Court Decision Exempts Secret Memo From FOIA, Sets Stage For Future Secret Laws To Go Unchallenged
By Tim Cushing | Techdirt | January 6, 2014
The “most transparent administration” received another win for continued secrecy, thanks to an appeals court decision that allowed it to continue to withhold a DOJ memo that created an exploitable loophole in consumer data privacy protections.
The document at issue is a classified memo issued by the Office of Legal Counsel on Jan. 8, 2010. A report later that year by the Justice Department’s inspector general at the time, Glenn A. Fine, disclosed the memo’s existence and its broad conclusion that telephone companies may voluntarily provide records to the government “without legal process or a qualifying emergency,” notwithstanding the Electronic Communications Privacy Act.
The EFF has been engaged with the government over the release of this document since 2011, when a district court judge ruled the document was exempt from FOIA requests because it was part of executive branch “internal deliberations.” In other words, despite the fact that the OLC memos can be considered legally binding (and exempt those following the memos’ advice or instructions from legal repercussions), the memo is not considered “working law.” The EFF has argued that these memos are not “deliberative,” but are rather secret laws deployed in such a fashion as to avoid being exposed by FOIA requests.
The presiding judge explained his decision with this reasoning.
“Even if the O.L.C. opinion describes the legal parameters of what the F.B.I. is permitted to do, it does not state or determine the F.B.I.’s policy,” Judge Harry T. Edwards wrote in the decision on Friday. “The F.B.I. was free to decline to adopt the investigative tactics deemed legally permissible in the O.L.C. opinion.”
According to the FBI, it did decline to follow the memo’s parameters.
The bureau, which has abandoned exigent letters, said that it did not employ the legal theory outlined in the memo when using the letters, and that it had no plans to use it in the future.
But the DOJ’s arguments for keeping the memo secret calls the FBI’s assertion into question.
During the litigation, the Justice Department also told the court that parts of the memo contained classified information, “highly specific in nature and known to very few individuals,” about a secret intelligence-gathering technique that the F.B.I. is using against “hostile entities.”
Either the FBI is utilizing the memo’s legal theories or the memo covers so much ground that the FBI is using something entirely unrelated, making the first statement truthful as far as it extends to exigent letters only.
Judge Edwards’ rationale gives the government every reason to utilize the Office of Legal Counsel to provide it with the legal justification it needs to deploy questionable tactics and programs. (Previous OLC memos were used to justify warrantless wiretaps and “brutal questioning of detainees.”) The ruling makes it easier for any OLC memo to be exempted from FOIA requests, providing for even more government secrecy.
David Sobel, a lawyer for the EFF, called the ruling “troubling,” describing the office’s memos as a body of “secret law” that the public has a right to know about. He said he hoped the ruling would reinvigorate efforts among some lawmakers to enact a law opening such memos to greater scrutiny outside the executive branch.
“It’s kind of hard to imagine how a different case in the D.C. Circuit is likely to have a different outcome in light of this opinion,” he said.
Because the document remains a secret, its true significance remains a source of speculation. The New York Times says the memo is most likely the legal basis for the CIA’s voluntary agreement with AT&T, which allows the agency to search its massive database of international calls (and tip local numbers to the FBI for further investigation). And it’s not as if this secret memo is the only tool the government has for demanding data. The FBI may have abandoned “exigent letters” but it’s still using National Security Letters to obtain data without a court order. (No mention is made of the FBI’s exigent Post-It notes or over-the-shoulder database searches.)
The DOJ is understandably pleased with this decision as it plays to its obfuscatory tendencies. This is also a dubious win for this administration — and those that follow. Having an in-house agency on tap that can create new laws and interpretations of existing statutes without having to risk having its legally-binding memos scrutinized by the public will be a tool too powerful for many to ignore.
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FBI Admits It’s Not Really About Law Enforcement Any More; Ignores Lots Of Crimes To Focus On Creating Fake Terror Plots
By Mike Masnick | Techdirt | January 6, 2014
A couple years ago, it was revealed that the FBI noted in one of its “counterterrorism training manuals” that FBI agents could “bend or suspend the law and impinge upon the freedoms of others,” which seemed kind of odd for a government agency who claimed its “primary function” was “law enforcement.” You’d think that playing by the rules would be kind of important. However, as John Hudson at Foreign Policy has noted, at some point last summer, the FBI quietly changed its fact sheet, so that it no longer says that “law enforcement” is its primary function, replacing it with “national security.”
