morbid games

little oomph and i got chased off the local grade-school astroturf soccer field where we've been practicing bike riding by public health authorities who were staking the place out. little oomph had just clipped a post with a handlebar and was crying between the ground and my embrace as public health authority called to me from the far side of a car to inform me the place was closed. i comforted my child (little oomph was ok; their hand was a little sore from whacking the post) while the authority approached (to about 10 ft) and repeated it. "i wondered" i said, "we were going to read that sign over there when we got within reading distance." "the signs are posted" said the authority gesturing to no signs at all. "maybe you ought to put them on that gate we came through where there were no such signs" i didn't grumble back. no need to argue or express pique; it's a thankless job, i reasoned with myself as we left. we tried a local church nursery school. had some success, bailed a couple times, decided it was too small. so we went to a local public high school parking lot across the street from a park. there were lots of people going and coming from, traversing and gathering in the park all day. we rode unmolested in the parking lot for several hours. little oomph can bring the bike to a stop and stand there holding it with fair consistency. toward the end the child managed to get going from a standstill unassisted several times, though with some frustration. finally little oomph fell and we packed it in.

talked to mom. she wanted to read an email to me. these people mostly send me jokes, she said and read a headline "guiliani interviews dr. soandso about 100% success rate curing coronavirus -- is there really a dr. soandso?" i don't know. it sounds like a name -- waitaminute: did you say guiliani? delete that and block the sender. she read on about a 100% success rate curing coronavirus with azithromycin, and zinc. i interrupted her: did you say guiliani? she said "what is the citizen free press?" it sounds to me like one of those right-wingnut propaganda sites that wingnuts accept as news. i don't think that's a joke. i mean, there's a fine line between what we recognize as trenchant parody and what a certain portion of the population take as serious independent news. so, yeah, it is a joke. you should regard it as a joke. but it is malicious disinformation. as i understand azithromycin and hydroxy chloroquine are dangerous; she seemed to know and agree to this. as a general rule, you should make every effort to prevent anything from rudy guiliani from getting into your awareness: that stuff is bad for your mind. "oh!" she twigged, "rudy guiliani?" yes: guiliani. rudy guiliani. all he wants is to throw sand in your eyes. "i didn't realize." delete that, and tell those idiots to skip you with the bullshit disinformation in future. she agreed to delete it, but probably won't push back on her brainwashed friend, more's the pity. then -- as i often do these days -- i related a recent episode of TWiV on which a virologist who has recovered from covid-19 said he'd been treated with hydroxychloroquine, and he recovered -- after experiencing some explosive diarrhea -- but was hesitant to link them causally, "because he's a scientist." mom chuckled.

fucking guiliani, man.

little oomph and i played "coronavirus testing and contact tracing" which mama found a bit morbid (the child is 5), but i'm game to run with the imaginative play and try to infuse the sensible nonpanic of not unduly censoring the scary thing. the child also reported spending a lot of time thinking about coronavirus like everybody else, and worrying that while we're all paying attention to that disease we'll fail to be attentive to the dangers of other diseases. both mother and i, separately, explained that those measures we're taking to stay safe from coronavirus are also keeping us safe from most other transmissible diseases. but it is true that if everybody in the hospital is focused on that one emergency maybe some of the other care we count on hospitals to perform will not be available or not be as good. so we were going to do our best to stay safe and healthy and not go to the hospital.

stay safe, y'all.

bang on the lies

on connie bruck's "alan dershowitz, devil's advocate" from the new yorker:

appreciate how bruck begins with dersh's commitment to lying --

“The rule of law requires that we distinguish between sins and crimes,” he said. “There’s no federal crime that says that it’s illegal to lie to the media.”

-- and visits his corollary to "...bang on the table" --

“If you don’t have the law or legal facts on your side, argue your case in the court of public opinion.”

-- before digging too far into his service to epstein and other monsters, the allegations against him, and providing him the opportunity to respond: this lawyer and accused rapist advocates lying to the media, and suggests doing it when you don't have the law or facts on your side; let's see what he has to say now.

really artful.

valdimir puddin's negative space

notes:
source foxnews: https://youtube.com/watch?v=tr5Og... (t=11:09:xx). file ends midsentence at 11:09:xx, pdf p.324. [and is no longer available].
also see: c-span. (t=13:39:xx) [could not get].

several readers skipped right over redactions, reading w/o comment from the word preceding the redaction through the word following it.
inexplicably, the reading of vol.1 ended at p.198, with 15 or so pages, several completely redacted, of declination decisions to go.

the report.

summary of manafort's DC sentencing memo

gist:

his crimes aren't so bad.
and he hardly did 'em.
and other people do 'em unpunished too.
and you'd never have noticed but for that other thing.
and you didn't charge any crimes for that other thing (proving his innocence of crimes involving that other thing)
so it's hardly even fair to punish him for crimes he did do.
and they're hardly crimes.
and he has pleaded guilty and it was accidental. and he has taken full responsibility.
but for the crimes he's a good guy: 13 pages of hagiography and he's old.
prison's tough on the elderly.
and gout.
and his reputation has been damaged.
and his money-laundering business has suffered.
and anyway he hardly did those technical crimes which aren't so bad anyway.
and he cooperated but for a couple lies and has taken full responsibility for these hardly-crimes.
and the lies only represent fleeting moments of 12 otherwise unabated hours of truthfulness.
there are some guidelines.
they don't help us unless you appreciate how these gossamer crimes evaporate when you look hard at 'em.
the other guys say he hasn't taken responsibility but that isn't fair.
and he shouldn't have to take responsibility.
and he has anyway, all the responsibility for those inadvertent technical hardly-crimes.
so you should go easy on him.
and he'll be punished for those other related crimes in that other jurisdiction, so.
hasn't he been punished enough already?
here follow 30 pages of testimonials from people who think poor ol p.j. is a good guy who likes beer.

memo.

know your enemy

There has been a lot of recent discussion concerning the secret negotiations of and procedural legerdemain in Congress concerning the so-called Trans-Pacific Partnership Treaty, an multipartite international investment treaty currently under negotiation among the United States, Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam.

