F.B.I. Agents Get Leeway to Push Privacy Bounds

By Charlie Savage
The New York Times
June 12, 2011
[emphasis added]

The Federal Bureau of Investigation is giving significant new powers to its roughly 14,000 agents, allowing them more leeway to search databases, go through household trash or use surveillance teams to scrutinize the lives of people who have attracted their attention.

The F.B.I. soon plans to issue a new edition of its manual, called the Domestic Investigations and Operations Guide, according to an official who has worked on the draft document and several others who have been briefed on its contents. The new rules add to several measures taken over the past decade to give agents more latitude as they search for signs of criminal or terrorist activity.

The F.B.I. recently briefed several privacy advocates about the coming changes. Among them, Michael German, a former F.B.I. agent who is now a lawyer for the American Civil Liberties Union, argued that it was unwise to further ease restrictions on agents’ power to use potentially intrusive techniques, especially if they lacked a firm reason to suspect someone of wrongdoing.

“Claiming additional authorities to investigate people only further raises the potential for abuse,” Mr. German said, pointing to complaints about the bureau’s surveillance of domestic political advocacy groups and mosques and to an inspector general’s findings in 2007 that the F.B.I. had frequently misused “national security letters,” which allow agents to obtain information like phone records without a court order.

Valerie E. Caproni, the F.B.I. general counsel, said the bureau had fixed the problems with the national security letters and had taken steps to make sure they would not recur. She also said the bureau, which does not need permission to alter its manual so long as the rules fit within broad guidelines issued by the attorney general, had carefully weighed the risks and the benefits of each change.

“Every one of these has been carefully looked at and considered against the backdrop of why do the employees need to be able to do it, what are the possible risks and what are the controls,” she said, portraying the modifications to the rules as “more like fine-tuning than major changes.”

Some of the most notable changes apply to the lowest category of investigations, called an “assessment.” The category, created in December 2008, allows agents to look into people and organizations “proactively” and without firm evidence for suspecting criminal or terrorist activity.

Under current rules, agents must open such an inquiry before they can search for information about a person in a commercial or law enforcement database. 

Under the new rules, agents will be allowed to search such databases without making a record about their decision.

Mr. German said the change would make it harder to detect and deter inappropriate use of databases for personal purposes. But Ms. Caproni said it was too cumbersome to require agents to open formal inquiries before running quick checks. She also said agents could not put information uncovered from such searches into F.B.I. files unless they later opened an assessment.

The new rules will also relax a restriction on administering lie-detector tests and searching people’s trash. 

Under current rules, agents cannot use such techniques until they open a “preliminary investigation,” which — unlike an assessment — requires a factual basis for suspecting someone of wrongdoing. But soon agents will be allowed to use those techniques for one kind of assessment, too: when they are evaluating a target as a potential informant.

Agents have asked for that power in part because they want the ability to use information found in a subject’s trash to put pressure on that person to assist the government in the investigation of others. But Ms. Caproni said information gathered that way could also be useful for other reasons, like determining whether the subject might pose a threat to agents.

The new manual will also remove a limitation on the use of surveillance squads, which are trained to surreptitiously follow targets. Under current rules, the squads can be used only once during an assessment, but the new rules will allow agents to use them repeatedly. Ms. Caproni said restrictions on the duration of physical surveillance would still apply, and argued that because of limited resources, supervisors would use the squads only rarely during such a low-level investigation.

The revisions also clarify what constitutes “undisclosed participation” in an organization by an F.B.I. agent or informant, which is subject to special rules — most of which have not been made public. The new manual says an agent or an informant may surreptitiously attend up to five meetings of a group before those rules would apply — unless the goal is to join the group, in which case the rules apply immediately.

At least one change would tighten, rather than relax, the rules. Currently, a special agent in charge of a field office can delegate the authority to approve sending an informant to a religious service. The new manual will require such officials to handle those decisions personally.

In addition, the manual clarifies a description of what qualifies as a “sensitive investigative matter” — investigations, at any level, that require greater oversight from supervisors because they involve public officials, members of the news media or academic scholars.

The new rules make clear, for example, that if the person with such a role is a victim or a witness rather than a target of an investigation, extra supervision is not necessary. Also excluded from extra supervision will be investigations of low- and midlevel officials for activities unrelated to their position — like drug cases as opposed to corruption, for example.

The manual clarifies the definition of who qualifies for extra protection as a legitimate member of the news media in the Internet era: prominent bloggers would count, but not people who have low-profile blogs. And it will limit academic protections only to scholars who work for institutions based in the United States.