Of course, I thought we already had a “national security” agency — known as the “National Security Agency.” Of course, while this may seem like a minor change, as the article notes, it is the reality behind the scenes. The FBI massively beefed up resources focused on “counterterrorism” and… then let all sorts of other crimes slide. Including crimes much more likely to impact Americans, like financial/white collar fraud.
Between 2001 and 2009, the FBI doubled the amount of agents dedicated to counterterrorism, according to a 2010 Inspector’s General report. That period coincided with a steady decline in the overall number of criminal cases investigated nationally and a steep decline in the number of white-collar crime investigations.
“Violent crime, property crime and white-collar crime: All those things had reductions in the number of people available to investigate them,” former FBI agent Brad Garrett told Foreign Policy. “Are there cases they missed? Probably.”
The article correctly notes that this has had a big impact:
The reductions in white-collar crime investigations became obvious. Back in 2000, the FBI sent prosecutors 10,000 cases. That fell to a paltry 3,500 cases by 2005. “Had the FBI continued investigating financial crimes at the same rate as it had before the terror attacks, about 2,000 more white-collar criminals would be behind bars,” the report concluded. As a result, the agency fielded criticism for failing to crack down on financial crimes ahead of the Great Recession and losing sight of real-estate fraud ahead of the 2008 subprime mortgage crisis.
… So… what has the FBI been doing? Well, every time we hear anything about the FBI and counterterrorism, it seems to be a case where the FBI has been spending a ton of resources to concoct completely made up terrorism plots, duping some hapless, totally unconnected person into taking part in this “plot” then arresting him with big bogus headlines about how they “stopped” a terrorist plot that wouldn’t have even existed if the FBI hadn’t set it up in the first place. And this is not something that the FBI has just done a couple times. It’s happened over and over and over and over and over and over and over and over and over and over and over and over again. And those are just the stories that we wrote about that I can find in a quick search. I’m pretty sure there are a bunch more stories that we wrote about, let alone that have happened.
All of these efforts to stop their own damn “plots” screams of an agency that feels it needs to “do something” when there’s really nothing to be done. Thousands of agents were reassigned from stopping real criminals to “counterterrorism” and when they found there were basically no terrorists around, they just started making their own in order to feel like they were doing something… and to have headlines to appease people upstairs. The government seems to have gone collectively insane when it comes to anything related to “terrorism.

Terrorism: It Could Be Anyone Now
By Kevin Ryan | Dig Within | December 16, 2013
This weekend I ran across a random copy of The Wall Street Journal and decided to see what passes for mainstream news these days. Reading it reminded me of the striking amount of terrorism propaganda being foisted upon the U.S. public. The numerous terrorism-related stories in that weekend edition of The Journal painted a confused and contradictory picture that reflects a difficulty in keeping the American public focused on terrorist threats and increasingly suspicious of their fellow citizens.
The weekend edition included five major stories about terrorism, including a shooting at a Colorado high school, the release of video from a hospital massacre in Yemen, and a review of how the Sandy Hook victims’ families are coping. In the most prominent spot, at the top left of the front page, readers found an alert for a major expose covering the Boston bombers. The fifth story was about the arrest of a Wichita man for plotting to blow up aircraft with a homemade bomb at the airport.
The new, Wichita story provides a good example of the challenges facing the FBI and corporate media in ongoing efforts to stoke the public fear. The suspect, like others in the last few years, had no previous history of terrorist activity and the FBI did everything for him.
Terry Lee Loewen was an avionics specialist at a private company working at the Mid-Continent Airport in Wichita. Allegedly, he tried to drive his car, loaded with explosives that the FBI had helped him make, onto the tarmac to cause “maximum carnage and death.” This man, whom neighbors called quiet and “normal” was supposedly working for al-Qaeda in the Arabian Peninsula.
