Speaking of Trump's phone calls...

White House efforts to limit access to President Donald Trump's conversations with foreign leaders extended to phone calls with Saudi Crown Prince Mohammed bin Salman and Russian leader Vladimir Putin, according to people familiar with the matter.

Those calls -- both with leaders who maintain controversial relationships with Trump -- were among the presidential conversations that aides took remarkable steps to keep from becoming public.

In the case of Trump's call with bin Salman, officials who ordinarily would have been given access to a rough transcript of the conversation never saw one, according to one of the sources. Instead, a transcript was never circulated at all.

[...]

Typically, there would be several senior officials listening in to a call with an important foreign leader and then a transcript of the call would be circulated to those officials.

[...]

The call — which the person said contained no especially sensitive national security secrets — came as the White House was confronting the murder of journalist Jamal Khashoggi, which US intelligence assessments said came at the hand of the Saudi government.

  CNN

Nothing suspicious there.

It's not clear if aides took the additional step of placing the Russian phone calls in the same highly secured electronic system that held a now-infamous phone call with Ukraine's president and which helped spark a whistleblower complaint made public this week, though officials confirmed calls aside from the Ukraine conversation were placed there.

I think Congressional oversight needs to see those calls.

Only Secretary of State Mike Pompeo and then-National Security Adviser John Bolton would be in the room for [calls that would typically include several senior officials], the former White House official said.

[...]

The Washington Post reported Friday that Trump told two top Russian officials during a 2017 Oval Office meeting that he was unconcerned about the country's interference in the 2016 election, which led White House officials to tightly restrict access to Trump's comments.

"If true, the reports that President Trump may have told close associates of Putin that he didn't mind Russian interference in the US elections are extremely harmful to both our national security and the integrity of our elections," Senate Minority Leader Chuck Schumer said in a statement released Saturday. "It's one of the most disturbing things we've learned yet."

I don't know. The list of disturbing things in this administration is long.

...but hey, do what you want...you will anyway.

They don't get caught lying this way

So reporters have to go out and find the truth.  Not all bad.

But why would she think there'd be a "sudden new spox"?

...but hey, do what you want...you will anyway.

Jesus, it's a coup

As a White House lawyer in the Bush administration, Judge Brett Kavanaugh challenged the accuracy of deeming the Supreme Court’s landmark Roe v. Wade abortion rights decision to be “settled law of the land,” according to a secret email obtained by The New York Times.

The email, written in March 2003, is one of thousands of documents that a lawyer for President George W. Bush turned over to the Senate Judiciary Committee about the Supreme Court nominee but deemed “committee confidential,” meaning it could not be made public or discussed by Democrats in questioning him in hearings this week. It was among several an unknown person provided to The New York Times late Wednesday.

[...]

“I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so.”

[...]

The court now has four conservative justices who may be willing to overturn Roe — Justices Thomas and John C. Roberts Jr., Samuel Alito and Neil Gorsuch — and if he is confirmed, Judge Kavanaugh could provide the decisive fifth vote.

[...]

In another e-mail, analyzing a complex May 2003 ruling by a panel of three district court judges about a campaign-finance disclosure law, Judge Kavanaugh appeared to exhibit hostility to a rule that corporate and union funds could not be used to pay for issue ads that attacked or supported a specific candidate for federal office; instead funding for such ads would have to come from separate funds and disclosed to the Federal Elections Commission.

Noting that that rule was arguably more expansive than another part of the regulations the panel had struck down, Judge Kavanaugh wrote that the decision by two of the judges to uphold that rule was “both strange and dangerous.” Fortunately, he added, the Supreme Court was likely to take a fresh look at the issue and would “not care” what the lower-court judges thought.

  NYT

Begging the question: Why are any of Kavanaugh's opinions on court cases withheld from the public?

And in yet another, he offered advice for an appeals court nominee who was scheduled to meet with two Democratic senators:

“She should not talk about her views on specific policy or legal issues,” he wrote. “She should say that she has a commitment to follow Supreme Court precedent, that she understands and appreciates the role of a circuit judge, that she will adhere to statutory text, that she has no ideological agenda.”

Be vague. Don't let them know what you really think. Exactly his behavior in the current hearings.

...but hey, do what you want...you will anyway.

Mysterious tree removal

A mystery is brewing at the White House about what happened to the oak tree President Donald Trump and French President Emmanuel Macron planted there last week.

[...]

The oak sprouted at a World War I battle site that became part of U.S. Marine Corps legend.

About 2,000 U.S. troops died in the June 1918 Battle of Belleau Wood, fighting a German offensive.

[...]

The sapling was a gift from Macron on the occasion of his state visit.

