than a single individual, to conduct the review and prepare comments. He deemed it impractical to respond on a line-by-line basis to the 6,300-page report in any reasonable timeframe, so he directed the team to focus on the study’s 20 conclusions and conduct a ‘deep dive’ on a substantial portion of the study viewed as the basis for a number of the study’s central conclusions.”

Is that somehow supposed to excuse the fact that nobody read the entire report? [++]

James Comey remained at Justice Department as monitoring went on | Spencer Ackerman

James Comey famously threatened to resign from the Justice Department in 2004 over the warrantless surveillance of Americans’ internet records. But once Justice Department and National Security Agency lawyers found a novel legal theory to cover the surveillance, the man Barack Obama tapped last week to lead the FBI stayed on as deputy attorney general for another year as the monitoring continued.

Comey was the acting attorney general in March 2004, when long-simmering legal tensions over the online “Metadata” surveillance pitted the Justice Department and FBI against the Bush White House and NSA. That incident, dramatically recounted by Comey to the Senate in May 2007, earned the 6ft 8in former federal prosecutor a reputation for integrity that has become central to his persona.

President Obama directly referred to that reputation when he nominated Comey to take over the FBI on June 21. Hovering over the announcement were the Guardian and Washington Post’s revelations of wide-ranging surveillance efforts.

“To know Jim Comey is also to know his fierce independence and his deep integrity,” Obama said. “He was prepared to give up a job he loved rather than be part of something he felt was fundamentally wrong.”

Except that a classified report recounting the incident, acquired by the Guardian, complicates that view. Comey threatened to resign over the perceived illegality of one aspect of the surveillance. But he remained at the Justice Department for another year as that effort, operating under a new legal theory, continued nearly unchanged. [++]

U.S. charges Snowden with espionage | The Washington Post

Federal prosecutors have filed a sealed criminal complaint against Edward Snowden, the former National Security Agency contractor who leaked a trove of documents about top-secret surveillance programs, and the United States has asked Hong Kong to detain him on a provisional arrest warrant, according to U.S. officials.

Snowden was charged with espionage, theft and conversion of government property, the officials said.

The complaint was filed in the Eastern District of Virginia, a jurisdiction where Snowden’s former employer, Booz Allen Hamilton, is headquartered, and a district with a long track record in prosecuting cases with national security implications.

A Justice Department spokeswoman declined to comment.

Snowden flew to Hong Kong last month after leaving his job at an NSA facility in Hawaii with a collection of highly classified documents that he acquired while working at the agency as a systems analyst.

[…] There was never any doubt that the Justice Department would seek to prosecute Snowden for one of the most significant national security leaks in the country’s history. The Obama administration has shown a particular propensity to go after leakers, and has launched more investigations that any previous administration.

Justice Department officials had already said that a criminal investigation of Snowden was underway and was being run out of the FBI’s Washington field office in conjunction with lawyers from the department’s National Security Division.

By filing a criminal complaint, prosecutors have a legal basis to make the request of the authorities in Hong Kong. Prosecutors now have 60 days to file an indictment, probably also under seal, and can then move to have Snowden extradited from Hong Kong for trial in the United States.

Snowden, however, can fight the U.S. effort to have him extradited in the courts in Hong Kong. Any court battle is likely to reach Hong Kong’s highest court, and could last many months, lawyers in the U.S. and Hong Kong said.

The United States has an extradition treaty with Hong Kong, and U.S. officials said cooperation with the Chinese territory, which enjoys some autonomy from Beijing, has been good in previous cases.

The treaty, however, has an exception for political offenses, and espionage has traditionally been treated as a political offense. Snowden’s defense team in Hong Kong is likely to invoke part of the extradition treaty with the United States, which states that suspects will not be turned over to face criminal trial for offenses of a “political character.”

Charges under the espionage act since 1917:

Barack Obama 7. All other presidents 3.

On whistleblowers and government threats of investigation | Glenn Greenwald

… Like puppets reading from a script, various Washington officials almost immediately began spouting all sorts of threats about “investigations” they intend to launch about these disclosures. This has been their playbook for several years now: they want to deter and intimidate anyone and everyone who might shed light on what they’re doing with their abusive, manipulative exploitation of the power of law to punish those who bring about transparency.

That isn’t going to work. It’s beginning completely to backfire on them. It’s precisely because such behavior reveals their true character, their propensity to abuse power, that more and more people are determined to bring about accountability and transparency for what they do.

