Of Constitutional Concern

Through a vote yesterday, President Trump has been formally impeached by the U.S. House of Representatives.  The matter now moves to the U.S. Senate.

I’ll leave the impeachment proceedings to the talking heads — for now at least.  Today I’d like to focus, instead, on another area of constitutional concern that has been lost in the constant drumbeat of news on impeachment.  I’m speaking of an extraordinary order issued by the FISA Court earlier this week, in the wake of the recent Inspector General’s report on the conduct of the FBI and the Department of Justice in receiving authorization to conduct surveillance.  I’ve linked to the text of the Order above.

fb-seal-headquartersThe FISA court gets its name from the Foreign Intelligence Surveillance Act, the statute which created the Court.  FISA requires the government to apply for, and receive authorization from, the FISA Court before it can engage in electronic surveillance.  The applications are to be made in writing, upon oath or affirmation, by a federal officer from the agency, such as the FBI, that seeks to conduct the surveillance.  The FISA Court — consisting of judges appointed by both Democratic and Republican administrations — is then supposed to review the applications to decide whether they establish probable cause that the proposed surveillance target is a “foreign power” or an “agent of a foreign power” within the meaning of FISA.

This process is critical because — as the FISA Court’s Order issued this week notes — it was designed to allow the FISA Court to provide a check on executive branch power to conduct surveillance and thereby protect the Fourth Amendment rights of American citizens against unlawful search and seizure.  To allow the Court to do that job, FISA imposes a heightened duty of candor upon the federal agents and agencies in their applications to the Court.  The FISA Court considers candor to be “fundamental” to its effective operations.

The Order issued this week makes it clear that the FBI, in seeking the FISA Court’s approval of the surveillance order that was discussed in the Inspector General’s report, did not meet its duty of candor — not by a long shot.  To the contrary, the Court notes that the Inspector General’s report “documents troubling instances” in which FBI personnel provided information that was “unsupported or contradicted by information in their possession” and “withheld . . . information in their possession which was detrimental to their case for believing that [Carter] Page was acting as an agent of a foreign power.”

In addition, the Order notes that an attorney for the FBI engaged in conduct that “apparently was intended to deceive the FBI agent who ultimately swore to the facts in that application about whether Mr. Page had been a source of another government agency.”  The Court believes that the conduct of the attorney gives rise to “serious concerns about the accuracy and completeness of the information provided to the [FISA Court] in any matter (emphasis added)” in which the attorney was involved.

The Order adds:  “The FBI’s handling of the Carter Page applications, as portrayed in the OIG report, was antithetical to the heightened duty of candor described above. The frequency with which representations made by FBI personnel turned out to be unsupported or contradicted by information in their possession, and with which they withheld information detrimental to their case, calls into question whether information contained in other FBI applications is reliable. The FISC expects the government to provide complete and accurate information in every filing with the Court. Without it, the FISC cannot properly ensure that the government conducts electronic surveillance for foreign intelligence purposes only when there is a sufficient factual basis.”

The FISA Court’s Order concludes by ordering the FBI to provide a sworn written submission identifying what it has done, and what it will do, to ensure that the statements of facts in each FBI application accurately and completely set forth the material information in the possession of the FBI.  It will be interesting to see how the FBI responds.

In today’s world, there’s often argument about whether the news that is reported, and the characterization of events that is conveyed, is slanted or biased or accurate.  The FISA Court’s Order — which is only four pages long, and can be read and understood by any educated American — allows us to go to the source and see how a Court that is composed of judges with lifetime tenure who were appointed by both Republicans and Democrats is reacting to a detailed report on serious misconduct by the FBI.

The Fourth Amendment is there to protect all of us — Democrat, Republican, or Independent, liberal or conservative.  If the FBI is willing to distort, deceive, and misrepresent to pursue an agenda, that’s a concern for everyone.  We should all be grateful to the FISA Court for putting aside politics, recognizing that the ends don’t justify the means, and holding the FBI to account.

Federal Bureau Of Incompetence

In the wake of the latest awful school shooting, in which 17 students and teachers were killed in Florida and another 15 people were injured, there has been a lot of talk about guns and gun control.  That debate is entirely warranted, but I hope that there is also room for broad discussion about the performance of law enforcement agencies — from the FBI on down.