News photographers snapped away Monday when Trump and Macron shoveled dirt onto the tree during a ceremonial planting on the South Lawn. By the end of the week, the tree was gone from the lawn. A pale patch of grass was left in its place.

The White House hasn’t offered an explanation.

  AP News

The French president’s office says there’s nothing mysterious about the disappearance of an oak tree he planted on the White House lawn.

It was put in quarantine, like other plants or animals brought into U.S. territory.

  APNews

Why wouldn't the White House simply say so?

...but hey, do what you want...you will anyway.

Surprising ISIS

The Pentagon wants Islamic State terrorists to be pleasantly surprised by US troop deployments in Iraq and Syria, with Washington apparently adopting a new policy of limiting soldier movement disclosures and resorting to unannounced “temporary” missions.

  RT

"Pleasantly" surprised?

Remember all the times candidate Trump complained that the US military always announces what its going to do? This isn't a Pentagon decision.

“In order to maintain tactical surprise, ensure operational security and force protection, the coalition will not routinely announce or confirm information about the capabilities, force numbers, locations, or movement of forces in or out of Iraq and Syria,” Eric Pahon, a Pentagon spokesman, told the Los Angeles Times this week.

[...]

Ned Price, National Security Council spokesman under President Barack Obama, criticized the new approach of Trump's administration not to share such crucial details with Americans.

“The position of the Obama administration was that the American people had a right to know if servicemen and women were in harm’s way,” Price told the LA Times. “It’s truly shocking that the current administration furtively deploys troops without public debate or describing their larger strategy.”

Yeah, yeah. Like the American public was told about the Bin Laden raid? Yeah, I remember the public debate about that operation.  Don't I?  Didn't we all agree it was a good idea?

...but hey, do what you want...you will anyway.

From the Snowden Files

For several years, British human rights campaigners and lawmakers have been pressuring the government to provide information about whether it has had any role aiding U.S. targeted killing operations, yet they have been met with silence. In particular, there has been an attempt to establish whether the U.K. has aided U.S. drone bombings outside of declared war zones — in countries including Yemen, Pakistan, and Somalia — which have resulted in the deaths of hundreds of civilians and are in some cases considered by United Nations officials to possibly constitute war crimes and violations of international law.

Though the Snowden documents analyzed by The Intercept state that Menwith Hill has aided “a significant number” of “capture-kill” operations, they do not reveal specific details about all of the incidents that resulted in fatalities. What is clear, however, is that the base has targeted countries such as Yemen, Pakistan, and Somalia as part of location-tracking programs like GHOSTHUNTER and GHOSTWOLF — which were created to help pinpoint individuals so they could be captured or killed — suggesting it has played a part in drone strikes in these countries.

[...]

“If the U.K. government knows that it is transferring data that may be used for drone strikes against non-combatants … that transfer is probably unlawful,” Stratford told the members of Parliament. “An individual involved in passing that information is likely to be an accessory to murder.”

  The Intercept

Which may be why there are only a few British citizens in the compound. The majority are Americans, whose own lawless government absolves them of any international or moral responsibility.

Read about it here.

...but hey, do what you want...you will anyway.

Yep. This Is America

...but hey, do what you want...you will anyway.

We've All Seen It, But It's Still Classified

On September 24 I gave a keynote presentation at Purdue University about the NSA, Edward Snowden, and national security journalism in the age of surveillance. It was part of the excellent Dawn or Doom colloquium, which I greatly enjoyed. The organizers live-streamed my talk and promised to provide me with a permalink to share.

After unexplained delays, I received a terse email from the university last week. Upon advice of counsel, it said, Purdue "will not be able to publish your particular video" and will not be sending me a copy.

[...]

It turns out that Purdue has wiped all copies of my video and slides from university servers, on grounds that I displayed classified documents briefly on screen. A breach report was filed with the university’s Research Information Assurance Officer, also known as the Site Security Officer, under the terms of Defense Department Operating Manual 5220.22-M. I am told that Purdue briefly considered, among other things, whether to destroy the projector I borrowed, lest contaminants remain.

[...]

Just after posting this item I received an email from Julie Rosa, who heads strategic communications for Purdue. She confirmed that Purdue wiped my video after consulting the Defense Security Service, but the university now believes it went too far.

[...]

By the terms of its Pentagon agreement, Purdue was officially obliged to be shocked to find that spillage is going on at a talk about Snowden and the NSA. Three secret slides, covering perhaps five of my ninety minutes on stage, required that video be wiped in its entirety.

[...]

Yes, the images I displayed had been viewed already by millions of people online. Even so, federal funding might be at stake for Purdue, and the notoriously vague terms of the Espionage Act hung over the decision. For most lawyers, “abundance of caution” would be the default choice.

[...]

I do not claim I suffered any great harm when Purdue purged my remarks from its conference proceedings. I do not lack for publishers or public forums. But the next person whose talk is disappeared may have fewer resources.