Proponents say it will be good: Good for trade, good for the economy, good for all of us.

Detractors say it will be bad, by ceding to foreign investors (read: "transnational corporations") "our" sovereignty over our laws, regulations and public policy, municipal, state and national, granting "shadowy" tribunals the power to arbitrate where we understand our courts are chartered to adjudicate, and generally eroding rights and protections for persons, laborers, employees, and everyone but the masters of capital and minions.

As far as such assertions by advocates and opponents go, they're probably all correct. And they're all similarly worthless for their vagueness, claims to universality and general lack of context. And, anyway, no one can make credible or verifiable claims about contemplated provisions of the draft agreement because the drafts and negotiations are secret. Completely secret. Except for the occasional odd senator willing to submit his or her stylus and notebook, and representatives of our own favorite nominally-American transnational corporations, their executives, their lobbyists, their PACs, their chambers of commerce and their centers of excellence.

WikiLeaks has published several documents purporting to be draft chapters from the treaty. The chapter on investment caused substantial stir and widespread, although mostly insubstantial, discussion of the treaty's promised doom or benefit. Few of those discussing the treaty do so in such a way that their broad assertions concerning its impact carry the speaker's self-evident, responsible, immersion in the context and subject matter of international investment, and, particularly international investment dispute. Instead they offer generalizations of glowing platitude and ominous misfortune.

Context matters.

International investment treaty dispute arbitration is one prodigiously corpulent corpus of context, and, as such, difficult to meaningfully discuss in soundbytes, seventh-grade-reading-level public statements, and newsmagazine programs.

International investment disputes, under the ascendant liberalized international trade regime marked by international trade organizations, an increase in (or simply increased attention to) foreign direct investment activities and the proliferation of multilateral and bilateral investment treaties, are typically resolved through binding commercial arbitration between states and states, or multinational business enterprises and states, by tribunals selected by the parties, convened, according to the rules of a specified convention, to implement terms of a particular regional, multilateral or bilateral investment treaty with respect to a particular investment.

See? Within that context,

The advent of investment treaty arbitration stands out, not as the vanguard of a broad movement to protect individuals in international law, but as an anomalous and exceptionally potent system that protects one class of individuals by constraining the governments that continue to represent everyone else. 

is a pretty good soundbyte (from Gus Van Harten's 2007 Investment Treaty Arbitration and Public Law), though maybe still too long.

I am not an authority, but a dabbler, having had occasion some years ago to research and write about bilateral investment treaty minutia, which did require broad reading to spin up, discern authorities and standards, learn the context, and focus on the question at hand. I am probably more qualified to address the subject than I was to evaluate the warlike character of Stuxnet via the Schmitt Analysis, but only marginally so.

It just so happens that all of that reading concerned what we've been discussing generally as "Investor State Dispute Settlement," specifically standards employed by tribunals convened to arbitrate international investment disputes according to rules of the International Centre for Settlement of Investment Disputes, the United Nations Commission on International Trade Law, or similar conventions.

Today, DemocracyNow! aired Julian Assange and Amy Goodman -- both of whose voices I value -- talking about how the "secretive deal isn't about trade, but corporate control," a thesis with which I more or less agree. As with many things, Assange is worth hearing on this topic (him and Sen. Warren) for the deep engagement and broad contextual awareness his assertions clearly evince.

But he presented a scenario in which environmental and health regulation law and municipal development may be chilled by the prospect of a foreign investor suing the government for the loss of expected future profits: "This is not an actual loss that has been sustained, where there's desire to be compensated; this is a claim about the future."

Such suits are a real threat; the chilling effect is already manifest.

But this scenario is incomplete, and the quoted passage not entirely accurate, for, a foreign investor who has built a hospital already has realized a loss--was wooed and courted by the municipality in which the hospital was built specifically to make that investment in that municipality with both parties' mutual agreement that operation over a contemplated period of time would recover some reasonable return on the initial investment. The foreign investor has realized a loss that the agreement with the municipality specifically contemplates it recovering.

This is how natural resources of the commonweal are privitized. Also, it leads nicely to the omitted issue of the legitimate expectations of the investing party. [excerpt from 2009 memorandum follows]

As arbitral case law develops . . . some principles of construction and scrutiny are emerging to give contour to an investor’s legitimate expectations and a host state’s due process obligations. (See.)

As the tribunal in Tecnicas Medioambientales Tecmed, S.A. v. United Mexican States observed:

The foreign investor expects the host State to act in a consistent manner, free from ambiguity and totally transparently in its relations with the foreign investor, so that it may know beforehand any and all rules and regulations that will govern its investments, as well as the goals of the relevant policies and administrative practices or directives, to be able to plan its investment and comply with such regulations. . . The foreign investor also expects the host State to act consistently, i.e., without arbitrarily revoking any preexisting decisions or permits issued by the State that were relied upon by the investor. . . . The investor also expects the State to use the legal instruments that govern the actions of the investor or the investment in conformity with the function usually assigned to such instruments, and not to deprive the investor of its investment without the required compensation.

