One evening over drinks in Ethiopia, during his tour as a CIA officer back in the 1960s, John Stockwell expressed reservations about covert operations to a senior fellow officer named Larry Devlin. Stockwell worried that the CIA was infiltrating governments and corrupting leaders to no useful end. Devlin, well-known in spy circles for his work in the Congo, berated Stockwell[i]:
“You’re trying to think like the people in the NSC back in Washington who have the big picture, who know what’s going on in the world, who have all the secret information, and the experience to digest it. If they decide we should have someone in Bujumbura, Burundi, and that person should be you, then you should do your job, and wait until you have more experience, and you work your way up to that point, then you will understand national security, and you can make the big decisions. Now, get to work, and stop, you know, this philosophizing.”
It’s a compelling argument: trust me, I know secrets. In fact it’s the same sort of argument that a federal informant named Hector Xavier Monsegur used to convince an activist named Jeremy Hammond to break into a whole slew of servers belonging to foreign governments[ii]. Monsegur assured Hammond: “Trust me, everything I do serves a purpose.” Hammond didn’t realize that he was actually part of an elaborate intelligence campaign being run by the FBI. Pimped out to other American three-letter agencies as it were.
Trust Me: I’m an Insider
John Stockwell was patient. He stayed on with the CIA and rose through the ranks, ultimately garnering enough clout to sit in on subcommittee meetings of the National Security Council. What he witnessed shocked him. Stockwell saw fat old men like senior ambassador Ed Mulcahy who fell asleep[iii] and petty officials like Henry Kissinger who got into embarrassing spats when someone else sat in their chair.[iv] All the while decisions were made that would kill people.
Quelle surprise! There were no wise men making difficult decisions based on dire threats to national security. Merely bureaucrats in search of enemies whose covert programs created more problems than they solved.
There’s a lesson in this story that resonates very strongly. A security clearance is by no means a guarantee of honesty or integrity. The secrets that spies guard don’t necessarily justify covert programs. Rather the veil of the government’s classification system is often leveraged to marginalize the public, to exclude people from policy making, and conceal questionable activity that would lead to widespread condemnation and social unrest if it came to light.
Past decades offer an endless trail of evidence: Operation Gladio, Operation Mockingbird, Project MKUltra, Operation Wheeler/Wallowa, Watergate, Operation CHAOS, COINTELPRO, Operation Northwoods, P2OG (the Proactive, Preemptive Operations Group), Iran-Contra, etc.
Cryptome’s John Young describes how this dynamic literally unwinds democracy[v]:
“Those with access to secret information cannot honestly partake in public discourse due to the requirement to lie and dissimulate about what is secret information. They can only speak to one another never in public. Similarly those without access to secret information cannot fully debate the issues which affect the nation, including alleged threats promulgated by secret keepers who are forbidden by law to disclose what they know.”
The Parade of Lies
In light of Ed Snowden’s revelations, and the remarkably flat-footed response of our political leaders, society is witnessing a crisis of trust. Time after time we’ve been lied to by ostensibly credible government officials. Not little white lies, but big scandalous ones. Lies that bring into question the pluralistic assumptions about American democracy and suggest the existence of what political analysts from Turkey would call a “Deep State[vi].”
For instance, both former NSA director Keith Alexander and House Intelligence Chair Mike Rogers claimed that NSA mass interception was instrumental in disrupting over 50 terror plots, a claim that dissolved quickly upon closer scrutiny[vii].
Or contemplate an unnamed NSA spokesman who vehemently told the Washington Post that the NSA was not engaged in economic espionage[viii], only to be contradicted by leaked top-secret documents which described how the NSA broke into networks run by the Chinese telecom giant Huawei and made off with the company’s crown jewels (i.e. product source code).
When President Obama scored some air time with Charlie Rose, in soothing tones he calmly explained to viewers that the NSA doesn’t monitor American citizens without a warrant. It’s surprising that POTUS, a man with a background in constitutional law no less, would be unaware of Section 702 of the Foreign Intelligence Surveillance Act (FISA). This legal provision contains a loophole that allows just this sort of warrantless monitoring to transpire[ix]. Never mind Executive Order 12333, which is arguable an even greater threat[x].
More recently, consider Dianne Feinstein’s claim back in March that the CIA had been monitoring a network used by the Senate Intelligence Committee. John Brennan, the CIA director, told her that she was full of it and sanctimoniously replied “when the facts come out on this, I think a lot of people who are claiming that there has been this tremendous sort of spying and monitoring and hacking will be proved wrong[xi].”