[...]

Now the security apparatus claims jurisdiction over the campus (“facility”) at large. The university finds itself “sanitizing” a conference that has nothing to do with any government contract. Where does it stop? Suppose a professor wants to teach a network security course, or a student wants to write a foreign policy paper, that draws on the rich public record made available by Snowden and Chelsea Manning? Those cases will be hard to distinguish from mine.

[...]

More importantly, to my mind, Purdue has compromised its own independence and that of its students and faculty.   The Century Foundation

Contaminants?

And, come on. We all know that nothing digital is ever really gone.

...but hey, do what you want...you will anyway.

Another Obama First

“An anti-Iranian group calling itself “United Against Nuclear Iran” (UANI)” launched a smear – or “name and shame” – campaign against Grek billionaire Victor Restis, claiming his hipping company trades with Iran. Restis denied the charge and sued, claiming that UANI destroyed his reputation. And then a strange thing happened…

This group of neocon extremists [UANI] was literally just immunized by a federal court from the rule of law. That was based on the claim — advocated by the Obama DOJ and accepted by Judge Ramos — that subjecting them to litigation for their actions would risk disclosure of vital “state secrets.” The court’s ruling was based on assertions made through completely secret proceedings between the court and the U.S. government, with everyone else — including the lawyers for the parties — kept in the dark.

[...]

Usually, when the U.S. government asserts the “state secrets privilege,” it is because they are a party to the lawsuit, being sued for their own allegedly illegal acts (such as torture or warrantless surveillance), and they claim that national security would be harmed if they are forced to defend themselves. In rare cases, they do intervene and assert the privilege in lawsuits between private parties, but only where the subject of the litigation is a government program and one of the parties is a government contractor involved in that program — such as when torture victims sued a Boeing subsidiary, Jeppesen, for its role in providing airplanes for the rendition program and the Obama DOJ insisted (successfully) that the case not go forward, and the victim of U.S. torture was thus told that he could not even have a day in court.

But in this case, there is no apparent U.S. government conduct at issue in the lawsuit. [...] [B]ased on what they claim about themselves, UANI is just “a not-for-profit, non-partisan, advocacy group” that seeks to “educate” the public about the dangers of Iran’s nuclear program. Why would such a group like this even possess “state secrets”? It would be illegal to give them such material. Or could it be that the CIA or some other U.S. government agency has created and controls the group, which would be a form of government-disseminated propaganda, which happens to be illegal?

  Glenn Greenwald

Gasp! Surely not.

We don’t know the answers to those questions, nor do the lawyers for the plaintiffs whose lawsuit the DOJ wants dismissed. That’s because, beyond the bizarre DOJ intervention itself, the extreme secrecy that shaped the judicial proceedings is hard to overstate.

[...]

[V]irtually everything has been hidden, even from the plaintiffs’ lawyers. Not only did the U.S. government provide no clue as to what the supposedly endangered “state secrets” are, but they concealed even the identity of the agency making the claim: was it the CIA, the Treasury Department, the State Department, some combination? Nothing is known about any of this, not even who is making the secrecy claim.

[...]

This sham worked. This week, Judge Ramos issued his ruling dismissing the entire lawsuit. [...] As a result of the DOJ’s protection, UANI cannot be sued. Among other things, it means this group of neocon extremists now has a license to defame anyone they want. They can destroy your reputation with false accusations in a highly public campaign, and when you sue them for it, the DOJ will come in and whisper in the judge’s ear that national security will be damaged if — like everyone else in the world — UANI must answer in a court of law for their conduct.

[...]

What kind of “justice system” allows a neocon “advocacy” group to be immunized from the law, because the U.S. government waltzed into court, met privately with the judge, and whispered in secret that he had better dismiss all claims against that group lest he harm national security?

The American kind.

The Bush Justice Department used this weapon to prevent its torture, detention, rendition and surveillance victims — even those everyone acknowledged were completely innocent — from having a day in court. They would simply say that the treatment of the plaintiffs was classified, and that disclosure would risk harm to national security, and subservient U.S. federal judges (an almost redundant term) would dutifully dismiss the lawsuits before they even began. It literally removed high U.S. government officials from the rule of law.

[...]

But in some important respects, this latest abuse is a step beyond that. It’s certainly true that legally immunizing brutal violations of human rights on secrecy grounds (as both the Bush and Obama DOJs have done) is worse than preventing a Greek billionaire from prosecuting a lawsuit. But to intervene in a private lawsuit in order to shield an extremist neocon group from the consequences of their actions — through secret meetings with the judge in which unaccountable “secrecy” assertions are made — is even more offensive to basic legal rights than what has preceded it.

[...]