Since the release of the 2008 manual, the assessment category has drawn scrutiny because it sets a low bar to examine a person or a group. The F.B.I. has opened thousands of such low-level investigations each month, and a vast majority has not generated information that justified opening more intensive investigations.

Ms. Caproni said the new manual would adjust the definition of assessments to make clear that they must be based on leads. But she rejected arguments that the F.B.I. should focus only on investigations that begin with a firm reason for suspecting wrongdoing.

Source:
http://www.nytimes.com/2011/06/13/us/13fbi.html?_r=2&hp=&pagewanted=print
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U.S. Blocks Oversight of Its Mercenary Army in Iraq

Exclusive Report
By Spencer Ackerman
Wired
July 22, 2011

By January 2012, the State Department will do something it’s never done before: command a mercenary army the size of a heavy combat brigade. That’s the plan to provide security for its diplomats in Iraq once the U.S. military withdraws. And no one outside State knows anything more, as the department has gone to war with its independent government watchdog to keep its plan a secret.

Stuart Bowen, the Special Inspector General for Iraq Reconstruction (SIGIR), is essentially in the dark about one of the most complex and dangerous endeavors the State Department has ever undertaken, one with huge implications for the future of the United States in Iraq. “Our audit of the program is making no progress,” Bowen tells Danger Room.

For months, Bowen’s team has tried to get basic information out of the State Department about how it will command its assembled army of about 5,500 private security contractors. How many State contracting officials will oversee how many hired guns? What are the rules of engagement for the guards? What’s the system for reporting a security danger, and for directing the guards’ response?

And for months, the State Department’s management chief, former Ambassador Patrick Kennedy, has given Bowen a clear response: That’s not your jurisdiction. You just deal with reconstruction, not security. Never mind that Bowen has audited over $1.2 billion worth of security contracts over seven years.

“Apparently, Ambassador Kennedy doesn’t want us doing the oversight that we believe is necessary and properly within our jurisdiction,” Bowen says. “That hard truth is holding up work on important programs and contracts at a critical moment in the Iraq transition.”

This isn’t an idle concern or a typical bureaucratic tussle. The State Department has hired private security for its diplomats in war zones for the better part of a decade. Poor control of them caused one of the biggest debacles of the Iraq war: the September 2007 shooting incident in Nisour Square, where Blackwater guards killed 17 Iraqi civilians. Now roughly double those guards from the forces on duty now, and you’ll understand the scope of what State is planning once the U.S. military withdraws from Iraq at the end of this year.


“They have no experience running a private army,” says Ramzy Mardini, an analyst at the Institute for the Study of War who just returned from a weeks-long trip to Iraq. “I don’t think the State Department even has a good sense of what it’s taking on. The U.S. military is concerned about it as well.”

So far, the Department has awarded three security contracts for Iraq worth nearly $2.9 billion over five years. Bowen can’t even say for sure how much the department actually intends to spend on mercs in total. State won’t let it see those totals.

About as much information as the department has disclosed about its incipient private army comes from a little-noticed Senate hearing in February. There, the top U.S. military and civilian officials in Iraq said that they’d station the hired guard force at Basra, Irbil, Mosul and Kirkuk, with the majority — over 3,000 — protecting the mega-embassy in Baghdad. They’ll ferry diplomats around in armored convoys and a State-run helicopter fleet, the first in the department’s history.

But there are signs of even deeper confusion as State prepares to take the lead in Iraq. An internal State Department audit from June faulted top officials for “a lack of senior level participation” (.pdf) in an “unprecedented” transition to civilian control. The result is that “several key decisions remain unresolved, some plans cannot be finalized, and progress in a number of areas is slipping,” the audit concluded. It raises the prospect that the U.S. military will leave Iraq the same way it entered it — without any planning worthy of the name.

Bowen has minimal visibility into State’s planning process. His teams of auditors are in Iraq, reviewing reconstruction contracts for waste, fraud and abuse, as they have since the early days of the war. They just can’t see anything about the guard force. As far as Bowen is concerned, even though there’s been a nearly 90 percent drop in violence since the surge, State’s hired army still acts like Iraq is a killing field, with death squads and insurgents around every corner.

“Have the standards for convoy travel changed at all from the worst moments of Iraq civil war? The answer’s no,” Bowen says.

Diplomats are allowed an hour for meetings outside secured U.S. fortresses. Then it’s time to hit the road, in armored cars full of men armed to the teeth and wearing black sunglasses.

The State Department says it’s learned its lessons from Nisour Square and now places stricter rules on contractors, like putting cameras in contractor vehicles and revising “mission firearms policies,” as Kennedy told a congressional panel last month. (.pdf) It’s an issue Kennedy’s well-versed in handling: He ran the department’s internal investigation into Nisour Square in 2007.