They can threaten to investigate all they want. But as this week makes clear, and will continue to make clear, the ones who will actually be investigated are them.

The way things are supposed to work is that we’re supposed to know virtually everything about what they do: that’s why they’re called public servants. They’re supposed to know virtually nothing about what we do: that’s why we’re called private individuals.

This dynamic - the hallmark of a healthy and free society - has been radically reversed. Now, they know everything about what we do, and are constantly building systems to know more. Meanwhile, we know less and less about what they do, as they build walls of secrecy behind which they function. That’s the imbalance that needs to come to an end. No democracy can be healthy and functional if the most consequential acts of those who wield political power are completely unknown to those to whom they are supposed to be accountable.

Holder’s Off-the-Record Meetings with the Press: A Ploy Intended to Make a Public Relations Point | Kevin Gosztola

[…] During the meeting, participating media executives “reached an agreement with the Justice Department under which they could describe what occurred during the meeting in general terms.” That they would need permission from Holder to discuss the Obama administration’s attitudes around policies and procedures that have profound implications for freedom of the press is a sad statement on establishment media organizations.

James Warren, Daily News Bureau Chief, described how “press representatives” pushed Holder “to consider internal department changes that might prompt greater discretion and avoid what the media feels can be overly broad subpoenas.” There was a “forthright and civil back-and-forth” that “saw the two sides also discuss possible changes in laws relevant to seeking subpoenas of journalists’ phone records and emails.” Yet, they reiterated a favorite administration talking point, that “they seek a balance between protecting national security and honoring the role of a largely unfettered media in a democracy,” which media outlets are undoubtedly tired of hearing, especially since the administration’s record suggests that is not really true.

Politico offered a summary of the meeting, which included an anonymous quote from one of the five journalists at the meeting. It was further evidence of how some of the media organizations had decided to be fully compliant with the Obama administration in these meetings:

The guidelines require a balance between law enforcement and freedom of the press, and we all argued that the balance was out of kilter, with the national security and law enforcement interests basically overwhelming the public’s right to get information…The language concerning ‘aiding and abetting’ comes out of the Privacy [Protection] Act, and they discussed trying to revise that language so that reporters don’t need to be defined as co-conspirators in order to execute search warrants.

In other words, if the administration could do it all over again, they would not label Rosen a “co-conspirator” but they would still investigate him as if he were one. Anyone who finds this to be a reassuring “shift” is desperately searching for a silver lining.

[…] These meetings are not likely to lead to any meaningful change. The result of the review will, at best, advocate for cosmetic changes. The administration will still push a media shield law re-introduced in Congress that has a broad national security exception that would not have protected Rosen’s privacy. Actions will continue to favor national security agencies over journalists’ right to freedom of the press.

The Obama administration understands what is at stake here: the ability of government to control the flow of information and maintain the secrecy it wants to govern without being scrutinized. Whatever adjustments the Justice Department makes will be carefully calculated so the administration still has maximum authority to pursue leaks investigations as it puts in place guidelines to forestall any actions that could lead to outrage among the press. So, in that respect, media organizations, who wisely chose not to participate, are likely to be vindicated as it becomes more and more clear this was some public relations operation put on by the Obama administration.

Today Attorney General Eric Holder held a meeting — the second of three — with journalists from high-profile organizations including the ABC, The Wall Street Journal, and POLITICO, in order to discuss how to placate them during any potential, future Department of Justice wiretapping. Or something. It’s hard to know exactly what was discussed, since the meeting was off the record. This fact raised the hackles of several outlets including the AP (well, yeah, guys), The New York Times, CNN, and the Huffington Post, all of whom decided to officially skip the whole thing if they weren’t free to report on what was said.

CNN and Huffpo said they would certainly go if the meeting were on the record. And NY Times executive editor Jill Abramson said, “It isn’t appropriate for us to attend an off-the-record meeting with the attorney general.” Huffington Post Washington bureau chief, Ryan Grim added, “A conversation specifically about the freedom of the press should be an open one. We have a responsibility not to betray that.” Grim must not be a fan of the Obama administration’s long series of ironic moves designed to make their puffery about “openness” more and more hilarious. (One of the best was Obama accepting an award for transparency in a private meeting….)