On the other hand, “in order for them to be protected," a foreign investor’s expectations  "must rise to the level of legitimacy in light of the circumstances.” For example, the political environment in the host State will be significant in determining the legitimate expectations of the investor: In the case of Lithuania’s transition from a Soviet State to a member of the European Union, “no expectation that the laws would remain unchanged was legitimate.”

[(not certain I'm happy merely replacing bluebook citations with suggestive links) end excerpt]

I really just wanted to add the fact of "legitimate expectations" to Assange's example. It doesn't add a lot, but, as one rich detail, stands for all the technicality and nuance omitted from every aspect of each clause of the secret provisions of the secret draft treaty that is described and discussed in our public discourse.

In actual fact, the municipality that invited the foreign investor to build the hospital simply would not build another hospital nearby; this, more than the scope of the potential award (which - don't misunderstand - might well be enormous), is the essence of the chilling effect. Also wanted to offer the prospect of the greater breadth and depth of issues implicated by the proposed treaty, and the general trend in which it is merely the most recent example. All the rest is establishing shot, background and tangent.

In my own view, the TPP is another instance in the continuing trend even further empowering transnational commercial entities over people, just like van Harten said, except I am also not certain that governments--at least my own state's government--actually represent the people and myself.

Beyond the dire promise of that trajectory, what is offensive about the TPP is the secrecy with which it is being drafted, and the essential vapidity of the public discourse.

It is worth noting that provisions of the published draft chapters of the secret treaty that I've read appeared to be standard, potentially even more protective of the sensitivity of legislators for "environmental, health, or other regulatory objectives" than those of many other investment treaties. Fairly standard . . . in context.

Separately, Dear Reader, I have taken the twitter; I tweet. It's exhausting for one already disinclined to chase after the topics of the daily news cycle. But that's where I've been being a gadfly, rather than a long-winded one over here, and where this year's flower pictures have been going. Will try to get some of them up here, too, before long.

failure to investigate also breaches the convention against torture

Should have posted this "Shadow Report to the United Nations Committee Against Torture on the Review of the Periodic Report of the United States of America" a month ago.

No doubt you are already familiar with the subject matter, and the long failure to investigate and prosecute those who made torture the policy of the United States, as is required of signatories to the UN Convention Against Torture, dear reader.

Here is some more: From the "Advocates for U.S. Torture Prosecutions," a project of Harvard Law's International Human Rights Clinic, comes this compelling, and thoroughly footnoted, piece of advocacy toward just that necessary end. Really thoroughly footnoted.

My favorite part:

[T]he attorneys who authored the legal memoranda authorizing the use of torture in the interrogation of detainees cannot claim reliance on their own legal advice. Moreover, in authorizing torture through distorted and clearly flawed interpretations of a State Party’s obligations under the Convention Against Torture, the issuing of the legal advice itself was a violation of the Convention. (emphasis mine).

The rest of the discussion within the Shadow Report is similarly potent.

Here's Murtaza Hussain from TheIntercept.

Also:

"The report describes the waterboarding program as 'breathtaking in scope,'" Tom gasped between stifled, shameful chortles.

shiverin' under the long, icy reach where law used to be

when, having read the entirety of the sentence beginning "It is safe to say that...," in a 2005 document stamped "SECRET//NOFORN//MR" and bearing instructions that it is not to be declassified for another sixteen years, i am at last confronted with the chilling effect of the icy reach of that most transparent administration ever: is it safe to say it, or is it secret, subject to national security censure (e.g., the headbag and gastric tube treatment)?

lets find out:

through an onion, darkly

i told you once about Gill and Ghafoor
who despaired of finding remedy in court.

well, five Michigan plaintiffs last week
filed for declaratory and injunctive relief.

fixing the whole constitution,
trying to catch an out-boud flight yeah.
pulling up a congressman's pants!

specifically, the plaintiffs request a declaratory judgment that the "policies, practices and customs" of the defendant agencies' and offices' coordinated watch list programs "violate the Fifth Amendment" and the Administrative Procedure Act, and an injunction requiring the defendant agencies and offices "to remedy the constitutional and statutory defects identified," remove plaintiffs from any list impeding free travel, and implement a legal mechanism for notice and opportunity for watchlisted individuals to contest. also attorney fees, costs, litigation expenses and such further "just and proper" relief as the court may be pleased to dispense.

which agencies and offices, you ask; why, the Attorney General of the United States, the Commissioner of CBP, the Administrator of TSA, and the Directors of FBI, TSC, NCC, DHS, and ICE.

sweet dreams.

(cf.)

on the practical preeminence of immanence and influence imputed

no US person
solely on first amendment
activities, such

as staging rallies,
writing critical essays,
expressing beliefs;

no US person 
solely on advocacy
of the use of force;

no US lawyer 
solely for representing
suspicious clients;

no US person
solely for being muslim
may be targeted,

but maybe in some
suggestive combination
of the foregoing

plus probable cause
of foreign pow'r influence
and dire immanence

alleged before the
FISA court official's sure
rubber stamp assent.


we are left, again, with questions and obfuscatory nonanswers by nominally responsible parties.

foremost in my mind, parsing the propaganda and ratiocination, are: how are "foreign power" and "immanence" defined these days? are they defined at all? i understand that the notion of immanence in the context of customary and traditional international law of war has proved somewhat pliable over the last fifteen or so years; is this the same notion of immanence? are anonymous, or wikileaks or the tor network foreign powers? are Al Haramain and CAIR foreign powers? how about The Guardian and FirstLook Media? or are foreign powers solely states, as seems to be the case in recent application of the aforementioned body of international law?

meanwhile, there's been a good deal of disturbing disclosure in the German press lately: see, e.g., spiegel, and spiegel and der erste.

and, it is interesting to note, Faisal Gill and Asim Ghafoor, two of the disclosed subjects of the disclosed surveillance, when asked whether these disclosures would lead them to sue the government, told Amy Goodman this morning that it is up to the Congress to exercise control because there are no judicial remedies available. Ghafoor would know.

doing nothing wrong, nay: doing right via dissent and resistance

Eben Moglen is a magnificent speaker well worth watching. Last autumn he offered Columbia Law School a series of lectures, Snowden and the Future, in four parts, what seems to be the full text of which was published Tuesday in the Tech section of The Guardian.com. Mr. Moglen and the Software Freedom Law Center have also made full video, audio and text available.