Last month, the FBI received a specific, credible warning about the accused shooter, Nikolas Cruz.  A person close to Cruz contacted the FBI’s Public Access Line on January 5 and described Cruz’s gun ownership, desire to kill others, erratic behavior and disturbing social media posts.  The FBI acknowledged that it received the tip — but did nothing, in violation of its own internal rules.  In a statement, the Bureau said:  “Under established protocols, the information provided by the caller should have been assessed as a potential threat to life. The information then should have been forwarded to the FBI Miami Field Office, where appropriate investigative steps would have been taken.”

Nikolas-Cruz-919429And it certainly appears that, if somebody from the FBI had actually looked into the tip, they would have found a lot of very disturbing information about Cruz, from troubles in school and a recommendation that a “threat assessment” be performed on Cruz, to a self-mutilation post and other troubling activities on social media and a comment on a blog about being a “professional school shooter,” to multiple calls about Cruz and his erratic behavior to the local sheriff’s office.  It’s hard not to draw the conclusion that, if somebody had just followed up on the tip, the massacre might have been avoided.

A statement from Christopher Wray, the Director of the FBI, about the FBI’s failure to act said:  “We are still investigating the facts. I am committed to getting to the bottom of what happened in this particular matter, as well as reviewing our processes for responding to information that we receive from the public.” He also said:  “It’s up to all Americans to be vigilant, and when members of the public contact us with concerns, we must act properly and quickly.”  But in this instance, Americans were vigilant and did report on concerns arising from disturbing behavior — and the FBI totally dropped the ball.

According to its website, about 35,000 people work for the FBI.  The Agency’s annual budget is more than $8 billion.  In short, the FBI has a lot of resources.  Given the number of mass shootings we’ve seen in this country, in schools and otherwise, it’s unfathomable that a credible tip to the FBI about a potential mass killer would be ignored.  If the FBI doesn’t follow up on such tips, what in the world is it doing?  And while it’s nice to know that FBI Director Wray is going to investigate the Bureau’s failure to investigate the tip about Nikolas Cruz, we might want to make sure that the FBI’s conduct is investigated by people who won’t drop the ball this time.

The Comey Canning

As Forrest Gump might have said, any day with the Trump Administration is like a box of chocolates:  you never know what you’re going to get.  Yesterday, we got the decision from President Trump to fire the Director of the FBI, James Comey.  And, to accentuate the bizarre, bolt from the blue aspect of the decision, Comey apparently learned of the decision when the news flashed across the TV screen behind him while he was giving a speech, and he initially chuckled and thought it was a joke.

The White House says that Trump acted on the recommendation of senior officials in the Justice Department, who concluded that Comey botched the investigation into Hillary Clinton’s questionable email practices and, in the process, caused “substantial damage” to the credibility and reputation of the FBI that has “affected the entire Department of Justice.”

FILE PHOTO: FBI Director Comey testifies on Capitol Hill in WashingtonThe Deputy Attorney General, Rod J. Rosenstein, prepared a memorandum citing reasons for Comey’s discharge that stated:  “I cannot defend the director’s handling of the conclusion of the investigation of Secretary Clinton’s emails, and I do not understand his refusal to accept the nearly universal judgment that he was mistaken. Almost everyone agrees that the director made serious mistakes; it is one of the few issues that unites people of diverse perspectives.”  Among other mistakes, Rosenstein cited Comey’s curious July 5 press conference, where Comey announced that charges would not be pursued against Clinton but then castigated her creation of the servers and her handling of confidential materials.  Rosenstein stated that Comey acted “without the authorization of duly appointed Justice Department leaders” and added: “Compounding the error, the director ignored another longstanding principle: we do not hold press conferences to release derogatory information about the subject of a declined criminal investigation . . . we never release it gratuitously . . . It is a textbook example of what federal prosecutors and agents are taught not to do.”

There is truth the Rosenstein’s statement about a bipartisan consensus that Comey’s handling of the email investigation involved a lot of mistakes; Comey’s actions and his decision to make an abrupt, pre-election announcement of a renewed investigation into Clinton’s email servers were criticized by former attorney generals in both Republican and Democratic administrations.  And only this week, the FBI had to correct misstatements Comey made in recent testimony to Congress about the email investigation.