Now, according to Bowen, he’s shielding State’s plans from scrutiny.

State wouldn’t comment for this story, saying it would be “inappropriate” to discuss an internal matter concerning Bowen. A department official who wouldn’t speak on the record merely said that it provides him with “extensive materials in response to their audit requests for documents and information falling within its statutory responsibilities.”

But Congress is showing signs of restiveness over State’s stonewalling. A bill that the House Foreign Affairs Committee crafted this week includes a provision specifically instructing State to let Bowen’s office to do its job: “SIGIR should audit military, security, and economic assistance to Iraq during the term of SIGIR’s existence,” the language reads, inserted at the behest of the panel’s chairwoman, Rep. Ileana Ros-Lehtinen.

But it’ll take months for that bill to pass. Until then, Bowen is shut out of State’s ad hoc foray into generalship.

“From my conversations with State Department people,” Mardini says, “they really don’t have a sense of how difficult this is going to be.” And it doesn’t look like they want to know.

Source:
http://www.wired.com/dangerroom/2011/07/iraq-merc-army/
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The Latest Attempt By The Obama Administration To Punish Whistleblowers

The Thomas-Drake Affair part II

Earlier this year, we noted Daniel Ellsberg's comments about how very few people realized that President Obama -- a man who ran on a platform of transparency and who has repeatedly said he supports whistleblowing efforts -- has been the most aggressive President ever in trying to punish whistleblowers.

He pointed out that President Obama has brought more indictments for leaking info than all other presidents combined. 

And it's resulted in absolutely ridiculous prosecutions like the Thomas Drake affair, which finally collapsed after it became clear that the feds were merely being vindictive against Drake for his whistleblowing activities, rather than finding any actual case of espionage.

Now we have the sequel to the Drake situation, with much higher stakes in some ways. Conor Friedersdorf has a story at The Atlantic, about the administration's efforts to put reporter James Risen in jail. The full story is a worth a read, but it's pretty ridiculous. Risen is famous for exposing the Bush administrations warrantless wiretapping regime, as well as a few other clearly illegal programs. He so infuriated the Bush administration that Dick Cheney wanted to put him in jail... but realized there was no legitimate way to do so.

Along comes President Barack Obama. Part of Obama's campaign was actually built off of the information that Risen exposed:

You'd think that President Obama would take a different view. After all, he might not be in the White House today if the Bush Administration would've succeeded in keeping all its secrets: the torture, the detainee deaths, the abuses at Abu Ghraib, the spying on Americans, the faulty pre-war intelligence in Iraq, and all the rest. One would expect Obama of all people to see the value in Risen's reporting - the real ways in which he has helped to preserve civil liberties, American freedom, and accountability in government - and to weigh that against the national security implications of reporting in 2006 on a bungled CIA effort that happened way back in the year 2000.

You'd think. Instead, we get the opposite.

The Obama administration has come down even harder on Risen than the Bush administration did, and is now threatening him with jail for not exposing his sources for some of his stories. This showdown may come soon, as a judge has indicated that she may require Risen to give up his sources.

As Glenn Greenwald has noted, this whole thing seems to be a part of the "climate of fear" that was certainly present among the previous administration, but which has ratcheted up dramatically with the current administration. The key "fear" element is to make it known to both insiders who leak and reporters who publish those stories, that they could face jail time, even as the administration claims that it's encouraging whistleblowing.

Ellsberg speculated that President Obama's reason for being so much more aggressive on these issues was one of embarrassment . That is, the President recognizes that the federal government is doing all sorts of questionable stuff -- the type of stuff he actively campaigned against -- and is embarrassed by it.

But since he (for whatever reason) is unable to put a stop to it, he's trying to do the next best thing: which is threaten and or punish anyone who might reveal what's being done.

I'm not sure I buy that theory, but either way the situation is clearly troubling, and completely counter to the image that Obama has tried to portray of openness and transparency, and a willingness to respond directly to critics rather than punish them.

If you're concerned about freedom of speech and freedom of the press, this story should concern you. If you believe in the importance of whistleblowers to keep governments accountable when they do things like break the clear letter and intent of the law, this story should concern you.

Tragically, however, it's not getting very much attention at all.