The emerging story of Loewen includes a significant number of contradictory reports and unbelievable aspects. The official account is that Loewen decided to become a Muslim about six months ago and he immediately began devoting all his time to preparations for becoming a “lone wolf” suicide bomber. FBI-produced documents allegedly provide this 58-year old white man’s reasoning for his radical change of life course—“My only explanation is that I believe in jihad for the sake of Allah + for the sake of my Muslim brothers + sisters.”
Although Loewen did not enter a plea and his public defender and current wife would not comment, his ex-wife and son were contacted for interviews and neither of them had any idea about his new commitment to jihad and martyrdom. The son had spoken to his father in the last month yet, according to The Journal, “didn’t detect anything amiss” and “didn’t know about any turn toward Islam by his father.”
Although Loewen is being portrayed as a serious, jihadist Muslim, he had no known connection to any Muslim organization in Wichita or elsewhere. Apparently he was only an online Muslim and the FBI caught him making comments about his desire to wage jihad against his own country on behalf of the members of his new faith.
His neighbors couldn’t believe it and never saw anything suspicious about him or his current wife. And although his own son had no idea about it, and his ex-wife would never have predicted it, in his last six months he must have devoted every spare moment to his new mission. One might think that a new convert would take time to learn about his new religion and interact with at least one or two Muslims in his community. After all, doesn’t becoming a Muslim require more than just making a few online comments?
Not for Loewen, according to the FBI. Instead, one day he was just a solitary, radical Muslim and he immediately began spending all his free time “studying subjects like jihad, martyrdom operations, and Sharia law.” He also “studied the airport layout and took photos of access points, researched flight schedules and acquired components to make car bombs.” He was obviously very busy and totally committed.
FOX News reported that Loewen was inspired by Usama bin Laden. Investigators from the Wichita Joint Terrorism Task Force further claimed that Loewen “frequently expressed admiration for Anwar Al-Awlaki.” Republican Senator Jerry Moran of Kansas said that Loewen’s action reminded us that we must “reaffirm our commitment” to the War on Terror.
There are certainly suspicious things about Loewen. For one thing, he had another name—Terry L. Lane. How many readers of The Wall Street Journal just happen to have other names? And Loewen was cited in 2009 for a “a concealed-carry violation at the airport.”
Nonetheless, according to his ex-wife of 10-years, Loewen/Lane was “peaceful, easy-going, quiet man” who “didn’t like confrontation; he was never one to start a fight.” She said he had left his job at Hawker Beechcraft Air Services for a time, to work at Learjet across town. She didn’t know when he returned to Beechcraft. “He was happy. He was a normal human being,” she said. And although The Journal reported that the son had no idea about Loewen’s conversion to Islam, The Wichita Eagle reported that the son told his mother that Loewen had recently become a Muslim.
Other news sources report that the son said his dad was “always really calm and a loving man” and that he “had no idea how his father came to be the main suspect in a foiled terror plot.”
Therefore the news about Loewen/Lane and this alleged new terrorist plot includes many confusing reports and makes little or no sense. A 58-year old man with no connection to any Muslim organization just decided on his own to give up his entire life to become a jihadist. He forsook all other commitments to make a martyr of himself for the benefit of “brothers and sisters” who he had never met. His family and neighbors apparently knew nothing about it.
If we can learn anything from the incident it is that the next terrorist could be anybody—you, your father, your neighbor—anyone at all. And there won’t necessarily be any signs at all other than what the FBI provides about internet activity.
This brings us to the big expose that The Journal published on the Boston bombers. Readers might wonder about the coincidence of the reporter from The Journal just happening to be a relatively close friend of the Tsarnaev family, whose two sons were accused of the marathon attack. Ostensibly, that relationship was initiated because both the reporter and the family spoke Russian and the reporter was doing research on Chechens and “Russia’s Islamist insurgency.” But the friendship was clearly much more than that. Who could have predicted that chance relationship would come in so handy for a terrorism reporter from a major U.S. news source?
