Artist Sues Church For Moving His 9/11 Memorial Sculpture

from the this-again? dept

It's pretty rare for us to bring up the issue of "moral rights" over creative works in the US, and even rarer to directly reference VARA -- the Visual Artists Rights Act of 1990 -- and yet, here we are, twice in one week discussing VARA claims. Even more incredibly, both are about sculptures that were placed for free in parts of lower Manhattan, right off Wall St. The claim that's received lots of attention was the one over the Wall St. Bull and the fact that another statue was placed near the bull, which the artist claims changes his message, and thereby violates VARA. This other claim is from another sculptor, Steve Tobin, who is suing Trinity Church for moving his 9/11 memorial sculpture to Connecticut.

VARA, if you don't remember, was a bill passed in 1990, as a half-assed way to try to pretend that the US is in compliance with the Berne Convention -- the large (and almost entirely awful) international agreement on copyright and copyright related issues. Part of the Berne Convention requires that countries signing on recognize so-called "moral rights." For the most part, copyrights are considered economic, rather than moral rights, which is why they can be bought and sold. Moral rights, on the other hand, are a concept more popular in Europe, which argue beyond the economic rights, the creators of works have certain "moral" rights in what is done with those works. In order to pretend that the US fulfilled the Berne Convention requirements without actually introducing a full moral rights regime, Congress passed VARA in 1990, which gave fairly limited moral rights only to "visual" works like paintings and sculptures. The specific moral rights granted include the right to claim authorship in the work you created, and to prevent the destruction or mutilation of your work -- which is what we discussed in the case of the Wall St. Bull (even though VARA likely doesn't apply to the Bull).

So, now for the details of this case. The Art Newspaper (the link above), which first wrote about this story, did not post a link to the filing (side note: I never understand why journalists don't link to source material if they have access to it). You can read the whole thing here. But the quick summary, as explained in the link above, is this:

The sculpture The Trinity Root recalled a sycamore tree that stood in front of the 320-year-old church and bore the brunt of the debris from the collapse of the Twin Towers on 11 September, preserving the church from more extensive damage. Tobin convinced the rector of the church at the time to allow him to excavate the stump and roots of the tree so that he could create a bronze memorial. The artist was not paid by the church and covered the production costs himself—estimated at more than $1m according to the lawsuit filed in federal district court on Wednesday, 12 April—on the promise that the work would remain in the courtyard permanently.

The sculpture was installed in 2005, but a different rector decided it should be removed in 2015, without informing the artist, and relocated to a church-owned seminary in northwestern Connecticut. “The new rector, Dr William Lupfer, didn’t like it, thought it was ugly and took up too much real estate and wanted it gone,” said Kathleen Rogers, Tobin’s business manager. In the process of moving the three-tonne sculpture, some elements were damaged, the lawsuit says.

You can see a snapshot of the Trinity Root by Tony Fisher here (licensed under a CC-BY 2.0 license):

Large sections of the filing focus on the fact that in multiple press announcements and stories about the Trinity Root, the church mentioned that the sculpture would be a "permanent" installation (and in at least one case, Tobin himself put out a press release with the same claim, and the press release had the church's approval).

The lawsuit goes to great lengths to also note that this is Tobin's most famous work, that it's tied up with his reputation and that lots and lots of people come to visit it. Oh, and also he explains just how much effort was taken in creating, transporting and installing the sculpture (they even had to get the George Washington Bridge to close to allow him to transport the sculpture across it. In other words, this was no small undertaking. There's also a video of the creation, transportation and installation of the Trinity Root:

The complaint also reveals some of the discussions that Tobin had with Trinity Church after finding out that the new Rector didn't like the sculpture (or the crowds that came to see it). Tobin keeps telling the Church that the artwork is "site specific," and the church keeps asking him if he'd help them move it away at the church's expense. Also this: according to the lawsuit, as Tobin kept arguing with the church over moving the sculpture, they apparently went and did it anyway without telling him, and they continue to discuss over the phone with him his objections to moving it, without mentioning that they had already moved it.

One more twist in the contract between Tobin and the church is that Tobin agreed to one of those "you give us everything" clauses reading:

Under the heading "OWNERSHIP; COPYRIGHT" the Agreement further provided that "Tobin hereby transfers and assigns to Trinity by charitable donation all right, title and interest to the Sculpture and all materials related thereto (including but not limited to all sketches, photographs and audio-visual footage), including but not limited to the copyright therein, and any cause of action that Tobin may have with respect thereto, in perpetuity throughout the universe, for use in any manner and in any media now known and hereafter invented."

The question is whether this would count as a waiver of moral rights under VARA. You can't assign your moral rights to another party, but you can waive them. But a waiver, under VARA, has to be written and it has to specify the "uses of that work to which the waiver applies." Tobin's lawyers have a point that the above doesn't seem to be a waiver (and, Trinity Church might want to talk to whatever lawyer drew up that agreement...).

Finally, it's revealed that in moving the sculpture from Manhattan to Connecticut, the statue was damaged in a few places, which gives Tobin more of a claim under VARA for "mutilation" of his work.

So what does this all mean... At a glance, it seems like Tobin has a much more credible claim under VARA than the guy who created the bull, but it still seems... nutty. The idea that the church can never move a statue in its courtyard just seems wrong. And, at the very least, this case is another example of why we should let the Copyright Office know that expanding moral rights is a really bad idea. Remember, the Copyright Office is currently studying the question of expanding moral rights, and the comment reply period is still open (until May 15th).

