Why Was The DOJ So Fearful Of Its Terrorist Watchlist Guidelines Being Made Public?

from the not-because-it-helps-terrorists dept

Having already discussed The Intercept's publication of the federal government's guidelines for declaring people terrorists to put on its various watchlists (including the infamous "no fly list"), it's raising some serious questions about why the DOJ had been fighting so hard to keep these guidelines from coming out. As we've discussed, in basically any case challenging the various government watchlists, the DOJ has freaked out and claimed "state secrets" to try to get the cases thrown out entirely.

Just a few months ago, Attorney General Eric Holder directly claimed that revealing these guidelines would be helping the terrorists. In that legal filing, Holder does the "state secrets" dance and then says:

I agree with the FBI that the Watchlisting Guidance, although unclassified, contains national security information that, if disclosed, for the reasons discussed in the FBI's classified declaration, could cause significant harm to national security.... If the Guidance were released, it would provide a clear roadmap to undermine the Government's screening efforts, a key counterterrorism measure, and thus, its disclosure reasonably could be expected to cause significant harm to national security.

Of course, now that the Watchlisting Guidance is out, we can take a look and see if that's actually true. And... Holder's statements, not surprisingly, appear to be completely bogus. The Guidelines are so vague and so broad that it gives no real indication of how to get around them or whether or not any particular person is likely to be placed on the list.

What the guidelines do show, however, is the level of extra scrutiny people on the list are subject to. And, as we noted, much of that certainly appears to violate the 4th Amendment (or, at the very least, open itself up to a pretty clear 4th Amendment challenge in the courts). So, once again, it seems like Holder's real reason to declare "state secrets" had little to do with "national security" and a hell of a lot to do with "DOJ security" in keeping its illegal and unconstitutional practices from further public and judicial scrutiny.

Filed Under: doj, eric holder, no fly list, terrorism watchlist, terrorist, tsdb, watchlist, watchlisting guidance

Privacy Rights Groups Ask Eric Holder To Ensure The FBI's Biometric Database Doesn't Become Just Another Domestic Surveillance Tool

from the give-us-your-address,-your-shoe-size,-your-years dept

The FBI is continuing to push ahead with its development of a biometric database (Next Generation Identification, or NGI), which will combine old school fingerprints and background records with facial recognition technology and other biometric data.

The technology continues to improve, but the FBI originally greenlit the database back when it still allowed the database a 20% error rate on its facial recognition. That was back in 2010, and of course, the only reason we know the FBI was perfectly fine with a 1-in-5 screw up rate was because EPIC liberated this information with an FOIA request.

This is also being rolled out without the FBI providing an updated Privacy Impact Assessment, a mandatory document demanded by the DOJ. It told Congress in 2012 that it was working on producing one. It's still telling this same story in 2014, as detailed in a letter to Eric Holder, signed by the ACLU, the EFF, EPIC and several other civil liberties/privacy rights groups.

The FBI recognizes this transformation and, at a July 2012 Senate hearing, committed to updating its privacy assessment of the agency's use of facial recognition. Jerome Pender, Deputy Assistant Director of the FBI's Criminal Justice Information Service Division, stated in his statement for the record that "[a]n updated PIA is planned and will address all evolutionary changes since the preparation of the 2008 IPS PIA." Furthermore, Assistant Director Pender said the updated privacy assessment would have "an emphasis on Facial Recognition." Nearly two years later an updated privacy assessment has not been completed.

This lack of the required privacy assessment also has had little impact on the speed of the FBI's NGI rollout. It has stated that it hopes to have the program fully operational in "fiscal year 2014." In the slight defense of the FBI, there's plenty of "privacy impact" to "assess."

The NGI database not only gathers criminal records from across multiple state and federal databases but also pulls in non-criminal data gathered from federal employees and employer background checks. This database, containing photographs, iris recognition data, palm prints and vast numbers of information collected from existing databases will be accessible by local law enforcement agencies. The possibilities for abuse are nearly endless, and the program itself is far from flawless when it comes to correctly identifying suspects.