Anyway, the story about the Tsarnaevs presents more contradictions. For instance, the mother of the accused bombers is portrayed quite differently than we have seen before. The woman who suddenly became a terrorist suspect herself a week after she began claiming that her sons were controlled by the FBI has most often been seen as a strict Muslim woman dressed in very traditional garb. In The Journal’s new story, however, she is “a wide-eyed rapid talker with a low-cut dress and high heels who waved her arms and teased her black hair like the pop singer Cyndi Lauper.” And she ran a business on the side giving facials.
In this new light, mother Tsarnaev could be an office girl from Jersey, or the girl next door.
But those who read the whole story realize that there is a bigger purpose behind this spread on the Tsarnaevs and it is not to describe their dress habits. It is, in fact, to reveal that the Boston bombers were conspiracy theorists. Specifically, Tamerlan Tsarnaev and his brother were “filled with thoughts of conspiracy” including that “the Sept.11 attacks were organized by shadowy financial elites.”
We have seen this tactic before with other terrorism stories but never this blatantly. We are being told that not only can anyone be a terrorist, but it is more likely that anyone who questions the official accounts of terrorism is more likely to be a terrorist. How convenient for the military-terrorism-industrial complex. If such an approach takes hold in the minds of fearful citizens, there would be no stopping the architects of the War on Terror and no shortage of suspects to keep the whole thing rolling along.
List Of Targets FBI Supposedly Asked Jeremy Hammond To Crack Revealed
By Mike Masnick | Techdirt | November 18, 2013
On Friday, we wrote about Jeremy Hammond’s 10-year prison sentence, mentioning that the judge had required part of Hammond’s statement be redacted from any reports as his discussion of the list of targets he was asked to hack by FBI informant Sabu (Hector Xavier Monsegur) was considered classified. Of course, it will come as little surprise that the unredacted/uncensored text of his original statement is alleged to have leaked soon after the sentencing. Someone posted it to Pastebin. While it’s entirely possible that this is fake, there are at least some indications that it’s accurate.
Sabu also supplied lists of targets that were vulnerable to “zero day exploits” used to break into systems, including a powerful remote root vulnerability effecting the popular Plesk software. At his request, these websites were broken into, their emails and databases were uploaded to Sabu’s FBI server, and the password information and the location of root backdoors were supplied. These intrusions took place in January/February of 2012 and affected over 2000 domains, including numerous foreign government websites in Brazil, Turkey, Syria, Puerto Rico, Colombia, Nigeria, Iran, Slovenia, Greece, Pakistan, and others. A few of the compromised websites that I recollect include the official website of the Governor of Puerto Rico, the Internal Affairs Division of the Military Police of Brazil, the Official Website of the Crown Prince of Kuwait, the Tax Department of Turkey, the Iranian Academic Center for Education and Cultural Research, the Polish Embassy in the UK, and the Ministry of Electricity of Iraq.
Sabu also infiltrated a group of hackers that had access to hundreds of Syrian systems including government institutions, banks, and ISPs. He logged several relevant IRC channels persistently asking for live access to mail systems and bank transfer details. The FBI took advantage of hackers who wanted to help support the Syrian people against the Assad regime, who instead unwittingly provided the U.S. government access to Syrian systems, undoubtedly supplying useful intelligence to the military and their buildup for war.
All of this happened under the control and supervision of the FBI and can be easily confirmed by chat logs the government provided to us pursuant to the government’s discovery obligations in the case against me. However, the full extent of the FBI’s abuses remains hidden. Because I pled guilty, I do not have access to many documents that might have been provided to me in advance of trial, such as Sabu’s communications with the FBI. In addition, the majority of the documents provided to me are under a “protective order” which insulates this material from public scrutiny. As government transparency is an issue at the heart of my case, I ask that this evidence be made public. I believe the documents will show that the government’s actions go way beyond catching hackers and stopping computer crimes.
Again, while Hammond is responsible for actually carrying out the activity of breaking into these sites, it still seems incredibly questionable that the targets may have been suggested by the FBI, which then basically got to take advantage of Hammond’s activities, and then when that wasn’t useful any more, to throw him in jail for a decade.
Senate committee approves funding for NSA, witch-hunt on leakers
RT | November 6, 2013
Congress has taken the first step towards expanding the abilities of the United States intelligence community by advancing a draft bill that will ensure the government’s spy budget stays intact into next year.
