Show Me the Money

NSA chief Gen. Keith Alexander has claimed that the NSA’s surveillance program(s) have helped prevent “potential terrorist events” over 50 times since 9/11.

That’s great. All you have to do now, General Alexander, is point us in the direction of the publicly filed indictments (even if the indictment is sealed, you can still give us a case number) showing where these fifty plots became the subject of the U.S. judicial system.

If you don’t have approximately 50 indictments or criminal informations filed, then you’re lying.

The numbers don’t have to be exact because often federal indictments name more than one individual. But if they can’t point out the case numbers, which is a very easy thing to do, I’m sorry, the General is blowing smoke.

Bank Robber in South Florida makes NSA Prism Request

This is not the first time a request like this has been made. In the Noriega case, the attorney for one of the co-accused pilots requested copies of telephone conversations intercepted by the NSA at their secret facility in Panama called “The Tunnel.” The Government went ballistic and tried to have the defense attorney arrested–somehow he had obtained a copy of a map showing the existence and location of the facility. The Government merely denied that it had such records but quickly made a princely deal with the lawyer which ended up excluding the pilot from the case with a sentence of less than a year.

The other issue that bothers me with respect to the defense lawyer’s tactic here is that it does not appear he has complied with the Classified Information Procedures Act. Since the request was made in the middle of trial, perhaps the judge waived these, but failure to comply would be another way to get around the disclosure requirement.

Finally, line U.S. Attorneys really have no knowledge of these matters–Main Justice flies in CIPA specialists to assist whenever there is classified information involved in a federal criminal trial.

NSA Disclosures

Judge Vinson’s order requiring Verizon to turn over electronic metadata (not unlike the old law enforcement technique of recording mail covers, which required a warrant) was leaked and ignited a firestorm. A few observations:

1. No one trusts the American mainstream media anymore. When the Washington Post was offered the leak, they went to the Government to ask if it was OK to publish the information. I cannot imagine Ben Bradlee doing the same. Bradley Manning only turned to Wikileaks after the New York Times couldn’t be bothered. It took a British newspaper to publish this crucial news.

2. Where is the Church Commission when we need it?

3. James Clapper, Director of National Intelligence, lied before Congress. But I’m not holding my breath for a perjury indictment. He also claimed that releasing the Vinson order, classified until 2038, would irreparably damage national security. He then declassified other documents relating to the program. If there was so much damage, why the declassification? The answer is simple: there wasn’t any damage in the first place. He then declared that, despite the PRISM program, the U.S. did not collect evidence on “millions of Americans.” The next day the Guardian published information about yet another NSA program that did just that, called Boundless Informant. Oops.

4. The predictable attacks against the source, Edward Snowden, are a pathetic attempt to divert attention from this massive spying effort. The U.S. mistreatment of Bradley Manning (as determined by the United Nations and the courts) will hamper any extradition effort.

5. I know a certain person who for a while worked on Saudi Arabia’s nuclear program. Has he been contacted by any of our friends in the intelligence community? Of course not. Maybe they’re too buy listening to phone sex calls: http://abcnews.go.com/print?id=5987804.

6. It is interesting hearing the pundits claim they know what China will or will not do. They are clueless. China has already reaped rich rewards because of the disclosure: the U.S. effort to get them to stop their cyberwarfare efforts are dead in the water.

7. Google, Yahoo, Apple and anyone else who runs a cloud service in the U.S. will lose foreign business. All of it. There will be a race to locate new companies in Europe to service these customers.

8. In the Noriega and one other CIPA case, I refused to accept a security clearance. Not doing so would give me much more latitude in defending my clients. All the other lawyers in the cases rushed to accept the government’s offer of clearances and so were hampered in their defense.

9. The Government insists that the court-order justifying the PRISM program must be kept secret. This is noxious.

Government announces Sealed Indictment against Julian Assange

I don’t know what could be more obvious. This is from the transcript of the morning session, Monday, June 3:

“In the same timeframe, Your Honor, the evidence will show that PFC Manning, with the help of what the evidence will show to be Julian Assange, attempted to devise a way to browse the SIPRNET anonymously.”

Julien was well-advised to seek asylum. But let’s keep in mind that legally there is no difference between Wikileaks and the New York Times.

Interestingly enough, there was no room made for bloggers and others outside the main stream media to report the Manning trial. Such reporters are permitted to attend as members of the public.