According to an FBI study, the quality of images in the database is inconsistent and often of low resolution. Partly for this reason, the FBI doesn’t promise accuracy in its search results. Instead, it ensures only that “the candidate will be returned in the top 50 candidates” 85% of the time “when the true candidate exists in the gallery.” In fact, the overwhelming number of matches will be false. This false-positive risk could result in even greater racial profiling by disproportionately shifting the burden of identification onto certain ethnicities. The false-positive risk can also alter the traditional presumption of innocence in criminal cases by placing more of a burden on the suspect to show he is not who the system identifies him to be. And this is true even if a face recognition system such as NGI offers several results for a search instead of one, because each of the people identified could be brought in for questioning, even if he or she has no relationship to the crime.

To head off abuse, the letter asks the Attorney General to ensure that the database only collects data on "individuals who are part of the criminal justice system." It also asks Holder to prevent the NGI program from becoming just another way for the FBI (and its partners in law enforcement) to surveill innocent Americans.

Those signing this letter likely know that neither Holder nor the FBI are particularly sympathetic to the privacy interests of Americans, but the letter does create another opportunity to bring the issue to the attention of the public. Enough public pressure can push agencies in the right direction, especially if the public also gets its representatives involved. There's been surprisingly little oversight of the FBI's activities, especially with the NSA claiming most of the oversight spotlight in recent months, but the ACLU and others are always there to remind citizens that there's more than one agency playing fast and loose with American's privacy.

Filed Under: biometrics, doj, eric holder, privacy, surveillance

Court To Government On Attempt To Bury Drone Memo: You'd Have A Case If You'd Bother To Shut Your Mouth Once In Awhile

from the government-loosens-lips,-sinks-own-ships dept

We've discussed the contents of the DOJ's memo detailing its justifications for the extrajudicial killing of American citizens (being mainly that the Authorization for Use of Military Force, which was rushed into existence three days after the 9/11 attacks, says it can). Now, let's take a look at the ruling that finally pushed this long-withheld document into public view.

The court's decision recounts the long history of the embattled document, including the many attempts made by government agencies to bury the memo. But it appears that most of the reasons why the court decided to clear the (somewhat redacted) memo for release were provided by the government itself, which mooted many of its exemption claims with various statements made to the public.

In considering waiver of the legal analysis in the OLC-DOD Memorandum, we note initially the numerous statements of senior Government officials discussing the lawfulness of targeted killing of suspected terrorists, which the District Court characterized as "an extensive public relations campaign to convince the public that [the Administration's] conclusions [about the lawfulness of the killing of al-Awlaki] are correct."

What follows this paragraph is two pages of quotes by government officials, including Eric Holder, making public statements about how fully legal and justified the strike on al-Awlaki was. As the court notes, these assertions give a pretty good indication about the contents of the drone memo.

Even if these statements assuring the public of the lawfulness of targeted killings are not themselves sufficiently detailed to establish waiver of the secrecy of the legal analysis in the OLC-DOD Memorandum, they establish the context in which the most revealing document, disclosed after the District Court's decision, should be evaluated.

The court also explains how the close relationship between a DOJ white paper on drone strikes and the still-unseen OLC-DOD memo further weakens its claimed FOIA exemptions.

Even though the DOJ White Paper does not discuss 18 U.S.C. § 956(a), which the OLC-DOD Memorandum considers, the substantial overlap in the legal analyses in the two documents fully establishes that the Government may no longer validly claim that the legal analysis in the Memorandum is a secret...

After senior Government officials have assured the public that targeted killings are “lawful” and that OLC advice “establishes the legal boundaries within which we can operate,” and the Government makes public a detailed analysis of nearly all the legal reasoning contained in the OLC-DOD Memorandum, waiver of secrecy and privilege as to the legal analysis in the Memorandum has occurred.

From there, the court takes a swipe at the paranoiac assertions of the Office of Legal Counsel, assertions that seem to infer its clientele is largely comprised of idiots who fail to understand the public records process.