In the end, while the damaging of the statue perhaps adds at least some greater credibility to the VARA claim -- even though it wasn't designed to be a mutilation, just an accident while moving -- the fact that an artist can claim (even after giving up all rights and title to the piece) that because the piece has some connection to a site, the owners can no longer move it, would be really, really dangerous. Yes, there's a stronger argument here as to why this one location is directly tied to this piece of artwork (and many other artists would have trouble showing the same level of connection), any time you argue that artwork is so connected to its siting that moving it would violate the law... something seems to have gone wrong. I can certainly understand why the artist is upset, but as we noted with the bull, artists give up quite a lot of control when they let art out into the world and, as in this case, hand ownership over to a third party.

Filed Under: 9/11, copyright, moral rights, steve tobin, trinity root, vara
Companies: trinity church

Chris Christie So Obsessed With Increasing Surveillance He Pretends He Was A Fed On 9/11 Even Though He Wasn't

from the the-lies-your-politicians-tell dept

Other than when News Corp. used copyright to takedown its own feed from last night's GOP Presidential debates, there really wasn't much that was Techdirt-related. The only other significant moment was a bit of a debate between Chris Christie and Rand Paul concerning the NSA and government surveillance. As we've discussed before, Christie is a big time surveillance state supporter. He's argued that anyone opposed to NSA surveillance is guilty of "dangerous" thinking, has said that civil liberties worries about the NSA are "baloney" and has argued that Rand Paul is responsible for any future terrorist attacks, after Paul suggested that we shelve parts of the PATRIOT Act and obey the 4th Amendment.

The debate question focused specifically on Christie's comments that Rand Paul should be forced to appear in hearings before Congress if there's a future terrorist attack, to explain why he opposed greater surveillance. Reason summarized the back-and-forth:

“I will make no apologies ever for protecting the lives and the safety of the American people,” said Christie. “We need to give more tools to our folks to be able to do that, not fewer, and then trust those people and oversee them to do it the right way. As president, that’s exactly what I will do.”

Paul shot back immediately.

“I want to collect more records from terrorists, but less records from innocent Americans,” said Paul. “The Fourth Amendment was what we fought the Revolution over. John Adams said it was the spark that led to our War for Independence. I’m proud of standing for the Bill of Rights and I will continue to stand for the Bill of Rights.”

Christie insisted that Paul had given a “ridiculous” answer, since there is no way to tell the terrorists apart from the innocent American citizens. Paul responded that the way to discern the difference is to ask a judge for a warrant.

“I’m talking about searches, without warrants, indiscriminately of all American’s records, and that’s what I fought to end,” said Paul.

But there was one very odd moment at the very beginning, before the exchange above. Christie noted that he was appointed to his former job as a US Attorney on September 10th of 2001:

MEGYN KELLY: Do you really believe you can assign blame to Senator Paul just for opposing he bulk collection of people’s phone records in the event of a terrorist attack?

CHRISTIE: Yes, I do. And I’ll tell you why: because I’m the only person on this stage who’s actually filed applications under the Patriot Act, who has gone before the federal — the Foreign Intelligence Service court, who has prosecuted and investigated and jailed terrorists in this country after September 11th.

I was appointed U.S. attorney by President Bush on September 10th, 2001, and the world changed enormously the next day, and that happened in my state.

This is not theoretical to me. I went to the funerals. We lost friends of ours in the Trade Center that day. My own wife was two blocks from the Trade Center that day, at her office, having gone through it that morning.

I found that interesting, because I didn't know that. And perhaps the reason I didn't know that is that it's complete bullshit. As Marcy Wheeler points out on Emptywheel, Christie was actually nominated months later, with the announcement that he was going to be nominated released on December 7th, 2001

The President intends to nominate Christopher J. Christie to be United States Attorney for the District of New Jersey. Christie has been a partner with Dughi, Hewitt and Palatucci of Cranford, New Jersey since 1987. He is a graduate of the University of Delaware and Seton Hall University School of Law.

Christie took office in January 2002.

Also, it's the Foreign Intelligence Surveillance Court, not the Foreign Intelligence Service Court, as he says -- but that's the kind of thing that is probably a forgivable mistake in such a setting. But arguing that you were appointed months before you actually were seems like a pretty blatant lie and one you wouldn't make without deliberately seeking to mislead people. As Wheeler also points out, Christie's own official bio notes that he "was named U.S. Attorney for the District of New Jersey in 2002."

Also, for all his talk about he went before the court whose name he couldn't get right, that's actually not how it works. US Attorneys don't do that (others in the DOJ do it instead). Wheeler further points out that if what Christie implies is true, then he may have been making use of illegal wiretaps during his time on the job -- so perhaps that's why he doesn't want more scrutiny of the program:

Christie implies he was involved in the dragnet in question. He was US Attorney from January 2002 to December 2008 — so he in fact would have been in office during the two years when the phone dragnet worked through the Servic–um, Surveillance court, and four years of the Internet dragnet. But if, as he implies, he was involved in the dragnet for the entire span of his tenure — and remember, there were huge cases run out of Trenton right out of 9/11 — then he was also using the fruits of illegal wiretapping to do his job. Not Servic — um, Surveillance court authorized dragnets and wiretaps, but also illegal wiretaps.

Which may explain why he’s so invested in rebutting any questions about the legitimacy of the program.

Remember, when people have actually looked more closely at Christie's high profile cases, such as the Fort Dix Five, it was revealed as a totally bogus manufactured plot, in which it appears Christie pushed trumped up charges against a set of brothers who didn't seem to have anything to do with a terrorist plot at all.