But there is something very unsettling about the Trump Administration’s abrupt decision to discharge Comey for actions he took months ago, because the decision comes in the midst of an ongoing investigation into Russian influence into the last presidential election and the actions of the Trump campaign in relation to the potential Russian involvement.  Trump’s letter to Comey giving him the boot oddly acknowledged the ongoing investigation, stating:  “While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation, I nevertheless concur with the judgment of the Department of Justice that you are not able to effectively lead the Bureau.’’  And Rosenstein has only been at his Department of Justice post for two weeks, which suggests that his first job assignment in his new position was to consider whether Comey should be fired.

Not surprisingly, Democrats are up in arms about the decision, which they compare to Richard Nixon’s infamous “Saturday night massacre” of Justice Department officials, and members of Congress are calling for an investigation.  I think an investigation makes sense, but until then I’m going to reserve judgment and see what develops.  There’s no doubt that Comey had his issues, and it may well be that — unfortunate timing aside — the White House and the Department of Justice had legitimate concerns that he simply was incapable of handling the kind of highly sensitive investigations the FBI must undertake in a non-partisan way.  On the other hand, the timing is unfortunate, and naturally gives rise to suspicions about what really happened here.  A through investigation will help to establish the facts and clear the air.

Anthony Weiner Turns Up, Again

Just when you think — and fervently hope — that we’ve finally heard the last of Anthony Weiner, he turns up in the news again.  He’s the proverbial bad penny on the national political scene.

160922-anthony-weiner-featureWhen the world learned recently that Weiner was “sexting” with a 15-year-old girl, I didn’t write about it because, frankly, I think enough attention has been paid to a guy who is obviously a disturbed and narcissistic loser.  He clearly wants attention of some kind or another, so why feed the creep’s ego?  But now the investigation into Weiner’s texting with an underage girl has shaken up the presidential campaign, just when we thought it was about over.  In their investigation of Weiner, the FBI seized his laptop, as well as his iPad and cell phone — and yesterday FBI director James Comey sent a letter to Congress stating that, in that unrelated investigation, the agency found emails that relate in some way to their investigation of Hillary Clinton’s email practices.  The New York Times is reporting that the FBI found tens of thousands of emails involving Huma Abedin, a long-time Hillary Clinton aide who is married to (and now estranged from) Weiner.

There’s not a lot of information about the emails on Weiner’s server.  Comey’s letter to Congress says only that he felt he needed to supplement his prior congressional testimony that the investigation into Clinton’s email server was completed, that the FBI has now learned of emails “that appear to be pertinent to the investigation,” that Comey had been briefed on the findings, and that he agreed it was appropriate for agents to determine whether they contain classified information.  The letter concluded that the FBI can’t yet assess whether the emails on Weiner’s laptop are significant, or when the FBI will finish reviewing them.  

So we don’t know much about the emails right now and, given the pace of the FBI’s prior investigation, we probably won’t know much more until after the election is over — which is why some people are criticizing the FBI director for calling attention to the issue at all.  The disclosure obviously roiled the presidential campaign at a crucial time, with less than two weeks to go.  I would note only that I appreciate the fact that the FBI director obviously takes his obligation to truthful in his testimony to Congress so seriously.

I’m not going to speculate about what might, or might not, be found in the emails.  I’m just going to groan at the fact that we have to hear about Anthony Weiner, again — and hope that we don’t learn that this creepy, apparently sex-obsessed jerk had any kind of significant national security information on his laptop.  Anthony Weiner is about the last person I’d want to have access to sensitive information.

The FBI Director And His Webcam

The FBI has taken a strong stance on the ability of law enforcement and anti-terrorism concerns to trump individual privacy interests.  Its position on requiring Apple to develop a back door through its iPhone encryption protection is just part of a larger concern about privacy advocates hampering the FBI’s ability to catch crooks and killers.

The FBI Director, James Comey, gave a speech this week at Kenyon College where he sounded many of those same themes.  But then he admitted that, on his personal laptop, he’s put a piece of black tape over the camera so no one can hack into his computer and watch him.  After all, it’s not beyond the realm of possibility that somebody, somewhere, might want to watch you through your laptop camera — the FBI itself has developed surveillance software that apparently allows the agency to do just that.

hqdefaultThe notion that the director of the FBI is worried about surveillance on his laptop and put some black tape over his webcam has provoked a lot of reaction on social media, from privacy advocates gleefully saying “I told you so” to paranoid anti-government types seeing Comey’s admission as evidence that the FBI, the NSA, the CIA and the other members of the alphabet soup of American security agencies routinely spy on each other.  And it by  pretty ironic, when you think about it — and pretty funny that the anti-surveillance tool Comey decided to use is a simple strip of duct tape.