A bit from the Guardian that struck me:

When Snowden disclosed the existence of the NSA's Bullrun programme we learned that NSA had lied for years to the financiers who believe themselves entitled to the truth from the government they own. The NSA had . . . subverted technical standards, attempting to break the encryption that holds the global financial industry together. . . .

Part I: Westward the Course of Empire begins with more familiarity with the details of the decline of the Roman empire than I am afraid I have retained, or, indeed, was ever exposed to.

Edward Snowden committed espionage on behalf of the human race. Knowing the price, knowing the reason, knowing that it wouldn't be up to him whether sacrificing his life was worth it. So I would think that our most important effort, first, is to understand the message: to understand its context, to understand its purpose, to know its meaning, and to experience the consequences of having received the communication. Others will of course regard the first imperative as being to eliminate the message, and the messenger, and the meaning: to render everything as invisible as possible. Because invisibility is where listeners have to live in order to work. But I think we must let them go about that business. We must let them try to obliterate the message as best they can, and do our work, which is the work of understanding first.

This struck me because I have wished to interject something like this each time the water cooler is roiled with the artificial debate of partisans ranting past one another, or to challenge some mouthpiece of surveillance --who again and again deflect, asserting certain journalists' (and former agency insiders') characterizations of programs described by leaked documents are errant, and that we should address the real ongoing programs and view such documents with due regard for context -- to produce that context, forthrightly, together with sufficient evidence to support the veracity of such information proffered by parties who have squandered their credibility through the consistent disclosures of their consistent earlier lies. Mr. Hayden and his ilk cannot in honest debate defer open examination of the parameters of surveillance programs on grounds that we should all be able to talk with particularity about the same real programs and activities, while failing to disclose (and continuing to otherwise prevaricate and mischaracterize) such relevant facts concerning such programs as are within his cognizance. Until such a time, the documents sure appear to speak for themselves, and are, nevertheless, the best available information.

Watch here. Listen here.

Part II: Oh, Freedom considers  two constitutional traditions of resistance, arising out of the founding narrative of liberty and subsequent history of slavery leading eventually to the abolition of chattel slavery and the political and social enfranchisement of its former objects.

For analytical purposes let us take this word "privacy," that we are growing accustomed to using quite freely, and see what it really is. Privacy—as we use the word in our conversations now all around the world, and particularly when we talk about the net— really means three things. The first is secrecy, which our ability to keep messages "private," so that their content is known only to those who we intend to receive them. The second is anonymity, which is our ability to keep our messages—even when their content is open—obscure as to who has published them and who is receiving them. It is very important that anonymity is an interest we can have in both our publishing and our reading. The third is autonomy, which is our ability to make our life decisions free any force which has violated our secrecy or our anonymity. These three are the principle components of the mixture that we call "privacy". With respect to each, further consideration shows that it is a precondition to the order that we call "democracy", "ordered liberty", "self-government", to the particular scheme that we call in the United States "constitutional freedom."

Mr. Moglen also addresses two common responses to the scope of the revealed programs: the "it's hopeless" and the "if you're doing nothing wrong -" tropes, the latter of which he answers with

If we are not doing anything wrong. then we have a right to resist. If we are not doing anything wrong, then we have a right to do everything we can to maintain the traditional balance between us and power that is listening. We have a right to be obscure. We have a right to mumble. We have a right to speak languages they do not get. We have a right to meet when and where and how we please so as to evade the paddy rollers.

watch or here/listen

Part III: The Union, May it Be Preserved presents the present privacy crisis, "government abuse of the systems of surveillance and listening" deployed by "those who wish to earn off you" -- Google, Facebook, Yahoo! and the like -- and adopted by we the statistical datasets,

this form of pervasive spying on societies which has come into existence, results from a larger environmental and ecological crisis brought on by industrial overreaching. It is not the first, the last, or the most serious of the various forms of environmental crisis brought on in the last two centuries by industrial overreaching. Industrial overreaching has begun to modify the climate of the whole earth in unexpected and damaging ways. Against that enormity this is merely an ecological disaster threatening the survival of democracy. So we need to understand the ecological harm done underneath, before we can begin to restrict the listening of government to its appropriate sphere, and abate those violations of the constitution. . . .

With an ecological framework, he proposes an environmental law approach to questions of privacy in the, ahem, private sector. Also:

The anonymity of reading is the central, fundamental guarantor of freedom of the mind. Without anonymity in reading there is no freedom of the mind. Indeed, there is literally slavery.

watch/listen

Part IV: Freedom's Future

I haven't made it to the fourth part yet to poach passages. Not sure what will happen, but hopefully that sense of hope described in Part II will be transmitted. Also, it is certain to be as deep, informative and thoughtful.

watch/listen

great job! now, will no one rid me of this troublesome judicial review?