Why they are so eager to prevent discovery and investigation into this Iran-obsessed neocon group — who funds it, who controls it, what are its objectives? — should be of great interest to everyone.

TPP Leak

WikiLeaks just released the full text of the secret Trans-Pacific Partnership (TPP) chapter on “Investor State Dispute Settlement.”1 It’s terrifying. The TPP is even worse than we thought. The leaked chapter shows how the TPP would set up a shadowy international “court system” that would have no accountability to the public.

  Fight for the Future email

WikiLeaks releases today the "Investment Chapter" from the secret negotiations of the TPP (Trans-Pacific Partnership) agreement. The document adds to the previous WikiLeaks publications of the chapters for Intellectual Property Rights (November 2013) and the Environment (January 2014).

The TPP Investment Chapter, published today, is dated 20 January 2015. The document is classified and supposed to be kept secret for four years after the entry into force of the TPP agreement or, if no agreement is reached, for four years from the close of the negotiations.

Julian Assange, WikiLeaks editor said: "The TPP has developed in secret an unaccountable supranational court for multinationals to sue states. This system is a challenge to parliamentary and judicial sovereignty. Similar tribunals have already been shown to chill the adoption of sane environmental protection, public health and public transport policies."

Current TPP negotiation member states are the United States, Japan, Mexico, Canada, Australia, Malaysia, Chile, Singapore, Peru, Vietnam, New Zealand and Brunei. The TPP is the largest economic treaty in history, including countries that represent more than 40 per cent of the world´s GDP.

  Wikileaks

Secret Trans-Pacific Partnership Agreement (TPP) - Investment Chapter

An ambitious 12-nation trade accord pushed by President Obamawould allow foreign corporations to sue the United States government for actions that undermine their investment “expectations” and hurt their business, according to aclassified document.

The Trans-Pacific Partnership — a cornerstone of Mr. Obama’s remaining economic agenda — would grant broad powers to multinational companies operating in North America, South America and Asia. Under the accord, still under negotiation but nearing completion, companies and investors would be empowered to challenge regulations, rules, government actions and court rulings — federal, state or local — before tribunals organized under the World Bank or the United Nations.

[...]

The sensitivity of the issue is reflected in the fact that the cover mandates that the chapter not be declassified until four years after the Trans-Pacific Partnership comes into force or trade negotiations end, should the agreement fail.

[...]

“This is really troubling,” said Senator Charles E. Schumer of New York, the Senate’s No. 3 Democrat. “It seems to indicate that savvy, deep-pocketed foreign conglomerates could challenge a broad range of laws we pass at every level of government, such as made-in-America laws or anti-tobacco laws. I think people on both sides of the aisle will have trouble with this.”

[...]

The United States is party to 51, including the North American Free Trade Agreement. Administration officials say they level the playing field for American companies doing business abroad, protect property from government seizure and ensure access to international justice.

But the limited use of trade tribunals, critics argue, is because companies in those countries do not have the size, legal budgets and market power to come after governments in the United States. The Trans-Pacific Partnership could change all that, they say.

[...]

But as long as a government treats foreign and domestic companies in the same way, defenders say, it should not run afoul of the trade provisions. “A government that conducts itself in an unbiased and nondiscriminatory fashion has nothing to worry about,” said Scott Miller, an international business expert at the Center for Strategic and International Studies.

  NYT

And what government would THAT be? None that we have on the planet to date. The old “if you’re not doing anything wrong, you have nothing to fear,” argument applied to governments.

People have pointed out how KORUS -- the "free trade" agreement that the US signed with South Korea a few years ago, which included draconian intellectual property rules, is "the model" for "modern free trade agreements." It was used as the basis for ACTA, and now it's often pointed to as the model for the TPP as well. When KORUS was first being debated, we wondered why a "free trade" agreement would include rules for stricter monopolies, as that seemed like the exact opposite of free trade. Free trade is about knocking down the walls to protectionism, not building more monopoly power. And yet, that's exactly what it did -- creating tremendous problems to the point that South Korea is now looking for ways to get out of the intellectual property requirements of the agreement.

And yet, defenders of the TPP still point to KORUS as the "model" for TPP and talk it up as if it's been a wonderful and successful agreement. However, it seems that others are noticing that there doesn't appear to be any "free trade" in this "free trade agreement." Instead, it's purely mercantilist cronyism, designed to limit economic growth and public welfare, to benefit a few large legacy companies.

  TechDirt

As we pointed out just recently, the USTR relies heavily on Industry Trade Advisory Committees (ITACs), which are deeply involved in these things. Members get access to the documents -- much more access than even Congress, and certainly a lot more access than the public which gets none at all. The IP ITAC is almost entirely made up of legacy industry players who come from a different era, and who know little about today's innovation. In fact, they tend to fight against innovation. As Lee notes, the USTR used to work mostly with exporters -- companies who ship stuff to foreign countries, and their general outlook on everything is from that perspective. But that makes no sense when you're talking about information.