But Comey’s reaction also is instructive, and illustrates some apparent hypocrisy.  People who worry about their privacy and governmental overreach are chided for not helping to catch the bad guys and told that if they’ve done nothing wrong they’ve got nothing to worry about — but then even the FBI director takes a basic step to protect his own privacy against unwanted intrusion.  He thinks he hasn’t done anything wrong, and he doesn’t like the idea of somebody spying on him.  He might rationalize it as protection against hacking by a terrorist cell, or a rogue foreign government, rather than concern about surveillance by his own government, but the principle is the same.  If an unhackable iPhone might “hinder law enforcement” in certain circumstances, couldn’t a strip of black tape over a laptop webcam prove to be a hindrance at some point, too?

I’m with the privacy advocates on this one — and Comey’s own actions help to say why.

Land Of The Free, Home Of The Monitored

Yesterday the New York Times published an excellent editorial on the federal government’s routine collection of data about everyday Americans.  As the Times aptly framed the issue, the question is whether the government should be allowed to continue to use anti-terrorism efforts as a catch-all excuse for increasing encroachments into our private activities.  In short, have we gone too far in trading liberty for (alleged) security?

The latest disclosures indicate that the federal government, through the National Security Agency and the FBI, obtains massive amounts of data from the servers of internet companies.  The NSA also apparently has obtained an order from the Foreign Intelligence Surveillance Court that requires Verizon to give the NSA on “an ongoing, daily basis” information on all telephone calls in the Verizon system, including calls that are entirely domestic.  That court order runs from April 25 to July 19, and will provide information on millions of calls — including mine, because Verizon is our cell phone provider.  (Nice to know that, somewhere deep in the bowels of an NSA supercomputer, data about my calls to Kish telling her I’m on my way home from work will be preserved forever, available for use by whatever government functionary cares to access it!)  And, of course, we know that in most metropolitan areas video surveillance cameras surreptitiously record our movements.

For decades, the argument in favor of enhanced government police powers has been that law-abiding citizens have no cause for concern, because only criminals would be targeted.  That argument doesn’t wash when information about the personal activities of millions of Americans is gathered indiscriminately.  Whatever you might think of your fellow citizens, we aren’t all terrorists.  By what right does our government collect information about our telephone calls, our internet searches, and our daily movements?  Shouldn’t anti-terrorist activities be focused on terrorists?

As the Times editorial linked above notes, the Obama Administration’s response to such disclosures has been to offer bland reassurances that systems are in place to prevent abuses.  Those reassurances ring hollow in the wake of incidents like the IRS scandal or the Department of Justice targeting of journalists, where the President and other high-ranking officials disclaim any prior knowledge of classic examples of overreaching by faceless government employees.  So, where are the systems that we are supposed to trust?  With respect to many of these governmental intrusions, it appears that there is no control from the top and — if the statements of press secretaries are to be credited — no meaningful decision-making by anyone who can be held accountable to voters.

Under President Obama, the government’s ever-growing appetite for collection of data about average, taxpaying Americans seems to be on auto pilot.  That is a very scary proposition.

Let Him Be Buried

According to the BBC, there’s a controversy brewing in Boston about the burial of Tamerlan Tsarnaev.  People are protesting outside the funeral home that holds his body, and his family is struggling to find a cemetery that will allow his burial.

Like every American, I’m angered and sickened by the terrorist actions of the Tsarnaev brothers, and I can understand the impulse to deny a final resting place on American soil to someone who cruelly and intentionally killed and injured innocents . . . but I say let Tsarnaev be buried.  A controversy about his remains is just a distraction from the real issues raised by the Tsarnaev brothers and the Boston Marathon bombing — issues like whether they should have been permitted to come to America in the first place, how they came to be radicalized and whether there are steps that can prevent others from becoming similarly radicalized, why Dzhokhar Tsarnaev’s friends allegedly would try to cover up for someone who committed a terrorist act, and whether the FBI and other authorities missed warning signs that should have alerted them to the dangers posed by the Tsarnaev brothers.  Picketing some unfortunate funeral home that holds Tamerlan Tsarnaev’s remains isn’t going to help answer any of those questions.