In resisting disclosure of the OLC-DOD Memorandum, the Government contends that making public the legal reasoning in the document will inhibit agencies throughout the Government from seeking OLC’s legal advice. The argument proves too much. If this contention were upheld, waiver of privileges protecting legal advice could never occur…

Agencies seeking OLC legal advice are surely sophisticated enough to know that in these circumstances attorney/client and deliberative process privileges can be waived and the advice publicly disclosed. We need not fear that OLC will lack for clients.

The government also claimed certain other information needed to be withheld, presumably because of the standard terrorism fears. But once again, the information it claims can't safely be made public was made public by government officials time and time again.

One is the identity of the country in which al-Awlaki was killed. However, numerous statements by senior Government officials identify that country as Yemen.

Again, this is followed by more than a full page of statements by government officials, including the President himself, talking up the great help the Yemeni government was during the hunt for al-Awlaki. The second concern, again undercut by government officials' statements, was the identity of the agency that worked with the Defense Department to eliminate the target.

The other fact within the legal reasoning portion of the OLC-DOD Memorandum that the Government contends merits secrecy is the identity of the agency, in addition to DOD, that had an operational role in the drone strike that killed al-Awlaki. Both facts were deleted from the April 21 public opinion, but have been restored in this opinion. Apparently not disputing that this fact has been common knowledge for some time, the Government asserts the importance of concealing any official recognition of the agency’s identity. The argument comes too late.

Undercutting the government's own arguments here are people like (then) CIA director Leon Panetta and Mike Rogers, head of the House Select Committee on Intelligence. James Clapper himself also confirmed this fact during a televised hearing.

As for the common "sources and methods" claims, the court doesn't think much of these either.

We recognize that in some circumstances the very fact that legal analysis was given concerning a planned operation would risk disclosure of the likelihood of that operation, but that is not the situation here where drone strikes and targeted killings have been publicly acknowledged at the highest levels of the Government...

With the redactions and public disclosures discussed above, it is no longer either “logical” or “plausible” to maintain that disclosure of the legal analysis in the OLC-DOD Memorandum risks disclosing any aspect of “military plans, intelligence activities, sources and methods, and foreign relations.”

The government desperately wanted to keep this memo a secret, but couldn't help repeatedly discussing aspects of it publicly. If these officials believed its extrajudicial killings were on firm legal ground, then they could only be helped by releasing the rationale behind them. And if other officials were so concerned about "sources and methods," why couldn't they restrain themselves from congratulating the Yemeni government and bragging about the CIA's role in drone strikes? Maybe this is the transparency so often touted by the administration, albeit one comprised mostly of inadvertent revelations and self-serving statements.

Filed Under: classification, doj, drones, eric holder, foia, freedom of information, secrecy

Four Years Is Long Enough: The DOJ Should End Its Grand Jury Investigation Into Wikileaks

from the file-charges-or-drop-it dept

For many years, it's been widely known, if not officially confirmed, that the DOJ had a grand jury investigation going on against Julian Assange and Wikileaks. As far back as early 2011, it was already quite clear that they didn't have enough evidence to actually make a case against him. They were so desperate that they tortured Chelsea Manning and offered her a plea deal if she would lie, and claim, falsely, that Assange "conspired" with her. Last fall, we noted that some in the DOJ were finally admitting that they had no case, but as of the end of April, the investigation was still happening.

A very long list of human rights and press freedom groups have now sent a letter to Attorney General Eric Holder, asking him to end the criminal investigation and admit that nothing criminal was done by Assange or Wikileaks in relation to publishing classified information leaked to it by Manning (and, potentially, others).

In a recent meeting with media representatives, you promised that “as long as I am attorney general, no reporter who is doing his job is going to go to jail.” Yet, the continued criminal investigation and other persecution of WikiLeaks and Mr. Assange puts them at serious risk. Well-respected legal scholars across the political spectrum have stated that a prosecution of WikiLeaks or Mr. Assange for publishing classified material or interacting with sources could criminalize the newsgathering process and put all editors and journalists at risk of prosecution.