[...]

USTR flat out rejected a recent attempt to put copyright law expert Andrew Bridges on the IP ITAC. Bridges is the person you should thank for having music in your pocket, because he defended the legality of the first MP3 player when the RIAA tried to sue it out of existence. He's also worked closely with a ton of internet companies and knows better than just about anyone I know how innovation works these days.

[...]

But the really concerning part is the insane revolving door between IP maximalist industry players and the USTR.

[...]

The USTR may claim it's trying to help promote American jobs, but it really looks like it's their own jobs that are most important to them.

  TechDirt

...but hey, do what you want...you will anyway.

British Dupe Acquitted

A law student in London, convicted of being in possession of a bomb-making manual last year was retried on a charge of plotting a terrorist attack. Of course, there had to be secrets.

Erol Incedal, 27, was cleared of preparation of acts of terrorism after a four-week retrial in which large parts of the evidence were heard inside a locked courtroom.

[...]

He [told the court] that that although he had been carrying a memory card with the bomb-making manual stored on it at the time of his arrest, he believed he had a “reasonable excuse” for having it in his possession.

However, such is the secrecy surrounding the case that it is not currently possible to report on the basis for that belief. Nor is it possible to report on other significant parts of the evidence that Incedal put forward in his defence.

Nonetheless, the jury, who did hear all the evidence, was clearly not satisfied that the prosecution had made out its case beyond reasonable doubt, and acquitted Incedal of the charge.

A small number of journalists were permitted to attend some of the sessions held in secret, but they have been warned they will be committing an offence if they disclose what they heard, unless the trial judge, Sir Andrew Nicol, lifts the extensive reporting restrictions.

[...]

When police stopped him in Ealing, west London, in September 2013, and searched his E-Class Mercedes, a piece of paper bearing the address of the London home of Tony and Cherie Blair was found inside his Versace glasses case.

Over the next two hours, while he was being held at a police station in west London and questioned about a number of motoring offences, a listening device was wired into the vehicle, and an investigation codenamed Operation Vendible was launched.

[...]

Thirteen days [later], Incedal and Rarmoul-Bouhadjar were travelling in the Mercedes when armed police forced the car to a halt [...] and shot out the tyres to prevent any escape.

The two men were arrested and were found to be in possession of almost-identical SD memory cards wrapped in masking tape and concealed inside their iPhone cases. Stored on each of the cards were[containing] a number of documents concerning explosives, including the five-page bomb-making manual.

Ministry of Defence forensic explosives experts dismissed some of those instructions as farcical.

[...]

The examination also showed that Incedal had been communicating with another person, thought to be in the Middle East, who was using an email account in the name of Zaynab Alawi.

The pair exchanged a number of messages referring to “straps” – slang for firearms. One exchange referred to [...] Kalashnikovs, and [...] a reference to an attack on a hotel, such as that carried out in Mumbai in November 2008.

The jury was able to consider Incedal’s explanation for these communicatons, but due to the secrecy surrounding the case, that explanation cannot be reported.

[...]

Despite his limited income, the jury has heard evidence that Incedal was enjoying a free-spending lifestyle.

[...]

As with so much about the case, other sources of Incedal’s money must, for the time being, remain a mystery: following his acquittal, the small group of reporters who have heard some of the secret evidence cannot disclose whether they have learned where it was coming from.

  Guardian

Let me guess. The British equivalent of the FBI.

The Secret TPP

Labor Secretary Thomas Perez and U.S. Trade Representative (USTR) Michael Froman will meet with House Democrats on Wednesday in a classified briefing to discuss the Trans-Pacific Partnership (TPP).

Members will be allowed to attend the briefing on the proposed trade pact with 12 Latin American and Asian countries with one staff member who possesses an “active Secret-level or high clearance” compliant with House security rules. Rep. Rosa DeLauro (D-Conn.) told The Hill that the administration is being “needlessly secretive.”

  The Hill

National security, dude.

“Even now, when they are finally beginning to share details of the proposed deal with members of Congress, they are denying us the ability to consult with our staff or discuss details of the agreement with experts,” DeLauro told The Hill.

In which case, one has to wonder why they are sharing anything at all.

Rep. Lloyd Doggett (D-Texas) condemned the classified briefing.

[...]

What is USTR working so hard to hide? What is the specific legal basis for all this senseless secrecy?” Doggett said to The Hill.

“Open trade should begin with open access,” Doggett said. “Members expected to vote on trade deals should be able to read the unredacted negotiating text.”

You would think. And if you vote on it without having all the information, shame on you.

 ...but hey, do what you want...you will anyway.