I say, plant Tamerlan Tsarnaev’s corpse in the corner of some remote cemetery and be done with it.  Ignore this wretched excuse for a human being and let his headstone crumble into dust.  Forget about his body, focus on his actions, and figure out what we can do to keep them from ever happening again.

Privacy In A Warrantless World

Recently Google provided information about how frequently it has received warrantless requests for information from the FBI.  Those of us who think personal privacy still has value in our increasingly monitored world should hope that Google’s approach to disclosure is followed by other companies.

The FBI requests are called National Security Letters.  For some time, FBI headquarters had been permitted to use NSLs in connection with espionage investigations.  In 2001, the Patriot Act broadened the circumstances in which NSLs may be used, and also authorized FBI offices around the country to issue NSLs.  Under current procedures, the FBI may issue NSLs to obtain name, address, length of service, and other information about computer users.  No court approval or warrant is necessary.  Companies receiving the FBI requests aren’t permitted to disclose the existence of the requests, although the recipient can challenge the NSLs in court.

Because of the prohibition on disclosure, Google could provide only summary numerical information about NSLs.  The company said that, in 2012, it had received between 0 and 999 requests for information targeting between 1,000 and 1,999 accounts.  That doesn’t sound too bad — but, of course, Google is only one of many companies that store, move, and organize data on the internet.  Until we know more about the prevalence of NSLs, we can’t assess whether the FBI is appropriately using its authority to issue them.

We should all applaud Google’s effort to provide some information about NSLs and encourage other companies to do likewise.  Whether you think NSLs are a necessary tool in the fight against terrorism or an ill-conceived exception to the warrant requirement, the American public should at least be advised about how frequently NSLs are used, and under what circumstances.  Otherwise, how are informed citizens supposed to voice their views on the law to their elected representatives — and isn’t that how democracies are supposed to work?

Guys And Their Flies

It’s a story as old as the human race:  a powerful older married man has an affair with a younger woman, his indiscretions are discovered, and his career comes crashing down.

The latest example, of course, is former CIA director and four-star general David Petraeus, who resigned after his affair with his biographer, Paula Broadwell, was discovered.  Petraeus, 60, apparently began his affair with Broadwell, 40, shortly after he resigned from the Army, and the affair continued during his service as CIA director until it ended four months ago.  The affair became public when the FBI began investigating whether Broadwell had violated federal cyber-harassment laws by sending threatening anonymous e-mails to another woman.  During the investigation, the FBI traced the e-mails to Broadwell’s computer, where they found explicit and salacious e-mails between Petraeus and Broadwell that evidenced their affair.

Petraeus, who has been married to his wife Holly for 38 years, regrets his indiscretions and says he showed “extremely poor judgment” in having the affair.  No kidding!  He not only betrayed his vows to his long-time wife, he also could have jeopardized classified information given his critical role at the CIA and his access to top-secret information.  Fortunately for Petraeus and everyone else, there is no sign that his tryst with Broadwell compromised national security.

Why do some powerful older men act so stupidly and recklessly?  Is it vanity, or a belief that they are beyond reproach, or is it just that they aren’t thinking at all — at least, not with the right body parts?  After the public disclosure, and the ritual actions of apology and contrition by the disgraced individual are played out, it’s tough to ferret out what really motivates such actions.

It’s a lesson for the rest of us, too.  Behind the carefully controlled and cultivated public image of powerful people, a silly, embarrassing inner adolescent may be lurking and ready to burst forth at any time.  We should all keep that possibility in mind the next time we think a public figure may be perfect and we are told to implicitly trust their judgment on important matters.

Many Questions To Be Answered, Publicly and Quickly (III)

We continue to get news about the murderous attack on the U.S. consulate in Libya and its aftermath — and none of the news is good.

The Obama Administration now concedes what seemed obvious from the outset:  that the attack in Benghazi was not a mob action but instead was a terrorist attack.  That leaves the question of why the Administration and its spokespeople, like the U.S. Ambassador to the United Nations, insisted for days that the attack was purely a response to The Innocence of Muslims YouTube video.