The holding in the opinion of the U.S. Court of Appeals for the Second Circuit, available here, is not quite so broad as the above exchange suggests, but it is pretty awesome. In part:

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. In La Raza, we explained that “[l]ike the deliberative process privilege, the attorney-client privilege may not be invoked to protect a document adopted as, or incorporated by reference into, an agency’s policy.” 411 F.3d at 360. Here, the Government has done so by publicly asserting that OLC advice “establishes the legal boundaries within which we can operate”; it  cannot invoke that relied-upon authority and then shield it from public view.” Brennan Center, 697 F.3d at 207-08. 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 opinion in whole has several notable features -- not least of which are the temporary redactions -- and rewards a close reading. Before we read the subject legal justification there is likely to be an appeal, and, as usual, a protracted wait for the subject document to be redacted.

Another toothsome tidbit, quoting an April 2012 address by then-Assistant to the President for Homeland Security and Counterterrorism, John O. Brennan, is this paradoxical assertion:

[I]n full accordance with the law, and in order to prevent terrorist attacks on the United States and to save American lives, the United States Government conducts drone strikes against specific al-Qaida terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones.

Which begs the question: how does the U.S. Government conduct drone strikes the rest of the time?

Democracy Now! coverage of the ruling, and interview with appellant ACLU's Hina Shamsi, is here.

how a few bad apples broke the camel's back

. . . a few bad apples, whose exceptional performance has been recognized and rewarded as they advanced in the organization, and now comprise our executive leadership.

--[Redacted], Inc., Annual Report, 2011

Gotta love a Senator's oratory at an inflection point of grave public significance (when there's a podium but no forum for Q and A).

Senator Feinstein, Chairman of the Intelligence Committee, who has appeared over most of the past year consistently carrying water for the NSA, insisting time and again, against all evidence, the views of her peers and constituents, and the explicit statements, in interviews and declassified opinions, of the Foreign Intelligence Surveillance Court's judges, that oversight -- specifically, her committee's oversight of intelligence activities reported to her committee by executives of those agencies whose activities her committee nominally oversees (just as in the case of the FISC) -- of intelligence activities is vibrant and effective, seems to have had enough. It looks like she's entertaining notions parallel to those FISC judges' assertions that oversight is laughably ineffective.

Now it is a constitutional crisis.

(As chair of the Intelligence Committee she has greater standing to articulate and assert the ongoing rampant and widespread constitutional crisis that until now she has called adequate oversight, than do most of we, the people, and most of our advocacy organizations, so often subject to surveillance and more).

In all seriousness, it is good to read the Senator's account, if not for the chilling tale and high dudgeon, then for the sake of comparison with the many pundits' soundbites and journalists' gists.

In fairness, she addresses certain specific efforts of specific CIA personnel to mislead, undermine and intimidate committee staff investigating the CIA's Detention and Interrogation Program, rather than those many known and bemoaned surveillances of normal folk by another agency, but in doing so she reveals the pattern of behavior of a thoroughly corrupt organization, breaking laws today in a continuing effort to never be accountable for some of its torture and disappearance programs undertaken a decade or more ago.

She has not spoken of other agencies.

I'm doing that, looking at the institutional disregard for rules set into motion by the executive leadership thirteen years ago (it is not clear to this author that current leadership are significantly nobler, they just didn't arrive with the surplus, the agenda and the playbook), and the principle of management whereby the ethos of an organization flows from the top: The current executives of all agencies thrived and excelled as the Executive department's abuses and unaccountability gained momentum, and were propelled to the top of their uniquely sensitive, secretive and powerful organizations under those conditions, as those organizations enacted programs skirting laws or, later requiring laws to be rewritten. In many cases the very infrastructure of the agencies was specifically reorganized to better fit the views and designs of unaccountable leadership. Now, they are relied upon to brief the qualified senators and judges concerning intelligence activities, even when they make assertions concerning how, previously, they had misled. (It is not clear to this author that the trajectory for success in national politics, say, Congress, is any less fraught with fostering festering corruption. . . hence the epigraph.)

And if the fruit of the tree is rotten . . .

Anyway, if one Senator could change the tide, it is the Chairman of the Senate Intelligence Committee turning on a dime. I briefly looked for opportunistic haiku, but the pithy bits were far too long and I quickly gave up to be a better audience. A bit of pith and vinegar:

This is important: Some of these important parts [of the Senate Intelligence Committee study of CIA Detention and Interrogation Program] that that CIA now disputes in our committee study are clearly acknowledged in the CIA's own Internal Panetta Review. . . . 

If the Senate can declassify this report, we will be able to ensure that an un-American, brutal program of detention and interrogation will never again be considered or permitted.

How Congress responds and how this is resolved will show whether the Intelligence Committee can be effective in monitoring and investigating our nation's intelligence activities, or whether our work can be thwarted by those we oversee.

sometimes extrajudicial things are just not justiciable

since yesterday's revelations about intelligence agencies' contemplated discrediting of individuals by making subtle alterations to their profiles, walls and blogs, i've done little else than reread everything i've ever posted here to make sure it is an accurate reflection of the thing i seem to recall having posted here: Dear Reader, i can't tell.

i do like the idea of these intelligence agencies trying to undermine the reputation of one oomph cavilrest, mostly unread antisocial quietly grumbling dissident poet ranter gadfly and wordplayer, by making subtle alterations to some of  his destructive writing exercises; i suspect that sort of involvement might be exactly in accord with the ethos of (some) destructive writing.

anyway, i'm still reading everything and trying to be sure it's what i wrote. talk about rectal introspection.

but i did catch this chilling item:

the claim of Mr. Khan that united kingdom participation in drone strike programs in waziristan was unlawful for likely encouraging or assisting murder was declared not justiciable: despite persuasive assertions concerning the relevant law

"a finding by our court that the notional UK operator of a drone bomb which caused a death was guilty of murder would inevitably be understood (and rightly understood) by the US as a condemnation of the US."