Filed Under: 9/11, chris christie, debate, fisa court, fisc, lies

Be Careful Not To Hire Conspiracy Theory Nuts To Run Your Social Media: The Shaquille O'Neal Story

from the shaq-fool dept

I've always suspected that most famous people have outside groups managing their social media engagements for them. That is why I almost never follow celebrities on social media sites. What's the point? At the same time, with the importance of self-branding in the media today, I understand why these outside groups are used. What I don't understand, however, is why a famous person might entrust his or her social media brand to a group that might just end up making a client look foolish.

Take, for example, Shaquille O'Neal. The former NBA star and current NBA commentator has quite a presence on the web, which is what made it so strange when his personal website and Facebook page suddenly began announcing that Shaq was one of those 9/11 truther types.

There was more like that. On the one hand, everyone, including Shaq, is allowed to think that 9/11 was the work of government conspiracy pulled off by the evil overlords that have been running this country for their own personal benefits. On the other hand, 9/11 truthers are sadly hilarious as a general rule, but picturing the low-voiced, enormous Shaq wagging his finger about holographic 747s and shouting about the melting temperature of steel would be the kind of funny I'd pay real money to see.

Turns out that hilarious scenario will never be, however, as Shaq released a statement saying some yahoos at his social media management company were the ones responsible. Digital Mavericks, the outside firm that Shaq has since fired, also released a statement.

Statement from Shaquille O’Neal: This post was insulting and offensive, and I apologize to everyone who came across it. Once I learned that it was on my Facebook page and blog, I ordered it removed and fired the firm that posted it. I am not and never have been a “9/11 truther.’’ My father served our country and I am immensely proud of the sacrifices people make daily to keep us safe. The events of 9/11 were a horrible tragedy for our nation and it’s a disgrace that anyone would think otherwise.

Statement from Matt Argall, CEO of Digital Mavericks: Our firm helped manage content for Shaquille O’Neal’s Facebook page and blog. Yesterday, one of our employees posted a link on Mr. O’Neal’s social media that related to the tragic events of 9/11. Mr. O’Neal had no knowledge of the posting. Further, it does not represent the views of Mr. O’Neal, our clients or our organization. We sincerely apologize. We have removed the link from Mr. O’Neal’s social media and no longer manage social media content for him. We are very sensitive to the tragedy of 9/11 and apologize greatly for this post.

In the meantime, nobody reading anything on Shaq's site or social media sites will have any reason to believe that the posts are actually coming from him. Which is what makes celebrities on social media so lame. The truth is that it would have been far more fun if Shaq was a 9/11 truther. Fun and sad, yes, but still fun. Oh well, hopefully the next company he contracts with has some nonsense to say about vaccines or something.

Filed Under: 9/11, shaquille o'neal, social media, truthers
Companies: digital mavericks

Turns Out Feds Actually Tracked Most International Calls For Nearly A Decade Before 9/11 -- Didn't Stop The Attack

from the well,-look-at-that dept

One of the big arguments trotted out repeatedly by surveillance state defenders concerning the NSA's Section 215 program to collect records on all phone calls is that such a thing "would have prevented 9/11" if it had been in place at the time. Here's former FBI boss Robert Mueller making just that argument right after the initial Snowden leaks. Here's Dianne Feinstein making the argument that if we had that phone tracking program before September 11th, we could have stopped the attacks. And here's former NSA top lawyer and still top NSA supporter Stewart Baker arguing that the program is necessary because the lack of such a program failed to stop 9/11.

Except, it turns out, the feds did have just such a program prior to 9/11 -- run by the DEA. As you may recall, back in January it was revealed that the DEA had its own database of phone call metadata of nearly all calls from inside the US to foreign countries. Brad Heath at USA Today came out with a report yesterday that goes into much more detail on the program, showing that it dates back to at least 1992 -- meaning that the feds almost certainly had the calls that Feinstein and Mueller pretended the government didn't have prior to 9/11.

The now-discontinued operation, carried out by the DEA's intelligence arm, was the government's first known effort to gather data on Americans in bulk, sweeping up records of telephone calls made by millions of U.S. citizens regardless of whether they were suspected of a crime. It was a model for the massive phone surveillance system the NSA launched to identify terrorists after the Sept. 11 attacks. That dragnet drew sharp criticism that the government had intruded too deeply into Americans' privacy after former NSA contractor Edward Snowden leaked it to the news media two years ago.

But, you might say, perhaps the DEA didn't share that info with the NSA. Well... if we go back to some of the NY Times award-winning reporting on the NSA's surveillance programs from 2007, we see that it actually mentions this DEA program... and notes that the NSA worked with the DEA on it:

In the drug-trafficking operation, the N.S.A. has been helping the Drug Enforcement Administration in collecting the phone records showing patterns of calls between the United States, Latin America and other drug-producing regions. The program dates to the 1990s, according to several government officials, but it appears to have expanded in recent years.

Officials say the government has not listened to the communications, but has instead used phone numbers and e-mail addresses to analyze links between people in the United States and overseas. Senior Justice Department officials in the Bush and Clinton administrations signed off on the operation, which uses broad administrative subpoenas but does not require court approval to demand the records.

That's from 2007 reporting by James Risen, Eric Liechtblau and Scott Shane. Heath's reporting fills in some additional gaps:

The data collection began in 1992 during the administration of President George H.W. Bush, nine years before his son, President George W. Bush, authorized the NSA to gather its own logs of Americans' phone calls in 2001. It was approved by top Justice Department officials in four presidential administrations and detailed in occasional briefings to members of Congress but otherwise had little independent oversight, according to officials involved with running it.

The DEA used its data collection extensively and in ways that the NSA is now prohibited from doing. Agents gathered the records without court approval, searched them more often in a day than the spy agency does in a year and automatically linked the numbers the agency gathered to large electronic collections of investigative reports, domestic call records accumulated by its agents and intelligence data from overseas.