Read the Thomas Drake Affair Part 1
http://www.techdirt.com/articles/20110523/11515214400/travesty-thomas-drake-being-charged-with-espionage-making-mainstream-news.shtml

Source:
http://www.techdirt.com/articles/20110702/00451614941/latest-attempt-obama-administration-to-punish-whistleblowers.shtml
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Are Cameras the New Guns?
The move to stop recording of police misconduct.

by Wendy McElroy
The Freeman
May 31, 2011

In response to a flood of Facebook and YouTube videos that depict police abuse, a new trend in law enforcement is gaining popularity. In at least three states (Illinois, Massachusetts, and Maryland), it is now illegal to record an on-duty police officer even if the encounter involves you and may be necessary to your defense, and even if the recording is on a public street where no expectation of privacy exists.

The legal justification for arresting the “shooter” rests on existing wiretapping or eavesdropping laws, with statutes against obstructing law enforcement sometimes cited. Illinois, Massachusetts, and Maryland are among the 12 states in which all parties must consent for a recording to be legal unless, as with TV news crews, it is obvious to all that recording is underway. Since the police do not consent, the camera-wielder can be arrested. Most all-party-consent states also include an exception for recording in public places where “no expectation of privacy exists” (Illinois does not) but in practice this exception is not being recognized.

Massachusetts attorney June Jensen represented Simon Glik who was arrested for such a recording. She explained, “[T]he statute has been misconstrued by Boston police. You could go to the Boston Common and snap pictures and record if you want.” Legal scholar and professor Jonathan Turley agrees, “The police are basing this claim on a ridiculous reading of the two-party consent surveillance law — requiring all parties to consent to being taped. I have written in the area of surveillance law and can say that this is utter nonsense.”

The courts, however, disagree. A few weeks ago, an Illinois judge rejected a motion to dismiss an eavesdropping charge against Christopher Drew, who recorded his own arrest for selling one-dollar artwork on the streets of Chicago. Although the misdemeanor charges of not having a peddler’s license and peddling in a prohibited area were dropped, Drew is being prosecuted for illegal recording, a Class I felony punishable by 4 to 15 years in prison.

In 2001, when Michael Hyde was arrested for criminally violating the state’s electronic surveillance law — aka recording a police encounter — the Massachusetts Supreme Judicial Court upheld his conviction 4-2. In dissent, Chief Justice Margaret Marshall stated, “Citizens have a particularly important role to play when the official conduct at issue is that of the police. Their role cannot be performed if citizens must fear criminal reprisals….” (Note: In some states it is the audio alone that makes the recording illegal.)

The selection of “shooters” targeted for prosecution do, indeed, suggest a pattern of either reprisal or an attempt to intimidate.

Glik captured a police action on his cellphone to document what he considered to be excessive force. He was not only arrested, his phone was also seized.

On his website Drew wrote, “Myself and three other artists who documented my actions tried for two months to get the police to arrest me for selling art downtown so we could test the Chicago peddlers license law. The police hesitated for two months because they knew it would mean a federal court case. With this felony charge they are trying to avoid this test and ruin me financially and stain my credibility.”

Hyde used his recording to file a harassment complaint against the police. After doing so, he was criminally charged.

In short, recordings that are flattering to the police — an officer kissing a baby or rescuing a dog — will almost certainly not result in prosecution even if they are done without all-party consent. The only people who seem prone to prosecution are those who embarrass or confront the police, or who somehow challenge the law. If true, then the prosecutions are a form of social control to discourage criticism of the police or simple dissent.

A recent arrest in Maryland is both typical and disturbing.

On March 5, 24-year-old Anthony John Graber III’s motorcycle was pulled over for speeding. He is currently facing criminal charges for a video he recorded on his helmet-mounted camera during the traffic stop.

The case is disturbing because:

1) Graber was not arrested immediately. Ten days after the encounter, he posted some of he material to YouTube, and it embarrassed Trooper J. D. Uhler. The trooper, who was in plainclothes and an unmarked car, jumped out waving a gun and screaming. Only later did Uhler identify himself as a police officer. When the YouTube video was discovered the police got a warrant against Graber, searched his parents’ house (where he presumably lives), seized equipment, and charged him with a violation of wiretapping law.

2) Baltimore criminal defense attorney Steven D. Silverman said he had never heard of the Maryland wiretap law being used in this manner. In other words, Maryland has joined the expanding trend of criminalizing the act of recording police abuse. Silverman surmises, “It’s more [about] ‘contempt of cop’ than the violation of the wiretapping law.”

3) Police spokesman Gregory M. Shipley is defending the pursuit of charges against Graber, denying that it is “some capricious retribution” and citing as justification the particularly egregious nature of Graber’s traffic offenses. Oddly, however, the offenses were not so egregious as to cause his arrest before the video appeared.

Almost without exception, police officials have staunchly supported the arresting officers. This argues strongly against the idea that some rogue officers are overreacting or that a few cops have something to hide. “Arrest those who record the police” appears to be official policy, and it’s backed by the courts.