Also, much of the media is disinterested in protecting “unofficial” journalists, but the rules have changed in this here internet age — it’s not just the AP who deserves to have their phone records untapped. Arguably it’s worse with them, because of the chilling effect on investigative reporting. But what about the chilling effect on political dissent that might come from the allegation that every phone call in the US is being recorded? And much has been said about the Obama administration’s alarming war on whistleblowers, which is more or less another arm of its war on the press (only the press is a lot less interested in the former) but again — if the AP wiretapping is the Rubicon on acceptability, that’s great the press has finally had enough. But that line was there and ignored since, oh, let’s say the moment Candidate Obama voted for telecom immunity for companies that helped the Bush administration in their wiretapping. In short, we’ll see how long the press outrage lasts.

(via prosveshcheniye)

(Source: jayaprada)

Bill Black: How Dare DOJ Insult HSBC’s Crooks as Less “Professional” than Liberty Reserve’s Crooks? | naked capitalism

[T]wo of the largest banks in the world, [HSBC and Standard Chartered], which reap massive explicit and implicit subsidies from the government, were criminal enterprises for at least a decade. Each engaged in violations that were vastly larger than Liberty Reserve. Liberty Reserve’s violations were huge, severe, and warranted the toughest possible prosecution – complete with freezing and forfeiting all of its accounts. The violations of the banks, by contrast, were massively larger, occurred over a longer period, led to vastly greater profits for the banks and the officers, and did vastly greater harm to the world including the loss of life and the potential mass loss of life in the future. DOJ refused to prosecute any of the officers for “knowing and willful criminal conduct.” Incredibly, it insisted on only a two-year period of DOJ leverage over Standard Chartered’s operations to ensure (short-term) compliance with the law. Standard Chartered promptly violated the agreement – and DOJ insisted they apologize.

The DOJ’s claim that Liberty Reserve’s leadership was “professional” and “sophisticated” is farcical. They were clowns. Their web site is illiterate (once one gets past the initial screen). Their invitations to join the many Ponzi schemes they pushed on their web pages are so unprofessional (though littered with the word “professional”) and unsophisticated that one cannot have any sympathy for anyone victimized by the Ponzis. Here’s an example of one of the pitches that is more literate in English (but financially illiterate):

By far our most popular investment pays investors a daily return of 900% daily [sic] for a period of 4 days for a total return of 3600% with a minimum investment of only $50,000 USD!

The word DOJ should have ascribed to the leaders of the Liberty Reserve control fraud was “audacity” – not any variant of “professional” or “sophisticated.” Audacity is the characteristic that separates the most dangerous frauds from their peers. [++]

HSBC money-laundering investigation letters spark questions over rushed fine |

After a decade of investigations, US authorities last September decided to move “as quickly as possible” to fine HSBC on money laundering charges that the Treasury Department concluded were the most “egregious” it had ever seen, according to newly released documents.

A series of emails and letters released to Public Citizen, a Washington-based advocacy group, paint a partial picture of the Treasury Department trying to catch up after a hard-hitting Senate report had blasted the British bank and a New York regulator had threatened to revoke the license of another British institution, Standard Chartered.

Bart Naylor, a policy advocate at Public Citizen, said the documents posed questions about why the Treasury Department wanted a quick resolution to the HSBC scandal. “Why all of a sudden do they want a resolution after 10 years of investigation? Was Treasury pre-empting more vigorous action by the Justice Department? These are questions that need to be answered,” he said.

The documents, which were first reported in the New York Times, are the first of a series that Public Citizen is hoping to obtain from the Treasury Department, Justice Department and others, under the Freedom of Information Act.

HSBC and Standard Chartered were fined last year over allegations they had acted as banker for rogue states, terrorists and drug lords, channeling billions of dollars through the US financial system. The fines, especially HSBC’s record $1.9bn penalty, proved controversial with politicians and other critics, who demanded to know why the Justice Department had not pursued criminal actions against the banks and bankers and questioned whether some financial institutions had become too big to indict.

The newly released emails claim Treasury officials were caught unawares last August, by a New York prosecutor’s threat to revoke Standard Chartered’s banking license. The documents show that US officials were under pressure from their UK counterparts not to revoke Standard’s license, a move that would have been a potentially fatal blow for the bank.