The result was "a treasure trove of very important information on trafficking," former DEA administrator Thomas Constantine said in an interview.

The report also shows how the DEA got this info from telcos using the simple process of an administrative subpoena, so there was no court review. Telcos could have protested and gone to court, but the DOJ urged them not to do so:

The DEA obtained those records using administrative subpoenas that allow the agency to collect records "relevant or material to" federal drug investigations. Officials acknowledged it was an expansive interpretation of that authority but one that was not likely to be challenged because unlike search warrants, DEA subpoenas do not require a judge's approval. "We knew we were stretching the definition," a former official involved in the process said.

Officials said a few telephone companies were reluctant to provide so much information, but none challenged the subpoenas in court. Those that hesitated received letters from the Justice Department urging them to comply.

After Sprint executives expressed reservations in 1998, for example, Warren, the head of the department's drug section, responded with a letter telling the company that "the initiative has been determined to be legally appropriate" and that turning over the call data was "appropriate and required by law." The letter said the data would be used by authorities "to focus scarce investigative resources by means of sophisticated pattern and link analysis."

And, of course, the DEA kept this whole database of metadata a secret by... using parallel construction:

To keep the program secret, the DEA sought not to use the information as evidence in criminal prosecutions or in its justification for warrants or other searches. Instead, its Special Operations Division passed the data to field agents as tips to help them find new targets or focus existing investigations, a process approved by Justice Department lawyers. Many of those tips were classified because the DEA phone searches drew on other intelligence data.

That practice sparked a furor when the Reuters news agency reported in 2013 that the DEA trained agents to conceal the sources of those tips from judges and defense lawyers. Reuters said the tips were based on wiretaps, foreign intelligence and a DEA database of telephone calls gathered through routine subpoenas and search warrants.

As a result, "the government short-circuited any debate about the legality and wisdom of putting the call records of millions of innocent people in the hands of the DEA," American Civil Liberties Union lawyer Patrick Toomey said.

Heath's report also notes that the NSA metadata collection under Section 215 was very much modeled on the DEA's collection that began a decade earlier. If there are any differences between the two it seems that the NSA was actually much more restrained in how it used all the phone call metadata.

For one thing, DEA analysts queried their data collection far more often. The NSA said analysts searched its telephone database only about 300 times in 2012; DEA analysts routinely performed that many searches in a day, former officials said.

Again, this DEA program isn't really a new revelation, but Heath's reporting sheds a lot more light on how widespread it was and how it was used over the years.

And, also, as we are less than two months away from the big fight over renewing Section 215 of the PATRIOT Act, you can be sure that some surveillance state defender is going to cite 9/11 as a reason why we need to keep the program. Hopefully, people can remind them that it appears we had just such a program (which was even more widely used) at the time, and it did not stop 9/11.

Furthermore, Heath's reporting shows that once the program disappeared, while the DEA claims it missed the program, it was quickly able to build a more reasonable followup by just targeting specific numbers:

The DEA asked the Justice Department to restart the surveillance program in December 2013. It withdrew that request when agents came up with a new solution. Every day, the agency assembles a list of the telephone numbers its agents suspect may be tied to drug trafficking. Each day, it sends electronic subpoenas — sometimes listing more than a thousand numbers — to telephone companies seeking logs of international telephone calls linked to those numbers, two official familiar with the program said.

In other words, targeted surveillance, rather than mass surveillance. As many have been arguing for years, there's no reason why the NSA can't adopt a similar program. So don't believe the intelligence community and its apologists when they wrongly insist that such a mass surveillance program is necessary.

Filed Under: 9/11, administrative subpoena, bulk phone records, dea, judicial oversight, metadata, phone records, section 215, surveillance

9/11 Trial Grinds To A Halt As Evidence Surfaces That FBI Subverted Attorney-Client Privilege

from the hey,-it's-just-a-'privilege,'-amiright? dept

More evidence is being uncovered indicating that if the government wants access to privileged attorney-client communications, it will find a way to do so. This new incident, tied to the 9/11 trials, follows the news that the NSA gave Australian intelligence the go-ahead to intercept communications between an American lawyer and his Indonesian clients.

This previous incident resulted in the American Bar Association sending a letter to the NSA asking it to uphold the sanctity of attorney-clients communications. Gen. Alexander's response was basically "of course we respect that, but we grab so much stuff there's no way for us to guarantee we'll never intercept privileged communications." Not much in the way of reassurance there, and this following story shows there's even less reason to believe that investigative and national security agencies won't insert themselves into the attorney-client relationship.

Two weeks ago, a pair of F.B.I. agents appeared unannounced at the door of a member of the defense team for one of the men accused of plotting the 9/11 terrorist attacks. As a contractor working with the defense team at Guantánamo Bay, Cuba, the man was bound by the same confidentiality rules as a lawyer. But the agents wanted to talk.

They asked questions, lawyers say, about the legal teams for Ramzi bin al-Shibh, Khalid Shaikh Mohammed and other accused terrorists who will eventually stand trial before a military tribunal at Guantánamo. Before they left, the agents asked the contractor to sign an agreement promising not to tell anyone about the conversation.

With that signature, Mr. bin al-Shibh’s lawyers say, the government turned a member of their team into an F.B.I. informant.

There's not much more available detail-wise, as the defense's motion informing the court of this subversion is -- like most of the documents related to this trial -- under seal. But everything leading up to this new revelation indicates the government views this trial to be a forum where the normal rules just don't apply.