Hillary Clean-up

.

She's making a funny, right?

She didn't turn over all her emails to State.  I'm guessing if there's anything she didn't want "the public" to see, it's in those emails she held back.  Or ones she shredded.  Do you think?

If she's not toast for a Democratic nomination by now, she should be.

Post-Citizenfour Interview

Anyone who is still on the fence about whether they think Snowden is wrong about what he did needs to sit down and watch this video interview.  And even if you think he's done right, you will get more information than you have now.

 

 ...but hey, do what you want...you will anyway.

You Don't Need to Know

[AP's Washington bureau chief, Sally] Buzbee pointed out eight ways that the Obama administration is stifling public access to information.

[...]

“News organizations can’t shoot photos or video of bombers as they take off – there are no embeds. In fact, the administration won’t even say what country the [US] bombers fly from.”

She also expressed frustration with the government’s handling of the upcoming 9/11 trial, during which journalists are prohibited from looking at even non-classified court filings in real time.

“We don’t know what prosecutors are asking for, or what defense attorneys are arguing,” she said.

Meanwhile, basic information about the prison complex in Guantanamo Bay, Cuba is being withheld from the public, despite the fact that the Bush administration freely shared this data. The media is unable to learn how many inmates are on hunger strike in the infamous prison, or how frequently assaults on guards take place.

[...]

At the same time, federal officials have begun pressuring state and local agencies to keep quiet.

“The FBI has directed local police not to disclose details about surveillance technology the police departments use to sweep up cellphone data,” Buzbee said. “In some cases, federal officials have formally intervened in state open records cases, arguing for secrecy.”

  RT

An ignorant public is a malleable public.

Appeal Denied - USG Ordered to Release Secret Memo

A federal appeals court has ordered the release of a secret government memo that authorized the killings of Americans overseas. The American Civil Liberties Union and The New York Times had filed a lawsuit under the Freedom of Information Act seeking the legal basis for drone strikes. The lawsuit came after the United States killed the American-born cleric Anwar al-Awlaki, his 16-year-old son Abdulrahman, and Samir Khan in Yemen, despite having never charged any of them with a crime. In a unanimous ruling, a three-judge panel on the Second Circuit Court of Appeals ordered the release of the memo and other related documents. In a statement, the ACLU said the ruling marks a "resounding rejection of the government’s effort to use secrecy and selective disclosure to manipulate public opinion about the targeted killing program."

  Democracy Now

So, will the government pony up?  Or take the matter to the Supreme Court "activist" judges, where they always win.

...but hey, do what you want...you will anyway.

Legacy of the Big Dick

Mark Danner has an interesting article on Dick Cheney wherein he recounts the movie moment (one of them) in Dubya’s presidency where – if you are to believe Dubya’s memoir – the dunce prince was not even involved in his presidence enough to know that the surveillance order he signed was being resisted by his justice department.

The key passage, I think, is this:

The president had approved Stellar Wind on October 4, 2001, a few weeks after the September 11 attack, and given the temper in Washington and in the country at that time he likely could simply and easily have amended the law. “We could have gone to Congress, hat in hand, the judicial branch and the executive together,” Royce Lamberth, then the chief FISA court judge, tells Gellman, “and gotten any statutory change we wanted…. But they wanted to demonstrate that the president’s power was supreme, and the judiciary was just a tagalong when necessary, but not appreciated.” They didn’t want to change the law, that is; they wanted to circumvent it, and so demonstrate that, in the face of the president’s wartime powers, the law didn’t matter.

And I believe that Dick Cheney’s agenda all along was to take the oval office himself at the end of Bush’s second term. But then it all went horribly wrong for him.

Read the article – very interesting, even though some assessments may be questionable. (For instance, he calls Dubya “intelligent” – what does that make every other president? Genius?)

It is an astute point, all the more so for seeming obvious: the unique policies put into effect by Bush and Cheney were not consequences of the September 11 attacks but calculated responses to them. There was nothing fated about Stellar Wind, or “black sites” and the “enhanced interrogation techniques” that were practiced in them, or Guantánamo and military commissions; these and the other distinctive post–September 11 policies that still cast their shadows over us were born of choices made by government officials and, in the event, by a vanishingly small number of them.

Which makes the secret way our government runs a recipe for disaster. Barton Gellman, quoted by Danner, says Cheney ushered in a new world where the executive proceeded “by rules invented on the fly.” Unfortunately, he’s right.

But the reader is left to puzzle out who exactly Bush is referring to when he writes that “some in the White House” wanted him to let [Deputy Attorney General James] Comey, [FBI Director Robert] Muller, and their colleagues, and perhaps [Attorney General John] Ashcroft himself, resign. Even writing his memoirs years after leaving office Bush is loathe to identify Cheney as the antagonist who almost scuttled his presidency—though had he done so, his account, which portrays an incurious president very much out of touch, might have been less embarrassing to him personally.