There is growing international recognition that new media organisations are creating new channels for political debate and play a crucial role in maintaining transparency and democratic forms of government. The US Government made freedom of expression on the Internet one of the priorities of its foreign policy; this commitment must not be limited to the international arena. Thus, we are concerned that actions against Wikileaks undermine the commitment of the US Government to freedom of speech

It's doubtful that this will do any good, but it's important to keep highlighting issues like this, and how the administration has failed, badly, to live up to its promises. Unfortunately, rather than actually doing the right thing, all too often, the administration seems to decide to double down on its strategy.

Filed Under: bradley manning, chelsea manning, doj, eric holder, free press, free speech, grand jury, human rights, journalism, julian assange, wikileaks

Supreme Court Won't Hear Reporter's Appeal; James Risen May Now Face Jail For Not Revealing Sources

from the shameful dept

Unfortunately, it appears that the Supreme Court has decided not to hear reporter James Risen's appeal in the case in which he has been subpoenaed to testify, concerning CIA leaks. Risen had refused to testify, claiming that as a reporter he was entitled to keep his sources confidential. Last summer, the 4th Circuit appeals court said that Risen could be compelled to testify and to give up his sources. The court refused a request to rehear the case en banc (with a full slate of judges, rather than just a 3 judge panel). He then appealed to the Supreme Court, leading to today's rejection.

The DOJ, of course, had vigorously argued that the Supreme Court should reject Risen's appeal (ridiculously, it did this the same day the State Department launched a "free the press" campaign). Last week, we noted that some were interpreting Eric Holder's comments to mean that he would not seek jail time for Risen, should he continue to refuse to testify, but a closer reading of Holder's comments said no such thing.

It appears we may now find out the truth. If Risen continues to protect his sources, the ball will be in the DOJ's court: will it give up or will it pursue throwing a widely respected reporter in jail? One would hope that a basic sense of common decency would lead the DOJ to give up this ridiculous fight, but the DOJ doesn't have much of a history of common decency.

Filed Under: doj, eric holder, first amendment, james risen, protecting sources, shield law, supreme court

Words Mean Something: How Eric Holder Pretends He Won't Put Reporters In Jail Without Actually Saying That

from the watch-those-caveats dept

The DOJ has been claiming that it will be more respectful of journalists and their rights after two scandals from last year, involving spying on AP reporters and claiming reporter James Rosen was a "co-conspirator" in order to get access to his phone and email records. However, it's pretty clear that the DOJ still has no problem using questionable legal moves against reporters, such as in the ongoing situation with James Risen (note the one letter difference from the different reporter, Rosen, above). As we noted recently, the DOJ is still trying to send Risen to jail.

In a meeting with reporters (on a different topic), Holder was asked about Risen, and said: "no reporter who is doing his job is going to go to jail." This resulted in the NY Times and others suggesting that the DOJ wouldn't send Risen to jail if he continues to resist giving up his sources in one of the DOJ's many "leak" investigations.

However, it's important to note that Holder chose his words carefully, and might not actually be saying what some in the press seem to think he's saying. Note the caveat: it only applies to a "reporter who is doing his job." And, given the way the DOJ treats these things, it doesn't seem to think that reporting on leaks is a legitimate part of a reporter's job.

Kevin Gosztola, over at Firedoglake, further notes that the administration has been playing word games concerning Risen for a long time, including the repeated assertion that they're not prosecuting him. He points to this interview between Ken Auletta and the top lawyer for the Director of National Intelligence, Robert Litt:

KEN AULETTA: Do you agree that Jim Risen ought to be prosecuted for...?

ROBERT LITT: Jim Risen is not being prosecuted.

AULETTA: ...Not revealing his sources?

LITT: He’s not being prosecuted. He is being subpoenaed to give evidence as other people. The courts have determined that—to this day at least—that he doesn’t have a privilege against giving that information.