A Senate commitee approved the 2014 Intelligence Authorization Act during a closed door session on Tuesday, a bill that if signed into law will allow the US National Security Agency and other departments to keep receiving funding amid an international scandal that has caused calls for reform and even abolishment of the NSA both in the US and abroad in recent months.
Notwithstanding the backlash brought on by an array of secret NSA documents disclosed to the media by contractor-turned-leaked Edward Snowden since June, the Senate Intelligence Committee passed the draft bill by a 13-2 vote. Next, the full chamber will weigh in on the matter before it is reconciled with a sister act by way of the House of Representatives and sent to President Barack Obama to be signed into law.
If approved with all of its current provisions in place, the law will let the government continue to fund programs operated for purposes of counterterrorism and nuclear weapon proliferation prevention, authorizing initiatives within more than a dozen federal departments, including the NSA and others that deal in covert, intelligence-gathering operations.
In a press release issued Tuesday by the committee, however, its members also acknowledged that the bill expands certain intelligence community operations, including in particular the very programs enacted to prevent the unauthorized disclosure of classified information.
The bill, the committee wrote, “includes important provisions to enhance the conduct, accountability and oversight of the intelligence activities of the United States,” such as one intended “to protect against insider threats by adding necessary funds to deploy information technology detection systems across the intelligence community.”
The bill would also empower the Director of National Intelligence to “improve the government’s process to investigate . . . individuals with security clearances to access classified information,” while at same time “Instituting new statutory protections that protect the ability of legitimate whistleblowers to bring concerns directly to the attention of lawmakers, inspectors general and intelligence community leaders.”
Since the identity of the NSA leaker was revealed to be 30-year-old Edward Snowden, opponents of his actions have suggested that alternative, legal routes to questions the intelligence community’s tactics could have been taken, such as appealing to an inspector general. History, however, suggests that recent whistleblowers before him had a nearly impossible time doing as much, including Thomas Drake, a former senior NSA executive who was charged under the Espionage Act after he attempted to draw attention to waste, fraud and abuse within his agency years earlier. Speaking at an anti-NSA rally in Washington last month, Drake told a crowd of a couple thousand, “Any domestic surveillance legislation must include whistleblower protection for the credibility and enforcement of any reform effort, otherwise secrecy enforced by repression will turn into a faux reform passed into simply an honor system” for the NSA.
In a statement released on Tuesday, Committee Vice Chairman Saxby Chambliss (R-Georgia said, “This year’s intelligence authorization bill achieves both objectives by providing clear guidance and appropriate resources to the intelligence community, while enhancing the committee’s oversight of vital intelligence activities.”
If signed into law, the act will allow for funding to continue with regards to a number of intelligence-gathering operations conducted not just by the likes of the NSA, but also the Central Intelligence Agency, the Office of the Director of National Intelligence and the Departments of Defense, State, Treasury, Energy and Justice, among others.
Muslim Fights Placement on Watch List
By NICK DIVITO | Courthouse News | October 3, 2013
MANHATTAN – A Muslim man says he has been unable to visit his ailing mother for over two years because he refused to spy for the FBI and is now on the no-fly list.
Muhammad Tanvir says he is not the only one who the FBI unlawfully placed on the no-fly list “in retaliation for their refusal to work as informants against their communities and submit to questioning.”
The Queens man says his predicament has left him unable to visit his ailing mother in Pakistan for over two years, and that it has burdened his practice of Islam.
He notes that he is a lawful permanent resident employed at a 99-cent store in the Bronx who has “never been convicted of a crime nor does he pose any threat to aviation safety.”
The FBI declined to comment.
Though the no-fly list is supposed to represent a list of suspected terrorists, the American Civil Liberties Union calls it “a draconian tool to coerce Americans into spying on their communities.” In this case, Tanvir is represented by Shayana Kadidal with the Center for Constitutional Rights.
After refusing FBI agents’ request that he serve as an informant in his predominantly Muslim community and landing on the no-fly list, Tanvir says he reached out to the FBI to clear things up. Instead of helping, FBI agents offered to take him off the list in exchange for information.