Carlos Miller at the Photography Is Not A Crime website offers an explanation: “For the second time in less than a month, a police officer was convicted from evidence obtained from a videotape. The first officer to be convicted was New York City Police Officer Patrick Pogan, who would never have stood trial had it not been for a video posted on Youtube showing him body slamming a bicyclist before charging him with assault on an officer. The second officer to be convicted was Ottawa Hills (Ohio) Police Officer Thomas White, who shot a motorcyclist in the back after a traffic stop, permanently paralyzing the 24-year-old man.”

When the police act as though cameras were the equivalent of guns pointed at them, there is a sense in which they are correct. Cameras have become the most effective weapon that ordinary people have to protect against and to expose police abuse. And the police want it to stop.

Happily, even as the practice of arresting “shooters” expands, there are signs of effective backlash. At least one Pennsylvania jurisdiction has reaffirmed the right to video in public places. As part of a settlement with ACLU attorneys who represented an arrested “shooter,” the police in Spring City and East Vincent Township adopted a written policy allowing the recording of on-duty policemen.

As journalist Radley Balko declares, “State legislatures should consider passing laws explicitly making it legal to record on-duty law enforcement officials.”

(“When policemen break the law, then there is no more law; just a fight for survival.”  - ThePoet)

Source:
http://www.thefreemanonline.org/headline/are-cameras-the-new-guns/
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Time to Close the Security Theater

by Art Carden
Forbes
Jun. 30, 2011

Image via Wikipedia

You’ve probably heard about what columnist Gene Healy calls “the TSA’s latest ritual humiliation of an innocent traveler.” Just for the record, I don’t rest any easier knowing that the TSA is keeping me safe from wheelchair-bound 95-year old leukemia patients who might be hiding bombs in their adult diapers.  Naturally, people are calling for reform. Keith Olbermann, for example, called for TSA administrator John Pistole to be fired.

Some of the fury over this continues to miss the point, though. The problem isn’t that the TSA is harassing the wrong people. The problem is that the TSA is harassing anyone.  The TSA is encroaching on fundamental liberties and providing no discernable benefit. I’ve written before that the TSA should be abolished. The latest outrage is just more evidence in the case against a government administration we would be better off without.

The Transportation Security Administration does not provide transportation security. It provides what security expert Bruce Schneier calls “security theater.”

The effect of the all the trimmings and trappings at airport security is to give travelers the impression that the government is going about Very Serious Business. The net effect, though, is perhaps a trivial increase in safety achieved at massive costs in terms of time, treasure, and lives: it is well known that driving is more dangerous than flying.

By making flying less convenient, we encourage people to drive more.  Substitution away from flying and toward driving costs lives, on net.

Naturally, the TSA responds to incidents like these by saying that the agents are highly trained and that they have followed proper procedure.

This indicates a signal failing for the agency: if “doing it by the book” involves touching people in ways that would be considered sexual assault in virtually any other context or telling a 90-year old breast cancer survivor to remove her bra lest it contain explosives (as happened to a friend’s grandmother), then the book needs to be shredded and rewritten.

Better yet, it needs to be replaced with a competitive market for air travel in which the airports, the airways, and the airliners are in private hands.

Some might object that private firms will have incentives to cut corners on safety. It is a legitimate concern, but competitive mechanisms tend to weed this out. It is important to remember too that just because competitive markets might not provide the best of all conceivable worlds doesn’t mean that government intervention can.

I’m coming to believe that one of the most dangerous phrases in the English language is “well, it could happen.” Yes, it could. But so could…well, anything. Just because something is possible doesn’t mean it is worth worrying about. Every day, we face much greater risks than terrorism without anxiety because the probability is so small. People have claimed that terrorism represents an “existential” threat to the United States.

National security expert John Mueller puts it this way:

“Until 2001, far fewer Americans were killed in any grouping of years by all forms of international terrorism than were killed by lightning, and almost none of those terrorist deaths occurred within the United States itself. Even with the September 11 attacks included in the count, the number of Americans killed by international terrorism since the late 1960s (which is when the State Department began counting) is about the same as the number of Americans killed over the same period by lightning, accident-causing deer, or severe allergic reaction to peanuts.”

This hardly suggests an existential threat, let alone a threat that justifies harassing leukemia patients and breast cancer survivors at airport security. Unfortunately, we’re going to have these problems for as long as we have a TSA. No amount of “reform” will fix it–unless, of course, that “reform” is abolition.

Source:
http://blogs.forbes.com/artcarden/2011/06/30/time-to-close-the-security-theater/
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