There was discussion in the last panel of a media shield law. That’s a law that President Obama has endorsed. I am not going to speculate as to how that would’ve applied to his particular case, but if there is a media shield law that’s passed, that’s another thing that the courts can do to enforce it.

There’s never been a reporter prosecuted. I don’t think there ever will be a reporter prosecuted because I think every president is aware of the adage about not getting into an argument with somebody who buys printer’s ink by the barrel. I think that as a practical matter, but it’s very different in my mind to go after the people responsible for leaking the information. [emphasis added]

So, he's not being prosecuted, and he won't go to jail if he only focused on "doing his job." But as long as he's involved in writing about leaks, he may not be "doing his job" and it seems quite likely that he may go to jail.

Filed Under: doj, eric holder, james risen, james rosen, reporters, sources

DOJ's Tone Deaf Criminal Charges Against Chinese Hackers Helps No One, Opens US Officials Up To Similar Charges

from the what-is-the-point? dept

We already wrote about the DOJ's "ironic" decision to file criminal charges against Chinese hackers. Soon after that the actual indictment was released and it's more or less what you'd expect. While the DOJ's extremely smug announcement about the indictment made it sound like it would amaze the public, the reality is that it just describes some fairly standard spearfishing attempts to seek out information from some big American companies. It's clearly illegal, but it really doesn't seem that impressive, especially given everything that's been revealed about the kind of attacks the NSA pulls off.

And, in fact, people are already pointing out that by firing the opening shot with criminal charges, the DOJ may be opening the floodgates against the NSA, FBI and others for similar charges in other countries. Obviously, China will almost certainly hit back with charges -- possibly even trying to arrest some folks in that country. But the ridiculousness of the situation may also lead other countries to levy charges against specific individuals within US intelligence -- thereby making life a lot more difficult for US intelligence officials in the near future.

So, the downside to this indictment seems fairly high. And for what upside? It's difficult to see any real upside. The US is clearly never going to get its hands on the specific individuals named in the indictment. China certainly isn't going to hand them over. And for all of the DOJ's bluster about finally having "proof" of criminal activity, no one is that interested. Everyone already knew the People's Liberation Army did this kind of hacking. Instead, the only real impact of this indictment seems to be the backlash, as people compare it to the lengths that US intelligence has gone to to spy on the rest of the world (including the Chinese).

In the end, the whole thing seems incredibly tone deaf on multiple levels. It calls more attention to questionable US activities, opens up US intelligence employees to criminal charges around the world, and does nothing to harm the Chinese. Doesn't anyone at the DOJ think these things through?

Filed Under: china, doj, eric holder, hacking, indictment, nsa, surveillance

Irony Alert: US Filing Criminal Charges Against China For Cyberspying

from the hey,-look-over-there! dept

Even as more and more examples of questionable surveillance by the US government are revealed, the US is apparently still trying its "hey, look over there!" strategy in response. This morning, Attorney General Eric Holder is announcing that the US has filed meaningless criminal charges against members of the Chinese military for economic espionage done via the internet.

Of course, there's no chance of any actual prosecution happening here. If anything this is all just a bit of diplomatic showmanship. In fact, I wouldn't be surprised to quickly see China respond in kind with "criminal charges" being announced against folks from the NSA for the various spying that they've done on China. US officials will, as they always do, insist that what the People's Liberation Army does is "different" because it's economic espionage, in which the Chinese army breaks into networks from certain industries and companies, and shares the details with Chinese companies. The US does not appear to do the same thing directly, though there are indications of indirect economic espionage (i.e., spying on companies to then inform general US policy that might help US companies). The Chinese have (quite reasonably) questioned how there's a legitimate distinction between the different kinds of espionage.

Either way, at a time when the US is under intense scrutiny for its questionable espionage efforts, including installing backdoors into US networking equipment (which is what they've accused the Chinese of doing repeatedly, despite no actual evidence), filing criminal charges against the Chinese for cyberspying... just looks really sad. It stinks of hypocrisy.