Truth of the Matter Asserted

In the Bradley Manning case, the government is trying to submit a snapshot from the Wayback machine showing an archive of a Wikileaks page showing Wikileaks “Ten Most Wanted” documents. The general rule of Federal Evidence is that a writing is inadmissible because it is hearsay, that is, it is an out of court statement submitted for the truth of the matter asserted. The reason is because it is not subject to cross-examination.

There are exceptions. Ancient documents, such as those at least twenty years old, may be admitted. Other documents, such as a past recollection recorded, may be used under certain circumstances. Here the Government wishes to prove that Manning was acting under Wikileaks’ (and really Julian Assange) direction. The problem is that Wikileaks has not admitted this. So how to prove it? Apparently there is no longer a Wikileaks web page listing the “Ten Most Wanted” documents. So the Government is relying on the Wayback Machine. I do not know how accurate the Wayback Machine is. Perhaps it is very accurate. But you should nevertheless have some kind of authentication of that Wikileaks file which is found on the Wayback Machine’s server. Rather than doing this, the Government is going to use a witness who will tell the Court what the Wayback Machine is and how he downloaded a file from their website. To me, this seems inadequate. How do we know that the Wayback Machine is complete?

Second of all, how do we know that the “Ten Most Wanted” document is an accurate statement of Wikileaks’ policy? Given the dissension within Wikileaks at the time, this may or may not be true. You would normally need a Wikileaks records custodian to state whether the document was in fact, an official record of Wikileaks. Otherwise, it might merely be an employee’s musings. It might be, of course, exactly what the Government says that it is, but this is not proven by downloading from the Wayback Machine.

In the Manning trial today, the Government seems to fail to recognize this distinction. They are not introducing a document for to show the effect it had on Manning–because in that case a picture of a unicorn might well have had an effect on Manning, but that picture is not an effort to show that unicorns exist–but for the truth of the matter asserted in the document, i.e, that Wikileaks wanted these particular documents.

Here is the transcript. When the Government prosecutor says, “for hearsay purposes” obviously this is a mistake. He must mean “is not hearsay” but that’s my guess. The only way to be sure–and that is why we have trials–is to ask him.

“So it is authentic or the United Statesm will be able to show it’s authentic and defense will be able to object and we’ll be able to litigate this issue, but we do have a good faith basis to believe that it is what it purports to be and it is otherwise admissible. And we believe we would not be offering it for hearsay purposes, but it’s the effect on why and what drove PFC Manning to do the searches he did, which we do have forensics for.”

So there was no knife after all

Well, well–so there was no knife after all.
In reporting the death of Ibrahim Todashev in Orlando, the AP and others said that following an interrogation, Todashev lunged at an agent with a knife and so the agent used deadly force to protect himself.
Now the Government–on background, and on an unattributed basis only–admits that there was no knife, but that the victim turned over a table and attacked the agents with an iron pole.
There was more than one agent.
The victim’s family says he was on crutches.
I’m on crutches. I can barely get out of bed, never mind start swinging poles around.
Wny didn’t the agents secure the area and the suspect before the interrogation?
Conduct a “protective sweep” for weapons (such as metal poles)?
Law enforcement agents in the U.S. are most often highly trained professionals. But when it comes to anti-terrorism work, we seem not to have gotten the memo.
We get rid of one of our best generals, Petraeus, for having an affair.
President Eisenhower said that General Patton made a mistake (striking a soldier) in WWII, but he was a good general and he needed him.
Instead, Petraeus gets the boot.
And now this.
Not getting the story straight has damaged the image and reputation of the United States around the world.
We don’t need this. It reeks of amateurism and cover up.

Gaming Obamacare

It took just a little while for the new system to be gamed. The idea was that employers would be obligated to provide health care for their employees, and if they did not do so, they would have to pay a tax (call it what you will, but it is a tax) of $2000 per employee. The idea is that employers that did not offer health benefits to employees would begin buying policies and that with more employees in the healthcare pool, benefits and more generous packages would be made available.

Instead, employers and insurance companies have teamed up to create bare-bones healthcare policies which are just enough to get by the tax but not enough to constitute real health care. The result of this will be a new class of underinsured. Being underinsured is just as bad as not having insurance at all. The only solution is a state-run universal system along the lines of Canada or Massachusetts if you are a little xenophobic.

Remember the All-Savers certificate? This was a plan to help stop inflation. It didn’t work.

It looks like the half-measure health program won’t work either.

A Saudi Lawsuit in the UK

“Each side maintains that the other is lying about almost everything.”

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