Last September, treasury secretary Tim Geithner received a briefing note from an unnamed Treasury official ahead of a meeting with George Osborne, Britain’s chancellor of the exchequer. Osborne had written to the Federal Reserve chairman, Ben Bernanke, on 10 September, following the New York Department of Financial Services’ (NYDFS) scathing attack on Standard Chartered. Benjamin Lawsky, superintendent of the NYSDFS, said Standard Chartered had processed $250bn (£160bn) in illegal transactions over nearly a decade of business with US-sanctioned countries including Libya, Burma and Sudan. [++]

Bonus: James Comey, Barack Obama’s nominee to head the FBI, is a board member at HSBC. More specifically, “an independent non-executive Director and a member of the Financial System Vulnerabilities Committee.” He’ll be helpful.

Multiple media outlets just say no to Eric Holder meeting

Several news organizations invited to meet this week with Attorney General Eric Holder to discuss the Justice Department’s guidelines governing security leak investigations that involve reporters are refusing the invitation citing the meetings’ off-the-record status.

A Justice Department official said on Wednesday that meetings with select bureau chiefs will be off the record to “best facilitate the candid, free-flowing discussions we hope to have in order to bring about meaningful engagement.” [OK.]

Holder called the meetings this week as part of a department review directed by President Barack Obama after controversy over the secret seizure of Associated Press reporters’ and editors’ phone records and secret monitoring of Fox News reporter James Rosen.

But by Thursday afternoon, Reuters, Fox News, CNN, McClatchy and Huffington Post had joined the Associated Press and The New York Times in deciding to boycott the meetings due to their off-the-record status.

"I told folks that I’d be happy to participate if the meeting were on the record. And I offered to bring our first amendment lawyer with me," McClatchy’s Washington Bureau Chief James Asher wrote in an email to Yahoo News. "So far, no response."

As a result of [the nearly universal uproar over attacks on press freedoms], the administration has offered characteristically symbolic gestures to placate the growing media anger, but those gestures actually solve nothing. Obama announced he was once again supporting a shield law that provides some protections to journalists, but media outlets quickly pointed out that, by design, it would have done little if not nothing to prevent any of these abuses, and could arguably empower the DOJ even more to invade journalists’ communications*. Then the Obama White House proudly announced that there would be an ‘investigation’ into the DOJ’s treatment of whistlelbowers and journalists, an investigation that would be led by … Eric Holder himself; that’s DC oversight: we’re going to conduct a robust investigation of ourselves.

Glenn Greenwald

* Some thoughts I put together last week on the proposed shield law and how it would likely make things worse.

Holder’s refusal to accept responsibility for the AP investigation was something of a change for the political insider. His value to President Obama has been his absolute loyalty. Holder is what we call a ‘sin eater’ inside the Beltway — high-ranking associates who shield presidents from responsibility for their actions. Richard Nixon had H.R. Haldeman and John Ehrlichman. Ronald Reagan had Oliver North and Robert ‘Bud’ McFarlane. George W. Bush had the ultimate sin eater: Dick Cheney, who seemed to have an insatiable appetite for sins to eat. … For Obama, there has been no better sin eater than Holder. When the president promised CIA employees early in his first term that they would not be investigated for torture, it was the attorney general who shielded officials from prosecution. When the Obama administration decided it would expand secret and warrantless surveillance, it was Holder who justified it. When the president wanted the authority to kill any American he deemed a threat without charge or trial, it was Holder who went public to announce the ‘kill list’ policy.

Fire Eric Holder

In explaining the reasons why Holder should go, Turley lays out the reasons why Holder won’t go … he’s far too useful.

Jeremy Hammond Pleads Guilty to Being Involved in the Stratfor Leak | The Dissenter

The activist accused by the United States government of hacking into the private intelligence firm, Stratfor, and releasing the firm’s emails to WikiLeaks pled guilty to violating the Computer Fraud and Abuse Act (CFAA). He now faces up to ten years in prison and is scheduled to be sentenced on September 6 of this year.

Hammond wrote in a statement published on the “Free Jeremy Hammond” website that he had agreed to a “non-cooperating plea agreement” so he could finally tell the world what he had done and why, “without exposing any tactics or information to the government and without jeopardizing the lives and well-being of other activists on and offline.”