Tanvir, who has lived in the United States since 2002, again refused.
“Mr. Tanvir has been prevented from flying despite the fact that he does not present any threat to aviation security,” the lawsuit states. “Instead, defendants sought to exploit the draconian burden posed by the No Fly List – including the inability to travel for work, or to visit family overseas – in order to coerce him into serving the FBI as a spy with American Muslim communities and places of worship.”
Named as defendants are FBI Director James Comey; Terrorist Screening Center Director Christopher Piehota; Acting Secretary of Homeland Security Rand Beers; and Transportation Security Administration Administrator John Pistole.
The FBI agencies are responsible maintaining the Terrorist Screening Database, which includes the no-fly list.
Tanvir wants the court to declare as unconstitutional the FBI’s alleged practice of placing people on the no-fly list for not cooperating, then using an offer to remove them as a bribe for information.
He also wants off the list, along with damages.
Related article
Ex-FBI counsel implicated in surveillance abuses nominated to crucial federal bench
RT | September 11, 2013
The former top lawyer at the FBI deeply implicated in surveillance abuses revealed before and by Edward Snowden’s leaks was confirmed as a federal judge in a top court for terrorism cases this week.
The US Senate voted 73-24 on Monday in approving Valerie Caproni, Federal Bureau of Investigation general counsel from 2003 to 2011, to the Southern District of New York, one of the country’s most important federal courts for terrorism cases.
Caproni has received bipartisan criticism for allowing and defending surveillance abuses both found to be overbroad during her tenure and those not disclosed when she was counsel but later revealed to be inappropriate or illegal. For example, the Snowden leaks showed Caproni mischaracterized the limits of the Patriot Act during her term.
A 2010 report by the Department of Justice revealed the FBI inappropriately used non-judicial subpoenas called “exigent letters” to gather phone numbers of over 5,550 Americans until 2006.
“The FBI broke the law on telephone records privacy and the general counsel’s office, headed by Valerie Caproni, sanctioned it and must face consequences,” said John Conyers in April 2010 as chairman of the House Judiciary Committee.
Conyers called for Caproni’s firing at the time over the use of the non-judicial subpoenas, according to the Guardian.
“It’s not in the Patriot Act. It never has been. And its use, perhaps coincidentally, began in the same month that Ms Valerie Caproni began her work as general counsel,” Conyers said in 2010.
Caproni told House lawmakers in 2008 if phone numbers — acquired from telephone companies by the FBI via the non-judicial subpoenas evidently sanctioned in the Patriot Act — were not related to a “currently open investigation, and there was no emergency at the time we received the records, the records are removed from our files and destroyed.”
Yet revelations found in documents supplied by Snowden outlined how the National Security Agency stores phone records on all Americans for up five years no matter if they are associated with an open investigation or not. In addition, it’s been found that the NSA has the capability to feed the FBI phone records if there is a “reasonable articulable suspicion” they are related to terrorism.
“Caproni knew that the Bush administration could use or was using the Section 215 provision in the Patriot Act to obtain Americans’ phone records on a broad scale, an issue that has recently been documented by the whistleblower material first printed in the Guardian,” Lisa Graves, a former deputy assistant attorney general who dealt with Caproni while working on national security issues for the ACLU, told the Guardian.
In 2007, DOJ’s Inspector General Glenn Fine found the FBI was serially abusing National Security Letters — a demand regarding national security independent of legal subpoenas– to obtain business records, including “unauthorized collection of telephone or internet email transactional records.” While the larger collection of phone records was still not exposed at the time, Caproni called the inappropriate collection a “colossal failure on our part.”
“Government officials that secretly approved of overbroad surveillance programs the public is only seeing now because of leaks, and whose testimony on the issue obscured rather than revealed these abuses, should be held to account for their actions in a public forum,” former FBI agent Mike German told the Guardian.
Caproni’s nomination to the federal bench had some bipartisan opposition, but not enough to block her appointment.
“She is a woman with impeccable credentials,” Sen. Kirsten Gillibrand (D-N.Y.) said on the Senate floor Monday. “This country needs more women like her.”