"What matters," Lord Dyson concluded, "is that the findings would be understood by the US authorities as critical of them." 

[redirected "Mr. Khan" link to profile of claimant Noor Khan on Reprieve's website, from link to passing reference to that case in Intercept story on the abduction of Kareem Khan. - ed.]

there is no intelligence agency but the intelligence agency

Did you hear about the Top Secret Memorandum of Understanding between the NSA and the Israeli SIGINT National Unit, dating from some unspecified time after March 2009?

It memorializes an agreement "pertaining to the protection of U.S. Persons," and purports to prescribe "procedures and responsibilities for ensuring that ISNU handling of materials provided by NSA . . . is consistent with the requirements placed upon the NSA by U.S. law and Executive Order to establish safeguards protecting the rights of U.S. persons under the Fourth Amendment to the United States Constitution," all without binding the parties or creating "any legally enforceable rights." (... because an agreement to perform unlawful acts cannot be enforced at law)

What materials provided by NSA? Why, "SIGINT raw traffic," comprising any signals intelligence acquired "before the information has been evaluated for foreign intelligence and minimized." Minimization, you'll recall, is commonly understood to describe those sets of processes by which U.S. person information is excluded subject to those five notorious exceptions, of which the only one noted in this memo is relevance to foreign intelligence.

NSA agrees to provide "review and training" of such procedures on an annual basis and "regularly" review a sample of that transferred SIGINT "to validate the absence of U.S. Persons identities," in addition to the bulk transfer of the raw SIGINT which occasions the need for procedures.

The Israeli unit agrees to not intentionally target U.S. person communications; not intentionally use personally identifiable information of U.S. persons included in the raw SIGINT "to acquire non-public communications;" limit access to the material; disseminate information concerning U.S. persons only in such a way as to shield U.S. persons' personally identifiable information; destroy U.S. person information after one year; immediately destroy U.S. Government officials' communications within the raw SIGINT; refer all requests for access to the NSA; and to not use in intelligence activities "against the U.S." any information concerning U.S. officials included in the SIGINT transferred from the NSA.

What are the procedures ensuring that the materials will be handled in a manner consistent with U.S. law, Executive Order and the Constitution?

They are clearly specified: ISNU must immediately inform the NSA when U.S. person identities are found in the materials; provide a quarterly written report "detailing the circumstances of those instances" (a right tasty FOIA target there!); immediately inform the NSA when a "selector believed to belong to a valid foreign target is subsequently found to belong to a U.S. person," "detask" any such selector and destroy intelligence collected using such selectors.

This is more or less analogous to those procedures by which U.S. agencies are understood to identify and exclude "inadvertently acquired" U.S. person information. (It is charming to see a spy agency of one nation -- itself in the midst of deliberately misleading its constituents about its activities -- trust a spy agency of another nation not to make use of information freely being provided by the spy agency of the first part.)

So, Dear Reader, you may ask, what then is the problem with all this?

1. It dates from after February 2009, when NSA director Alexander acknowledged to the Foreign Intelligence Surveillance Court that the NSA had misled that court concerning acquisition of bulk telephone metadata, as noted in a 2009 FISC opinion by Judge Reggie Walton -- (recently declassified pursuant to federal court order and available at the IC on the Record, the intelligence community Tumblr page) -- in which the Judge despaired of the viability of such programs.

2. It dates from within the span during which, in a 2011 FISC opinion, Judge Bates noted a pattern of "substantial misrepresentation," "flawed depiction," and "repeated inaccurate statements" concerning "the scope of a major collection program."

3. Therefore the NSA had knowledge that its collection activities did not pass muster at least as early as the first FISC opinion saying so -- if that knowledge cannot be imputed to the Agency as early as its first determination to mislead that court, as it clearly might be.

4. The provision of bulk collected raw SIGINT from NSA to ISNU commenced prior to the execution of this memorandum of understanding.

5. At the time of this MOU the NSA knew that its authorizations were based on fraudulent representations to the oversight court; that its collections were beyond the scope of its authorizations; and that its collections contained U.S. person communications.

6. The statutes, Executive Orders and Constitution do not bind Israel, and, anyway, can provide no additional protection for information that is collected and shared in contravention of those same authorities: Provision of information cannot be consistent with rules barring its collection.

When approached for comment concerning the Guardian's planned story, that agency issued a statement including the claim "Whenever we share intelligence information, we comply with all applicable rules," which might be true in a highly technical sense, insofar as the NSA does not believe any rules are applicable to the NSA.

Just like its parent organization, the United States, with respect to international law.

So, to sum up:

The NSA complies with all applicable laws because no laws apply to the NSA, just as it is not Mr. Obama's credibility on the line because Mr. Obama has none. Thanks for playing.

make war crimes tribunals, not war

With respect to whose credibility may or may not be on the line, neither the Charter of the United Nations, the Geneva Protocol, nor the Chemical Weapons Convention seems to authorize a signatory to bombard another nation not immediately threatening it.

I don't see anybody else standing at podium upon podium advocating that course.



The Geneva Protocol (1925):

That the High Contracting Parties, so far as they are not already Parties to Treaties prohibiting such use, accept this prohibition (of the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices), agree to extend this prohibition to the use of bacteriological methods of warfare and agree to be bound as between themselves according to the terms of this declaration. 

Chemical Weapons Convention (1993), Article I:

Each State Party to this Convention undertakes never under any circumstances:
(a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone;
(b) To use chemical weapons;
(c) To engage in any military preparations to use chemical weapons;
(d) To assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention. 