“During the past 15 months I have been relatively quiet about the specifics of my case as I worked with my lawyers to review the discovery and figure out the best legal strategy. There were numerous problems with the government’s case, including the credibility of FBI informant Hector Monsegur,” he stated. “However, because prosecutors stacked the charges with inflated damages figures, I was looking at a sentencing guideline range of over 30 years if I lost at trial. I have wonderful lawyers and an amazing community of people on the outside who support me. None of that changes the fact that I was likely to lose at trial.”

The government would not have been willing to let him go free if he was found not guilty. They would have apparently continued to zealously pursue him for his involvement.

“Even if I was found not guilty at trial, the government claimed that there were eight other outstanding indictments against me from jurisdictions scattered throughout the country,” according to Hammond. “If I had won this trial I would likely have been shipped across the country to face new but similar charges in a different district. The process might have repeated indefinitely. Ultimately I decided that the most practical route was to accept this plea with a maximum of a ten year sentence and immunity from prosecution in every federal court.”

For fifteen months, Hammond has been in prison at the Manhattan Correctional Center and held without bail. Some of the time he has been in solitary confinements. His family and friends have been able to contact or visit him. He had no interest in seeing this “grinding process” repeat.

The plea freed him up to openly admit to his supporters that he had worked with Anonymous to hack into Stratfor and other websites. He called it a “relief” to be able to admit that he had hacked into not only Stratfor but also “military and police equipment suppliers, private intelligence and information security firms, and law enforcement agencies.”

“I did this because I believe people have a right to know what governments and corporations are doing behind closed doors. I did what I believe is right,” he declared.

[…] Hammond, especially if the judge feels he has no remorse for hacking into Stratfor and is proud, is likely to receive a sentence close to the maximum of ten years. If he does go to jail for that length of time, it will stand in stark contrast to the recent sentencing of three LulzSec hacktivists in the United Kingdom.

Ryan Ackroyd and Jake Davis were both sentenced to 15 months and one year in prison, respectively. Mustafa al-Bassam was sentenced to 300 hours of community service. They were each involved in hacking into major institutions but received much shorter sentences than Hammond is likely to receive.

As the National Lawyers Guild points out, this is all due to the incredible power the government has to use an “outdated” and “vague” computer crimes statute to come down hard on hacktivists:

…[T]he CFAA has seen increasing use against information activists in an effort to criminalize everything from the sharing of links to violating terms of service agreements. The most highly publicized CFAA case involved 26 year-old information activist Aaron Swartz, who was threatened with decades in prison for downloading freely available documents from the academic database JSTOR. Swartz took his own life earlier this year…

The disparity in punishment for hacking is made more clear by the fact that, even though Davis will serve only one year in the United Kingdom, the US government may pursue his extradition to the US to face trial for his involvement in hacking.

What happened today is indicative of how justice increasingly seems to work. One is over-charged and made to experience a level of pretrial punishment before being convicted of any crimes so that prosecutors can ensure the case is won. They intimidate those with limited resources and individuals who believe they did not convict any crime by threatening them with a future where they might be hauled into court to defend themselves again and again.

57 Civil Liberties, Press Freedom and Public Interest Groups Demand Answers on Targeting of Journalists | Free Press


On Friday, Free Press and 57 civil liberties, digital rights, press freedom and public interest groups sent a letter to Attorney General Eric Holder demanding a full, transparent account of the Justice Department’s targeting of journalists and whistleblowers.

Representing millions of Americans, the groups include the American Civil Liberties Union, the American Library Association, the Communications Workers of America, the Electronic Frontier Foundation, the Society of Professional Journalists, the Sunlight Foundation and the Writers Guild of America East. (The full list of signers can be found below.) In addition, Free Press delivered more than 16,000 petition signatures urging the Justice Department to protect press freedom.

600 Days after Assassinating Anwar al-Awlaki, Administration Admits Doing So | emptywheel

In this letter boasting of “unprecedented transparency,” Eric Holder officially tells Congress that since 2009 the government has killed 4 Americans: Anwar al-Awlaki was specifically targeted and killed, and Samir Khan, Abdulrahman al-Awlaki, and Jude Mohammed were “not specifically targeted.”

One paragraph of the letter details how Umar Farouk Abdulmutallab told US officials of Awlaki’s involvement in the UndieBomb plot.

Too bad that in two of three confessions, Abdulmutallab said someone besides Awlaki did the things Holder lists here. Too bad that Abdulmutallab’s lawyer now says the solitary confinement associated with the interrogations in which he did implicate Awlaki made him incompetent.