Filed Under: china, cyberspying, doj, economic espionage, eric holder, espionage, nsa, spying, surveillance

Eric Holder Admits That, If It Wanted, NSA Could Collect Internet Searches & Emails Just Like Phone Metadata

from the no-constitutional-issue-at-all dept

During a recent House Judiciary Committee hearing concerning oversight, Rep. Zoe Lofgren decided to quiz Attorney General Eric Holder about the federal government's surveillance efforts, starting off with a rather simple question. She notes that the bulk phone record collection program is considered to be legal by its supporters, based on Section 215 of the Patriot Act, which allows for the collection of "business records." So, she wonders, is there any legal distinction between phone records and, say, internet searches or emails? In other words, does the DOJ believe that it would be perfectly legal for the US government to scoop up all your search records and emails without a warrant? Holder clearly does not want to answer the question, and first tries to answer a different question, concerning the bulk phone records program, and how the administration is supposedly committed to ending it. But eventually he's forced to admit that there's no legal distinction: This is important. As you may recall, some of the attempts to deal with the phone record collection, including President Obama's, focus only on ending the specific phone record collection program, not the underlying law (or the interpretation of that law). This isn't to say that there are ongoing programs to do bulk warrantless collection of those other types of information, but it is worth recognizing that the government believes there would be no Constitutional issue if it decided to set up such a program.

All along, this has been the problem with Section 215. When it first was discussed, it was often called the "library" provision, as the example that people talked about was using Section 215 to collect the records of what books someone checked out of the library. However, as the phone collection program showed, it's been turned into something much, much broader. Fixing this interpretation is going to take a lot more than just ending one program. It requires changing what is allowed by Section 215.

Filed Under: 4th amendment, business records, emails, eric holder, internet searches, nsa, section 215, surveillance, warrants, zoe lofgren

DOJ Still Refuses To Investigate James Clapper For Lying To Congress

from the because-high-court dept

By now, it's well-known that James Clapper directly lied to Congress over a year ago when Senator Ron Wyden asked him whether or not the NSA collected any data at all on millions of Americans (a question he had sent Clapper a day earlier, so he wouldn't be surprised by it). Clapper insisted the NSA did not, something we now know is completely false. While Clapper first tried to dodge this lie by saying he thought Wyden was asking about a different program, and later claiming that this was the "least untruthful" answer, he eventually admitted that he lied and apologized to Senator Wyden. Back in December, however, a bunch of members of the House Judiciary Committee, led by Rep. Jim Sensenbrenner (the author of the PATRIOT Act) asked the DOJ to investigate Clapper for lying to Congress, noting that it is a criminal act to "knowingly and willingly" make any "materially false" statements to Congress.

So, how's that investigation going? Sensenbrenner is wondering that himself, because he received no response at all from the DOJ, leading him to feel the need to send yet another letter, asking whether the DOJ ever planned to get back to him.

On December 19 of last year, I wrote, along with six of my colleagues, to request that you investigate Director of National Intelligence James Clapper for his "erroneous" testimony before the Senate Select Committee on Intelligence last year. Nearly three-and-a-half months later, we have not received a response or an update on the status of your investigation.

On March 12, 2013, Senator Ron Wyden asked Director Clapper, "Does the N.S.A. collect any type of data at all on millions or hundreds of millions of Americans?" Director Clapper answered "No, Sir." Wyden pressed, "It does not?" Clapper replied, "There are cases where they could inadvertently perhaps collect, but not wittingly."

Now declassified documents reveal that Director Clapper's testimony was false, and further, that he knew it was false when it was offered. Congress is currently considering proposals regarding intelligence reform. In considering these proposals, we need assurances that we can adequately conduct oversight following new legislation. Congressional oversight, however, depends on truthful testimony. Intelligence officials cannot be permitted to lie with impunity.

I respectfully request an update as soon as possible.

It's good to see Sensenbrenner following up, though I highly doubt that the DOJ will do a damn thing about it.

Filed Under: doj, eric holder, james clapper, jim sensenbrenner, lying to congress