Chemical Weapons Convention, Article XII:

3. In cases where serious damage to the object and purpose of this Convention may result from activities prohibited under this Convention, in particular by Article I, the Conference may recommend collective measures to States Parties in conformity with international law.
4. The Conference shall, in cases of particular gravity, bring the issue, including relevant information and conclusions, to the attention of the United Nations General Assembly and the United Nations Security Council.

The Charter of the United Nations, Article 2(4):

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. 

The Charter of the United Nations, Article 2(7):

Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.

IO GIGO dido

quarterly IO
NSAW SID
report summary

Some authorities under which surveillance and oversight cited in leaked linked report are conducted:

FISA
Fisa Amendments 702, 704, 705(b)
EO 12333
Dod Reg 5240.1-R
NSA/CSS Policy 1-23
USSID SP0018
related policies and regulations.

Global System for
Mobile Communications
roamer incidents

growth attributed
to spike in Chinese travel
for lunar new year

roamers: there was no
previous indications
of the planned travel

incidents could be
reduced if analysts had
more target info

unconsenting US persons minimized!

So, maybe you heard that the Electronic Frontier Foundation via FOIA obtained a copy of Judge Bates' October 3, 2011 Memorandum Opinion and Orders from the Foreign Intelligence Surveillance Court.

I must first, one professional to another, recognize and salute some very fine and apparently thorough redacts-personship: Nicely redacted yo'!

On a (sporadically) careful reading, some stuff remains unredacted.

But first, the haiku:

the court's review is
complicated by recent
state revelations

upstream collection
may acquire just a single
message or contain

multiple discrete
communications of no
collection target

fundamentally
shifting the Court's view of the
scope of collection

must reexamine
presumptions underlying
prior approvals

Some notes and reactions:

toward a more panopticonscientious course

Jacob Applebaum, of reported Wikileaks and TOR fame or notoriety and advocacy of open development, gave a hell of an address about the surveillance state and "preference-based utilitarianism" at a CCC conference last winter, that cannot be recommended too strongly:



At the same conference, noted and notorious whistleblowers Jesselyn Radack, Thomas Drake, and William Binney serially narrate their ordeals and ideals after exposing secret government power, Enemies of the State:



Hmm. This one seems to be the official YouTube posting for the event from CCCen, promising an entire additional hour, which begins circa 1:23:00 with panel responses to audience questions and comments, which could easily fill that span.

the last wheeze of an unreasonable expectation of privacy dying

Some time ago I mused at length concerning how, to me, it was not obvious, as Jonathan Landay had said to Amy Goodman, what one can do to try to protect oneself from communications interception. (I have spent much of the intervening time wondering how "obvious" a secure encryption setup and TOR deployment are, and suspect the technical proficiency required to implement either weighs against obviousness.)

The New York Times this week ran the harrowing and exhilarating story of how documentarian Laura Poitras, journalist Glenn Greenwald and whistleblower Edward Snowden all got together. Among its notable points is the description of Ms. Poitras' acumen with communications security -- developed over her many years of harassment and scrutiny at border crossings -- which, while sufficiently advanced to receive and authenticate encrypted communications, wasn't entirely to the would-be leaker's satisfaction when he approached her.

She . . . sent her public key. . . . The stranger responded with instructions for creating an even more secure system to protect their exchanges [instructing her] to select long pass phrases that could withstand a brute-force attack by networked computers [by an] "adversary . . . capable of a trillion guesses a second." . . . Seconds after she decrypted and read the e-mail, Poitras disconnected from the Internet and removed the message from her computer.

It is worth reading, because, prior to contact with Snowden, by necessity, Poitras already operated at a pretty extreme level of communications and information security: minimizing cell phone use, masking her browsing activity, learning to use encryption, leaving copies of film in safety deposit boxes in her many terminus cities -- a level of precautionary effort that almost any reasonable American would view as extraordinary, and as requiring an extraordinary level of proficiency with computers and networks. This heightened level of operational security, and the proficiency it implies, are what first enabled Snowden to reach out. And when he did, his first communications were instructions to implement even greater security.

It is also worth reading for other aspects of the, as I said, exhilarating narrative. In an additional wrinkle, you may have seen the coverage of Greenwald's partner's detention, while changing planes at Heathrow, for the maximum time permitted under the UK antiterror laws nominally permitting such detentions for our safety.

The Freedom of the Press Foundation, apparently agreeing that encryption and TOR might not be obvious to the socially networked masses of credulous WYSIWYG clickers, has published "Encryption Works: How to Protect Your Privacy in the Age of NSA Surveillance," a primer on available tools to that end.

I read it it. It was good. It was informative. It had useful links to the described tools and their support communities. Although I'm skeptical about the absolute security of this machine, I have nevertheless downloaded and begun trying to understand how to use the GPG software. It, and its documentation, do, however, assume that I understand things that I do not understand. I do not have anyone in particular with whom to correspond encryptedly anyway: When our freedom of expression was chilled we stopped writing email; or was it when we opened social networking sites, or grew old?

Anyway, it basically says use encryption and TOR on Linux. Each has its technical hurdles, and TOR has some inherent latency issues so long as it is not widely adopted, some developing liability issues for certain configurations in certain jurisdictions, and has recently had some security issues as well.

Gawker also published a guide, "How to Leak to Gawker Without (Hopefully) Getting Caught," which has some good tips for information security conscientiousness while on the Internet, contemplating or cultivating anonymity.

In other news, the Guardian reported that Google filings, in a pending suit over Google's practice of scanning the content of email sent to Gmail users from other domains, assert that Gmail users have no "reasonable expectation" of privacy in their Gmail traffic. This is true. It pretty much always has been for networked activities. Although, to be fair, the case, reportedly brought by parties who corresponded with Gmail users, not by Gmail users themselves, is interesting, and the Google spokespersons' glib, fallacious similitudes maybe don't help the corporation look too good here.