To begin with, this was never meant to be much more than a show trial. The special tribunal system was set up by President Bush after the 9/11 attacks, specifically for suspected terrorists. (Despite the stacked deck -- foreign terrorism suspects aren't afforded the same legal protections as US citizens -- the court has yet to secure a conviction in its 12+ years of existence.) This special system has resulted in several instances of access to attorney-client communications, some intentional and others (supposedly) more inadvertent.

Last year, the government acknowledged that microphones were hidden inside what looked like smoke detectors in the rooms where detainees met with their lawyers. Those microphones gave officials the ability to eavesdrop on confidential conversations, but the military said it never did so…

A botched computer update gave prosecutors and defense lawyers access to the other side’s confidential work. And the Pentagon acknowledged inadvertently searching and copying defense lawyers’ emails but said nobody read them.

And it's not just the defense that's bothered by these incidents.

Christopher Jenks, a Southern Methodist University law professor and a former military prosecutor, said he sympathized with the Guantánamo prosecutors, who appeared to have been just as surprised as defense lawyers by the appearance of the F.B.I. and C.I.A. in their cases.

But even more troubling is the fact that an agency supposedly uninvolved in the proceedings has gone so far as to subvert the judicial process altogether.

Last year, as a lawyer for Mr. Mohammed was speaking during another hearing, a red light began flashing. Then the videofeed from the courtroom abruptly cut out. The emergency censorship system had been activated. But why? And by whom? The defense lawyer had said nothing classified. And the court officer responsible for protecting state secrets had not triggered the system. Days later, the military judge, Col. James L. Pohl, announced that he had been told that an “original classification authority” — meaning the C.I.A. — was secretly monitoring the proceedings. Unknown to everyone else, the agency had its own button, which the judge swiftly and angrily disconnected.

After witnessing the amount of effort the CIA has made in order to thwart the release of the torture report, it's of no surprise that it tried to control the narrative here as well. It's also no surprise the agency feels it should defer to no one, not even a presidentially-directed tribunal.

The government does have a little more leeway, considering these aren't your normal, subject-to-due-process trials, but it's still problematic that despite the advantages of a quasi-tribunal set up by a presidential order in the wake of the 9/11 attacks, government investigative agencies still feel compelled to not only insert themselves into the process, but to subvert client-attorney privilege on top of it. All's fair in the War on Terror, it would appear, even when those suspects are safely locked up and going into their second decade of detention as the broken process labors on.

Filed Under: 9/11, attorney-client privilege, cia, fbi, guantanamo, nsa, show trial

Mike Rogers Lies About Bulk Data Collection, Insists It's Necessary, Even As He Introduces Bill He Says Will Kill It

from the say-what-now? dept

As was expected, on Tuesday morning, Rep. Mike Rogers officially introduced his new bill concerning bulk data collection by the NSA. Overnight, it appears that Rogers and his staff realized that the originally proposed name of the bill, the End Bulk Collection Act of 2014, was so bogus that they couldn't go forward with that. So the official bill is now called the FISA Transparency and Modernization Act. There are significant concerns about how the section on supposedly "ending" bulk collection might actually allow for even greater searches of data.

But the thing that seemed most ridiculous was that, at the same time Rogers gave his press conference in which he claimed he was ending the bulk data collection by the NSA, he was publishing an op-ed in USA Today claiming the program was "necessary" and "vital" and that was why he was calling for it to end. He kicks it off with an already widely debunked bullshit story about how Section 215 could have stopped 9/11:

On the morning of September 11, 2001, Khalid al-Mihdhar stepped on to American Airlines Flight 77, the flight he would later crash into the Pentagon. Al-Mihdhar might have been in prison, instead of on that flight, if the government knew he had called an al-Qaeda safehouse in Yemen from inside the U.S. seven times before the attacks. The failure to spot phone calls by al-Mihdhar and others led the Intelligence community to begin collecting large volumes of call data records, specifically the number dialed and the date and duration of the call, to determine whether suspected terrorists had contacts inside the United States.

This is simply not true. The NSA was already intercepting calls to that very safehouse starting at least two years earlier. The CIA had been following al-Mihdhar for years earlier. The FBI was aware of him as well. The problem was that the CIA failed to alert anyone that Mihdhar had a US visa and came to the US. So the problem was never that they didn't have the information. It was that the NSA, the FBI and the CIA simply didn't cooperate and share the necessary information. This has nothing to do with the Section 215 bulk data collection.

Since last summer, a great deal has been written about the program's scope, capabilities and legality —much of it wrong. The fact is that the program is legal. It was authorized by Congress and found constitutional many times over. No review of the program revealed an intentional misuse of its authority.

This is not actually accurate. It is not a "fact" that the program is legal. At least one court has said that it is not legal as has the Privacy and Civil Liberties Oversight Board (PCLOB), who found the program to be clearly both illegal and unconstitutional. As for the claims that it was "authorized" by Congress and found "constitutional" many times over, neither is particularly accurate. Mike Rogers himself hid the details of the program from Congressional reps who voted on it, and the FISA court never actually explored the constitutionality of the bulk phone records collection until after the Snowden revelations, at which point it had to cover its ass for all the approvals of the program it had given based on a totally different authority.

We recognize that the Intelligence community must have the confidence of the American people to do its life-saving work. Over the past nine months, we have studied ways to reform the program while maintaining its effectiveness.

WHAT EFFECTIVENESS? Everyone who has explored the program has admitted that they were somewhat shocked to learn that there is no evidence anywhere that the program has done anything useful, ever. To argue that we need to "maintain its effectiveness" is a joke.

Most of the rest of the piece is trying to explain why his new bill is a good idea, even after he opened it with a series of outright lies. Then, apparently because he can't resist, he closes on a misrepresentation as well:

Without NSA counterterrorism tools, Najibullah Zazi might have set off bombs during rush hour in the New York City subway in September 2009.