Perhaps he’s too clueless to be embarrassed. Or perhaps he thought it better not to be shot in the face.

It goes on still. This is the way of the post–September 11 world, where whistleblowers and news organizations reveal what would have once been considered illegal and then, years later, find themselves “revealing” it yet again, and then again. So it has been with torture and extrajudicial killing and warrantless wiretapping. We might call these frozen scandals, which begin in revelation and white-hot controversy and end with our learning to live with secret wrongdoing that is in fact no secret at all. This is our new normal—and a vital attribute of the world Dick Cheney bequeathed us.

This Is Your Government Addicted to Secrecy

[Attorney General Eric] Holder, in his April declaration, restated his own new state secrets policy, that “[t]he Department will not defend an invocation of the privilege in order to: (i) conceal violations of the law, inefficiency, or administrative error; (ii) prevent embarrassment to a person, organization, or agency of the United States Government”. Then he did exactly what he had said he wouldn’t do.

[...]

For nine years, the U.S. government refused to let a Stanford PhD student named Rahinah Ibrahim back in the country after putting her on the no-fly list for no apparent reason. For eight years, U.S. government lawyers fought Ibrahim’s request that she be told why. Last April, despite his promise in 2009 to do so only in only the most extreme cases, [Holder] tried to block Ibrahim’s case by asserting the state secrets privilege, declaring under penalty of perjury that the information she wanted “could reasonably be expected to cause significant harm to national security.”

Last week, a federal judge publicly revealed the government’s explanation for Ibrahim’s long ordeal: an FBI agent had “checked the wrong box,” resulting in her falling under suspicion as a terrorist.

  Intercept

Shutting Down America

Glenn Greenwald and Edward Snowden comment on the Lavabit closure.

Secret courts issuing secret rulings invariably in favor of the US government that those most affected are barred by law from discussing? Is there anyone incapable at this point of seeing what the United States has become?

[...]

As security expert Bruce Schneier wrote in a great Bloomberg column last week, this is one of the key aspects of the NSA disclosures: the vast public-private surveillance partnership. That's what makes Lavabit's stance so heroic: as our reporting has demonstrated, most US-based tech and telecom companies (though not all) meekly submit to the US government's dictates and cooperative extensively and enthusiastically with the NSA to ensure access to your communications.

Snowden, who told me today that he found Lavabit's stand "inspiring", added:

[...]

"America cannot succeed as a country where individuals like Mr. Levison have to relocate their businesses abroad to be successful. Employees and leaders at Google, Facebook, Microsoft, Yahoo, Apple, and the rest of our internet titans must ask themselves why they aren't fighting for our interests the same way small businesses are. The defense they have offered to this point is that they were compelled by laws they do not agree with, but one day of downtime for the coalition of their services could achieve what a hundred Lavabits could not.

"When Congress returns to session in September, let us take note of whether the internet industry's statements and lobbyists - which were invisible in the lead-up to the Conyers-Amash vote - emerge on the side of the Free Internet or the NSA and its Intelligence Committees in Congress."

[...]

A report issued this week by the Technology and Innovation Foundation [...] notes that other nations' officials have been issuing the same kind of warnings to their citizens about US-based companies as the one issued by Lavabit yesterday:

And after the recent PRISM leaks, German Interior Minister Hans-Peter Friedrich declared publicly, 'whoever fears their communication is being intercepted in any way should use services that don't go through American servers.' Similarly, Jörg-Uwe Hahn, a German Justice Minister, called for a boycott of US companies."

[...]

Obviously, the Obama administration, telecom giants, and the internet industry are not going to be moved by appeals to transparency, privacy and basic accountability. But perhaps they'll consider the damage being done to the industry's global reputation and business interests by constructing a ubiquitous spying system with the NSA and doing it all in secret.

  Glenn Greenwald

Yeah, I don’t know. I don’t think they’re that rational.

Under the Heel of Big Brother 's Boot

.

The highly encrypted email service reportedly used by NSA leaker Edward Snowden has gone offline - and its administrator claims the company is legally barred from explaining why.

  RT

I think we know why.

Based in Texas, Lavabit attracted attention last month when NSA leaker Edward Snowden used an email account with the service to invite human rights workers and lawyers to a press conference in the Moscow airport where he was then confined. A PGP crypto key apparently registered by Snowden with a Lavabit address suggests he’s favored the service since January 2010 — well before he became the most important whistleblower in a generation.

[...]

Reading between the lines, it’s reasonable to assume Levison has been fighting either a National Security Letter seeking customer information — which comes by default with a gag order — or a full-blown search or eavesdropping warrant.