That outraged shriek is a bunch of privacy advocates' unreasonable expectation of privacy dying.

As one's "reasonable expectation of privacy" is the basis for the standard judicial inquiry into privacy issues, it is important to understand this. You can have a reasonable expectation of privacy in Gmail (I learn from the above-linked FPF encryption primer) only if you use an email client to draft and encrypt your message, and only then transmit it through the Gmail service (and your implementation and your correspondents' implementations are secure).

Except: Do you have a reasonable expectation of privacy in encrypted transmissions when now-publicly-disclosed documents clearly indicate that procedures, adopted to minimize storage of data concerning US Persons "inadvertently acquired," expressly direct that those enciphered be retained for cryptanalysis?

Isn't committing a communication to encryption then ensuring that the best cryptanalysts available to the U.S. Government will have a go at it, if only for practice, or training purposes?

The reasonableness of an expectation of privacy in such circumstances then would tend to decrease over time by some function of the complexity of the particular cipher, the processing power available for the brute force attack, and a sense of the throughput and the volume in the queue.

So, encrypting securely per the best advice of the Freedom of the Press Foundation, and assuming that all transmissions are, in fact, collected, and that all those encrypted are retained for analysis, and are so analyzed, maybe our best bet is to create such a volume of inane and harmless -- but securely encrypted -- traffic that the queue will be prohibitively long for available resources.

All of this is far beyond obvious, and calls for some serious grounding in a variety of fields. As she worked with Greenwald on Snowden's material, Poitras emerged as an operational security mastermind: "In addition to encrypting any sensitive e-mails, she began using different computers for editing film, for communicating and for reading sensitive documents (the one for sensitive documents is air-gapped, meaning it has never been connected to the Internet)."

Finally, whereas Google may have the power to send you advertising based on the content of your correspondence on the fly, and the NSA may have filled the wastes of the West with banks and banks of processors crunching away at my encrypted love poems to Jonathan Landay and Amy Goodman, U.S. District Judge Reggie B. Walton, the chief judge of the Foreign Intelligence Surveillance Court, told the Washington Post this week that the court lacks the capacity to verify information it is provided or enforce compliance with its rulings. But Mr. Obama knows better.

a reasonable expectation of violent death at the end of due process

The other day, pursuant to Democracy's Now's coverage of the present administration's "Insider Threat" initiative -- which, if you haven't heard, is a sort of Operation-Tips-(remember Operation Tips?)-style program imposing duties on government employees to observe and report on their coworkers' apparent level of happy fealty to the regime and its mission (you know, to prevent "He was just a quiet guy working in the cubicle next door; kept to himself, seemed competent and polite. No one could have guessed that he'd just crack one day and BETRAY AMERICA!!!1!"), forming ranks, as it were, in the nascent War on Leaky Whistles -- McClatchy's senior reporter on the intelligence/national security beat, Jonathan Landay, remarked that he has taken "extreme precautions" vis-à-vis interception and use of his electronic communications as a means to expose or intimidate sources for some years now. "I'm not going to go into exactly what I do. I think it's obvious what you can do to try and protect yourself."

The program ended almost immediately thereafter, so Amy Goodman did not have the opportunity to inform him that, no, Jonathan Landay, to most of the audience, who are not already thoroughly steeped in intelligence matters, national security, and communications anonymity protocols by dint of their careers; no, in light of the collection of all metadata, the complicity (or, statutorily-mandated vulnerability) of every private telecom brand, the automatic storage of all things encrypted, the privacy-right-vitiating third parties we've permitted to become the intermediaries of nearly all communication, the global positioning (and otherwise broadcasting) chips we carry around with us, the government hacking of journalists' communications, the impotence of the courts, the outright abdication of the congress, a spectrum full of "journalists" howling for the taste of the scandalous, treasonous blood of one of their own, and the unending tapestry of oversights in oversight; under the droning, hovering threat of the fiery justice which due process of law accords Americans deemed enemy of the state (not to mention countless others -- call them Unamericans -- not entitled to such discerning treatment); no, Jonathan Landay, it is not obvious what one can do to try to protect oneself.

Is there a class on that at journalism school?

I, for one, cannot imagine how I might go about trying anonymously to get in touch with, say, Jonathan Landay, Jeremy Scahill, Glenn Greenwald, Matt Taibbi, Democracy Now, or Wikileaks, in the case that my whistle weren't holding water and I didn't want The Man to know. It might involve a visit to the library . . . or maybe a different library than that one I would refer to using the specific article (although, on reflection, I would likely refer to any one other library also using that specific article). Or the United States Postal Service, which would still carry letters along with that bundle of advertising if there were any letters. Come to think of it, I believe that the reasonable expectation of privacy does, still, inhere in the paper and ink communication sealed in an envelope and sent via the stewardship of that august organization (but, w.r.t. analogous "metadata", see -ed.), even as it has faded to phantasm near everywhere else (and believing in phantasms is, obviously, not "reasonable," . . . Ergo. . . )! But for how long? Maybe Goodman, Landay and Greenwald would deign to look into that, and confirm. All of you would-be leakers: Don't drop that sweaty envelope into the mail room of the building where you're working, and stop exhibiting critical thought, conscience and initiative where your friends, family, coworkers, and familiar strangers can see you.

In other news, the Federal Bureau of Prisons denied an application for the compassionate release from prison of former civil rights attorney Lynne Stewart for treatment of her metastatic stage-IV cancer because her "health is improving." So, I guess they're curing cancer in the federal pen, these days. Glory.