Except the Zazi case is another one that's been debunked as well. But that doesn't stop Rogers from doubling down on his argument:

Some people may say that's "not enough" when compared to the amount of information the NSA obtains, but we would be shocked if anyone on September 12, 2001, wouldn't have done everything possible to find hijackers like al-Mihdhar and prevent just one terrorist attack.

Yeah, that's a great closer. The argument that anything goes because of September 11th should, frankly, disqualify Rep. Rogers from holding office. Doing "everything possible" would mean abandoning the Constitution that Rogers is supposed to be upholding. We're a nation built on the principle that we don't abridge basic freedoms to "do everything possible" to stop one crime. Yet, Rogers still doesn't seem to recognize this.

Filed Under: 9/11, bulk data collection, ed snowden, khalid al-mihdhar, mike rogers, najibullah zazi, nsa, surveillance

Ex-CIA Director And Current Surveillance Task Force Member Mike Morell Parrots Talking Points To Defend Bulk Collections

from the death-of-three-thousand-exploited-to-surveil-millions dept

Former no. 2 man at the CIA and current surveillance task force member Mike Morell has made only a few comments since his new appointment, but every one he's made indicates he's a true "company man."

Last month, he astounded his fellow task force members by asserting that the NSA's metadata programs should be expanded, despite other members arriving at the conclusion that there was very limited evidence, if any, that the programs produced useful intel. And that's only what he said when he bothered to show up. Morell skipped the first set of meetings, claiming the review board's very existence threatened to distract Congress from ending the government shutdown and doctors from curing pediatric cancer. (I AM NOT LYING.)

Now, he's decided to offer his opinion again, and he's back to defending bulk record collections using a completely debunked argument.

"If the program were in place before 9/11, I believe it would have prevented 9/11," Mike Morell said earlier today on the CBS television program `Face the Nation.' "And by the program, I mean two things. I mean, NSA's ability to query the database, which would have allowed NSA to find one of the 9/11 hijackers in California, and the part of the program where NSA shares such information with the F.B.I. If both of those pieces had been in place, 9/11 would have been prevented by this program."

Wrong. Wrong. Wrong. Wrong. Wrong. Wrong. Wrong.

This "theory" that the NSA was hamstrung by its lack of access to millions of irrelevant call records practically debunks itself at this point. The defenders of these programs can't seem to find a better rhetorical device than this one, which has been completely eviscerated by dozens of intelligence experts and the 9/11 Commission itself.

Morell's position on the surveillance review task force seems to be as a "devil's advocate" -- someone placed on the board by the president to ensure no one gets too carried away trying to protect Americans' rights or limit the NSA's power.

Morell also delivered the other company line, this one equally as provably false as the first.

"There have been a handful of cases, literally, a handful where NSA employees have looked into the database inappropriately, looked at boyfriends or girlfriends and every one of those cases, they were dealt with appropriately and I believe, actually, some of them may have been fired. But that's the limited abuse that has taken place. There has been no systematic abuse, there has been no political abuse, it has been minor, very minor."

Just as wrong. Just as stupid. Just as willfully ignorant of the NSA's abuse of its capabilities.

Rather than point out where Morell's wrong, I'd rather link to (and quote) a response by blogger Alex Marthews at Digital Fourth ([p]h/t to Popehat) that puts into very effective words just how sick of the "prevent 9/11" justification we all are:

Its apologists scurry round spreading fear about reforms that would actually make their work more restrained and effective, and in a last, desperate throw of the dice, they are invoking the shadow of 9/11 – the same 9/11 that their bulk surveillance failed to thwart last time around. These days, the only terrorist attacks they seem capable of thwarting are the ones they gin up in advance…

These clowns gleefully threw the Constitution on the fire, and gave us NOTHING in return. We’re not safer. We’re certainly not richer. We have lost so much, so that a few people could become extremely rich and powerful, and our corrupt system is now incapable of holding them personally to account. Yet still they yammer on, clamoring for more funding for an NSA that doesn’t work, a TSA that doesn’t work, an FBI that chases imaginary plots instead of focusing on locking up actual criminals. They have played on our fears to make us exchange realistic risk assessment for a meaningless, nightmarish pantomime where we, the American people and indeed the people of the whole world, have to accept the loss of every freedom we hold dear in order to “do whatever it takes” to “catch the bad guys...”

Do you think we’re all scared six-year-olds hiding underneath our stairwells, waiting for Big Daddy NSA to tell us that everything’s OK and we can come out now?

[...]

You’re the six-year-olds here, standing there with the Constitution on a skewer over an open flame and hollering, “9/11 MADE ME DO IT.”

This is all the agency's defenders have to offer in defense of massive, untargeted surveillance, and it's simply not good enough. Even if the "we could have prevented 9/11" claim were true (which is isn't), it still wouldn't be enough to justify what the NSA does under the cover of "national security." The involved agencies couldn't protect us the first time, and now their defenders are claiming that if everything gets left alone, they can ensure an attack-free future. And they expect us to believe that claim, even after their collective minds have been unable to conjure up a scarier prevented terrorist "attack" than a person sending $8,500 to Al Shabab.

Morell has no position on a surveillance oversight board. He's skipped meetings and issued talking points, and appears to be wholly uninterested in doing the job he's been tasked with. He's an intel flack whose years of experience at the CIA have given him little more than a greater disregard for Americans' civil liberties.