Court records show that, in June, Lavabit complied with a routine search warrant targeting a child pornography suspect in a federal case in Maryland. That suggests that Levison isn’t a privacy absolutist. Whatever compelled him to shut down now must have been exceptional.

  Wired

I think we can safely surmise that the customer whose communications the NSA was seeking was in fact Edward Snowden. (Not that there wouldn't be others.)

In the weeks since the Guardian and Washington Post first began publishing stories with Snowden’s documents, the picture of the National Security Agency’s domestic-surveillance practices that’s come together is different from the one most everyone held before we’d ever heard Snowden’s name. And it has left the Administration’s explanations of what it does and doesn’t do looking pretty spotty, and at times just false.

  New Yorker

On Thursday, the homepage of Lavabit.com was changed to a letter from the company’s owner announcing that the site’s operations have ceased following a six-week long ordeal that has prompted the company to take legal action in the Fourth Circuit Court of Appeals.

Now in the midst of an escalating fight from the federal government aimed at cracking down on encrypted communications, one of the last free and secure services has thrown in the towel under mysterious circumstances.

“I have been forced to make a difficult decision: to become complicit in crimes against the American people or walk away from nearly ten years of hard work by shutting down Lavabit. After significant soul searching, I have decided to suspend operations,” owner and operator Ladar Levison of Dallas, Texas wrote in the statement. “I wish that I could legally share with you the events that led to my decision. I cannot.”

“I feel you deserve to know what’s going on--the First Amendment is supposed to guarantee me the freedom to speak out in situations like this. Unfortunately, Congress has passed laws that say otherwise,” wrote Levison. “As things currently stand, I cannot share my experiences over the last six weeks, even though I have twice made the appropriate requests.”

I’m sure that will be hit with an FOIA request. But it’s going to take a brave leaker to get it out.

“Lavabit believes that a civil society depends on the open, free and private flow of ideas. The type of monitoring promoted by the PATRIOT Act restricts that flow of ideas because it intimidates those afraid of retaliation. To counteract this chilling effect, Lavabit developed its secure e-mail platform. We feel e-mail has evolved into a critical channel for the communication of ideas in a healthy democracy. It’s precisely because of e-mail’s importance that we strive so hard to protect private e-mails from eavesdropping.”

[...]

Now as Levison and crew prepare for a fight in appeals court, he suggests that very few are safe from having even secure emails stolen by the US government.

“This experience has taught me one very important lesson: without congressional action or a strong judicial precedent, I would _strongly_ recommend against anyone trusting their private data to a company with physical ties to the United States,” Snowden said in the statement.

(click to enlarge)

Silent Circle shuttered its encrypted e-mail service on Thursday, the second such closure in just a few hours in an apparent attempt to avoid government scrutiny that may threaten its customers' privacy.

Silent Circle, which makes software that encrypts phone calls and other communications, announced in a company blog post that it could "see the writing on the wall" and decided it best to shut down its Silent Mail feature. The company said it was inspired by the closure earlier Thursday of Lavabit, another encrypted e-mail service provider that alluded to a possible national security investigation.

[...]

"We'd considered phasing the service out, continuing service for existing customers, and a variety of other things up until today. It is always better to be safe than sorry, and with your safety we decided that the worst decision is always no decision."

  CNET

The news about Lavabit came on the same day as a story by Charlie Savage, in the Times, in which he followed up on an awkwardly phrased passage in a document supposedly about all the very strict constraints on the N.S.A. when it comes to reading the contents of Americans’ e-mails—a reference to “cases where NSA seeks to acquire communications about the target that are not to or from the target.” What that meant, he learned from further reporting, was that the agency thought it was allowed read Americans’ e-mails pretty freely, by “temporarily copying and then sifting through the contents of what is apparently most e-mails and other text-based communications that cross the border.” The N.S.A. comes up with a search term that is “about” a foreign target, and then reads whatever e-mails sent into and out of the country that it finds containing it. How is this not “targeting” Americans, when their communications are pulled out of the stream and studied? The answer is a language game: the person to whom those e-mails belong is not, by the N.S.A.’s definition, its target, nor—and this is somewhat new—does that person even have to be in touch with any foreign target. All you really have to be is interested in the same things as a target—or even just to use some words the N.S.A. has decided are “about” the target.

The extreme example that an unnamed official gave Savage is a search for a phone number the N.S.A. believes terrorists are using to call each other. What about a name? Could the N.S.A. read e-mails from members of the public if they simply discuss the case of someone the government has said is a threat? It sounds like it. This is dangerous; we already have Senators constrained from talking about what they know. We can’t all be afraid to ask questions; for a democracy, the most threatening thing would be the absence of such conversations.

  New Yorker

..but hey, do what you want...you will anyway.