It’s also become clear that the burnt-out shell of the consulate was left unprotected for days, making the place ripe for loss of intelligence information.  Three days after the attack, for example, CNN found a journal kept by murdered U.S. Ambassador Chris Stevens on the floor of the consulate.  The U.S. State Department has criticized CNN’s use of the journal, but the fact that it was found days after the attack by people wandering through the consulate raises serious issues about the competence of the State Department and its security arrangements.  Weren’t procedures in place to destroy sensitive information?  Why wasn’t the area secured more quickly?  If CNN was able to find the journal by rummaging around the site, what classified information might have been acquired by the terrorists who plotted the attack?

Finally, the New York Times has an article about the catastrophic effect of the Libyan attack on U.S. intelligence gathering activities in the Middle East.  As a result of the attacks a number of CIA operators and contractors had to bug out, leaving the U.S. as if it had its “eyes poked out.”  The large CIA presence in Benghazi puts the inadequate security arrangements in sharper focus, and heightens concerns that the names of confidential informants and sources, tentative conclusions reached by our agents, and other significant intelligence information may have been acquired by al Qaeda or other terrorist organizations.  If Benghazi was a major intelligence-gathering center, shouldn’t the security arrangements for the U.S. operations have been far more robust?

The State Department has created a “review board” to examine the attacks, and the FBI is apparently investigating.  That’s all fine, but Congress needs to get involved and begin prompt hearings into the incidents in Libya and Egypt — and, particularly, the many apparent failures in U.S. operations there.  We need to determine whether advance warnings were ignored, why our security arrangements were so woefully inadequate, why we were unable to secure the area for days after the attack, and what we need to do to ensure that such planned attacks on U.S. installations cannot happen again.

Many Questions To Be Answered, Publicly And Quickly

Many Questions To Be Answered, Publicly And Quickly (II)

New Frontiers In Crime

The FBI recently announced that it has cracked a major international cybercrime ring that sought to hack into computer networks, infect them with a virus, steal bank account information, and then use that information to loot bank accounts.  The criminals were based in eastern Europe — which seems to be the venue of choice for computer crimes these days.

It is good to see that the FBI is having some success in the fight against cybercrime, although I imagine this particular criminal enterprise is just the tip of a very large iceberg.  In our modern, world-wide financial system, where so much commerce is done electronically, computer networks are going to increasingly be the targets of criminal activities.  Why try to break into a bank vault and figure out how to get away with cash, gold, or other physical objects when you can sit in the safety of your apartment in Ukraine, tap a few keys on your laptop to unload a virus to a faraway computer, and then later download files with crucial information about bank accounts worth millions of dollars while you sip your morning coffee?

Cybercrime is going to be one of those areas of criminal activity where there will be constant back and forth between criminals who develop new hacking tools and schemes and law enforcement agencies that work diligently to catch up with the latest techniques.

Ending The Anthrax Investigation

Many people have forgotten the deadly letters containing anthrax that came hard on the heels of the 9/11 attacks.  At the time, the anthrax attacks made it seem that the United States was going to be the subject of unending terrorist activity, from every quarter.  Eventually, though, the letters stopped and the public’s focus shifted to al Qaeda, Afghanistan, and later Iraq.

The FBI, however, pursued the identity of the perpetrator of the anthrax attacks in the eight years since the anthrax attacks occurred.  After fits and starts, the FBI’s investigation zeroed in on an Army scientist.  The scientist committed suicide in 2008, shortly after learning that the investigators were preparing to charge him.  The FBI has now released its final report on the investigation, laying out the case against the scientist.  The Washington Post article on the report appears here.

The government’s case is based purely on circumstantial evidence; there is no physical evidence linking the scientist to the crime, no confession, and no eyewitness accounts.  Accordingly, some have claimed that the government would not have been able to secure a conviction in court.  Nevertheless, the circumstantial evidence seems powerful.  The report describes how the scientist was one of the few people who had access to the strain of anthrax found in the letters and the capability to create the spores that were placed in the fatal envelopes, and recounts his erratic personal behavior.

Some crimes are never fully solved; Scotland Yard never determined who was Jack the Ripper.  We should all hope that the FBI is correct in their conclusions in this instance, because the alternative is that the actual anthrax terrorist is still out there somewhere, at large and potentially capable of striking again.