Filed Under: 9/11, metadata, michael morell, mike morell, nsa, task force

Detailed Study Suggests NSA Rarely Useful In Stopping Terrorism

from the but-fear! dept

While we've already seen multiple detailed analyses of why the NSA's bulk collection of email data under Section 215 of the PATRIOT Act hasn't been particularly helpful in stopping any real terrorist attacks on the US, there are still other NSA programs as well. The folks over at the New America Foundation have put out a detailed new report looking at whether any of the NSA's programs have been effective. The report finds, exactly as everyone else has, that the Section 215 effort was only helpful in finding one guy who sent some money to Somalia. However, more importantly, it also looks at the other big NSA program, the one that comes under Section 702 of the FISA Amendments Act which includes (among other things) the PRISM program that got a lot of attention. Once again, the evidence of 702's usefulness is fairly minimal. The report finds that it was used in less than 5% of investigations of people charged with terrorism since 9/11.

The full report looks at all 225 individuals who were either part of Al Qaeda or an associated group and charged with terrorism since 9/11. In looking over every plot they were involved in, you see that much more traditional means of catching terrorists were involved in almost every case. There are community/family tips, informants, other non-NSA intelligence, routine law enforcement, self-disclosed by publicizing his own extremist activity, "suspicious activity" reports... and of course, plots that weren't actually prevented. There is, to be fair, a large number of plots where the discovery is from "unclear" means -- and it's entirely possible that some of those were discovered under the Section 702 programs. However, at the very least, this calls into question just how valuable either of these key NSA efforts really are.

Filed Under: 9/11, fisa amendments act, nsa, patriot act, section 215, section 702, terrorism
Companies: new america foundation

Keith Alexander Tells Senators He Can't Think Of Any Other Way To Keep The US Safe Other Than Bulk Metadata Collections

from the oh,-he-knows-other-ways...-he-just-doesn't-like-them dept

NSA head Gen. Alexander once again appeared before the Senate to defend his agency's actions and to deliver the talking points in an effort to head off a number of pieces of legislation aimed at rolling back the NSA's powers.

If the NSA has a chance to hold off what now appears to be near inevitable, it will need to update its rhetorical ploys. Alexander offered nothing much in the way of new arguments, which is only going to hurt the agency's position. It looks as though the old stuff isn't really working anymore. His assertion that the Section 215 program has led to 50+ terrorist attacks averted has disintegrated. Sen. Leahy raised additional questions about the efficiency of the 702 program (internet metadata) in the hunting terrorists. No answer was forthcoming but the agency head implied it would take much longer than next Wednesday's hearing to come up with an answer.

No surprises here either, as Gen. Alexander almost literally played the 9/11 card.

"Metadata is a way of knowing where those books are in the library, and a way of focusing our collection... to knowing, where are the bad books," Alexander says.

He holds up an index card – it's meant to be an old-style card-catalog card (sorry, millennials) – on which are listed the categories of information encompassed by "metadata": time, date, duration, contact numbers.

Then he returns to the 9/11 attacks and says, as he always does, that the attack might have been stopped by a metadata collection program like the USA has now.

Might have been. Except it wasn't. Sen. Leahy called Alexander out for using this tired ploy.

Leahy jumps in and says the failure to prevent the 9/11 attacks also has been put down to a failure to communicate within the intelligence community. US agents had the info they needed, they just failed to share it with one another.

There's no tread left on those tires, General. The Guardian points out this is the first time Alexander has been interrupted while deploying the "could have prevented 9/11" argument.

This wasn't the only used-up rhetoric Alexander deployed. He defended the bulk collections by claiming he "didn't know" a "better" way to protect Americans from terrorism.

"I don't know a better way to do it,” he said. "It's like holding onto a hornets' nest. We're getting stung. You've asked us to do this for the good of the nation … nobody's thought of a better way. We can't let the nation down."

That was Alexander's justification. There's no other way but a bulk, untargeted metadata collection containing millions of records of non-suspects.

But when Alexander says there's no other way to keep Americans safe, he's (no surprise) lying. There is another way and Alexander knows it because the NSA was forced (by the FISA court) to accomplish the task of fighting terrorism without being given access to millions of non-relevant phone records. FISA Judge Walton's orders, which followed on the heels of the admission of widespread abuse of the Section 215 collections, forced the NSA to seek court approval just to search what had previously been collected.

Since the March 5, 2009 FISA Court order, the Court's approval has been required for each selector before it is tasked for BR FISA metadata analysis. On Mar 21 NSA resumed manual access to BR FISA metadata, allowing chaining [redacted] of FISA Court-approved selectors associated with [redacted] following multiple operational and technical reviews to ensure compliance.

As Judge Walton noted then, the collection itself seemed to be overkill and prone to abuse.

The minimization procedures… have been so frequently and systemically violated that it can fairly be said that this critical element of the overall BR regime has never functioned effectively.

Nearly all of the call detail records collected pertain to communications of non-US persons who are not the subject of an FBI investigation… [or] are communications of US persons who are not the subject of an FBI investigation… and are data that otherwise could not be legally captured in bulk by the government.

So, there are other ways to accomplish this and the agency has had to work within stricter limitations in the past. The multiple flaws in Alexander's assertions are highlighted in this statement. Most of what's collected isn't pertinent to investigations and is, in fact, bordering on illegal. The only thing saving Alexander's favorite collection is some very favorable readings of the Third Party Doctrine and secret interpretations of the laws governing these data hauls.

Legislative efforts being made aim to roll back some of this power, something Alexander can't bear to see happen. If nothing else, a neutral storage site that can only be accessed by court-aprroved RAS selectors would be a start. But according to the chief spy, these limitations would lead to another 9/11. He wants it all and he wants unfettered access. There are other ways of compiling and searching metadata. Alexander knows this, but he has no interest in a more targeted approach.

This is Alexander's "hornet nest." Any stings he collects while handling it are solely his fault. If he doesn't like the pain associated with handling the hornet's nest, maybe he shouldn't have fought so hard to keep holding it.

Filed Under: 9/11, bulk data collection, fud, keith alexander, nsa, surveillance, terror

Former NSA Lawer Stewart Baker: FISA Minimization Policies Are To Blame For 9/11 Attacks

from the next-up:-opinion-blogs-to-blame-for-9/11-attacks! dept

Stewart Baker, former DHS official and NSA counsel, has plenty of blame to spread around for the 9/11 attacks. None of it seems to lay at the feet of the terrorists who performed the attacks, however. He's entertained various theories over the past few months as he's defended the actions of the NSA, TSA and various other government agencies.

Most egregiously, Baker claimed civil liberties activists were to blame for the 9/11 attacks because their concern over warrantless wiretap programs somehow made the FISA court so defensive it wouldn't let the FBI pursue terrorists it knew were currently in the country.

Baker expounds on this further in his post criticizing the NSA-targeting Leahy-Sensenbrenner bill, making the argument that FISA minimization policies prevented the FBI from tracking down terrorists located in the US.

The Leahy-Sensenbrenner USA FREEDOM Act puts the Foreign Intelligence Surveillance (FIS) court in charge of shaping, overseeing, and enforcing minimization guidelines in connection with section 215, pen/trap orders, and section 702, largely taking the Attorney General out of the process of writing minimization guidelines. I’m appalled, because the FIS court has taken control of minimization before, with disastrous consequences; it built a “wall” between intelligence and law enforcement without any legal basis for doing so, and enforced the wall so aggressively that the FBI couldn’t use its best counterterrorism assets to track down the hijackers in late August and early September 2001. In a very real sense, it was the FIS court’s legal error combined with a self-righteous use of its contempt power that thwarted the country’s last, best chance to stop the attacks.

Baker is one of the only people out there who have taken the FISA court to task for being "too restrictive." According to Baker, this is because its reaction to early "rubber stamp" criticism was to swing the other way and utilize its contempt power to limit the reach of intelligence agencies.

It's hard to argue with the rubber stamp perception, considering the court has approved nearly every request that has crossed its desk. The court may argue that several requests are sent back for major changes before finally being approved, but the end result is still the same: large-scale collections of untargeted, domestic data are still being OK'ed. Not only that, but expansions of programs have been granted even as FISA judges detail large amounts of agency wrongdoing within those same opinions.

But going back to Baker's opening statement, the FISA court didn't erect a minimization "wall" that prevented data from being shared between agencies. And even if it had, the breakdown that led to a domestically-located terrorist eluding multiple US agencies would not have been affected by looser minimization standards.

The ACLU's Michael German thoroughly dissected the intelligence failures preceding the 9/11 attacks using widely-available information from the 9/11 Commission's report. Baker's supposedly hamstrung agencies are nowhere to be found.

It turns out that the NSA was intercepting calls to the al Qaeda safe house in Yemen as early as 1999, and both the FBI and CIA knew Mihdhar was an al Qaeda operative long before the 9/11 attacks.

The safe house was discovered during the FBI’s investigation into the 1998 bombings of two U.S. embassies in East Africa, and had been monitored by the NSA and CIA ever since. The inspector general’s report couldn’t be clearer that the intercepts were being broadly shared:

“The NSA’s reporting about these communications was sent, among other places, to FBI Headquarters, the FBI’s Washington and New York Field Offices, and the CIA’s CTC. At the FBI, this information appeared in the daily threat update to the Director on January 4, 2000.”

Here we see multiple agencies broadly sharing information on a known terrorist. Not only that, but the intercepted phone calls were to a known terrorist group, meaning the call data on those would be subject to very little, if any, minimization procedures and could be tipped to the FBI without stripping identifying info. At this point, three agencies knew about the calls to an al Qaeda safehouse.

What happened next had nothing to do with minimization procedures. The agencies involved knew Mihdhar was communicating with terrorist entities outside the US, so the governor was off, so to speak. Unfortunately, the CIA decided to do nothing with the additional information it had.

The CIA, however, failed to place Mihdhar on a watch list or “notify the FBI when it learned Mihdhar possessed a valid U.S. visa,” according to the 9/11 Commission report. The inspector general’s report revealed that five FBI officials assigned to the CIA Counterterrorism Center viewed CIA cables indicating Mihdhar had a U.S. visa. A week after the Kuala Lumpur meeting, Mihdhar and Hazmi flew into Los Angeles International Airport and entered the United States without a problem.

So, we have an agency failing to put a potentially dangerous person on a watch list and we have the FBI itself, the agency Baker claims was cut out of the loop by FISA court meddling, failing to do anything with the information it had pulled from CIA cables -- information Baker is apparently claiming it had no access to.

Then we have the NSA itself collecting even more data and doing nothing with it.

After their entrance, the NSA would intercept at least six calls from the al Qaida safe house in Yemen to the United States, according to the Los Angeles Times.

Even if the NSA was prevented by FISA court interference from tipping these calls to the FBI (which is doubtful, considering they were contacts with a terrorist entity), it still had the info in its possession and didn't act on it.

There are many levels of failure at play here, but protecting the data of American citizens isn't one of them. Baker's interest in placing the blame for the 9/11 attacks on the NSA's critics has gone past unseemly. At this point, he sounds like a one-man echo chamber. The entities he despises the most (EFF, ACLU, etc.) are somehow the villains in every scenario, whether it's a national tragedy or the TSA's invasive pre-flight security theater, even when every argument he makes fails to produce any evidence towards his conclusions.

Filed Under: 9/11, fisa, minimization, privacy, stewart baker