Well guess what? It turns out Brennan was on the losing side of that bet. An internal investigation showed that CIA officers had indeed been watching the Senate Committee[xii]. Stop and pause for a moment. This disclosure is a serious warning sign. What, pray tell, do you think happens to the whole notion of checks and balances when the executive branch spies on the other two branches? Do you suppose there are implications for the balance of power?
Faced with this ever expanding dearth of credibility, spies have worked diligently to maintain the appearance of integrity. Specifically, industry conferences like Black Hat and DEF CON have regularly catered to the needs of U.S. Intelligence by serving as platform for the Deep State and its talking points: that Cyberwar is imminent[xiii], that cybercrime represents an existential threat[xiv], and that mass interception is perfectly normal and perfectly healthy[xv].
“If the tariff of security is paid, it will be paid in the coin of privacy. [xvi]”
In these hacker venues high-profile members of the intelligence community like Cofer Black[xvii], Shawn Henry[xviii], Keith Alexander[xix], and Dan Greer[xx] are positioned front and center in keynote slots, as if they were glamorous Hollywood celebrities. While those who value their civil liberties might opine that they should more aptly be treated like pariahs[xxi].
“Time Out” Posturing
One would hope that the gravity of Ed Snowden’s documents would have some impact. Indeed, Jeff Moss, the organizer who currently runs DEF CON and who originally founded Black Hat (and, by the way, currently sits on the Department of Homeland Security’s Advisory Council[xxii]), did attempt to make a symbolic gesture of protest in the summer of 2013. He gently requested that feds call a “time-out” and not attend DEF CON[xxiii].
To grasp the nature of this public relations maneuver is to realize that roughly 70 percent of the intelligence budget is channeled to private sector companies[xxiv]. As Glenn Greenwald observed during the 2014 Polk Award ceremony, as far as the national security state is concerned there is little distinction between the private and public sector[xxv]. Anyone who has peered into the rack space of the data broker industry knows that the NSA is an appendage on a much larger corporate apparatus[xxvi].
So asking federal employees to stay away really doesn’t change much because the driving force behind the surveillance state, the defense industry and its hi-tech offshoots, will swarm Vegas in great numbers as they normally do. Twelve months after Moss calls his halfhearted “time-out,” Black Hat rolls out the red carpet for the Deep State[xxvii], (while the government threatens to clamp down on attendance to conferences by foreign nationals[xxviii]). This is all very telling.
Bill Blunden is an independent investigator whose current areas of inquiry include information security, anti-forensics, and institutional analysis. He is the author of several books, including The Rootkit Arsenal , and Behold a Pale Farce: Cyberwar, Threat Inflation, and the Malware-Industrial Complex. Bill is the lead investigator at Below Gotham Labs.
[i] John Stockwell, THE SECRET WARS OF THE CIA: part I, lecture given in October, 1987,
[ii] Mark Mazzetti, “F.B.I. Informant Is Tied to Cyberattacks Abroad,” New York Times, April 23, 2014, http://www.nytimes.com/2014/04/24/world/fbi-informant-is-tied-to-cyberattacks-abroad.html
[iii] John Stockwell, THE SECRET WARS OF THE CIA: part I, lecture given in October, 1987,
[iv] John Stockwell, The Praetorian Guard: The U.S. Role in the New World Order, South End Press, July 1, 1999.
[v] John Young, “Wall Street Journal Secrecy,” Cryptome, August 22, 2014, http://cryptome.org/0002/wsj-secrecy.htm
[vi] Peter Dale Scott, “The Deep State and the Wall Street Overworld”, Asia-Pacific Journal: Japan Focus, March 10, 2014, http://japanfocus.org/-Peter_Dale-Scott/4090
[vii] Cindy Cohn and Nadia Kayyali, “The Top 5 Claims That Defenders of the NSA Have to Stop Making to Remain Credible,” Electronic Frontier Foundation, June 2, 2013, https://www.eff.org/deeplinks/2014/06/top-5-claims-defenders-nsa-have-stop-making-remain-credible
[viii] Barton Gellman and Ellen Nakashima, “, U.S. spy agencies mounted 231 offensive cyber-operations in 2011, documents show” Washington Post, August 30, 2013
[ix] Nadia Kayyali, “The Way the NSA Uses Section 702 is Deeply Troubling. Here’s Why,” Electronic Frontier Foundation, May 7, 2014, https://www.eff.org/deeplinks/2014/05/way-nsa-uses-section-702-deeply-troubling-heres-why
[x] John Napier Tye, “Meet Executive Order 12333: The Reagan rule that lets the NSA spy on Americans,” Washington Post, July 18, 2014, http://www.washingtonpost.com/opinions/meet-executive-order-12333-the-reagan-rule-that-lets-the-nsa-spy-on-americans/2014/07/18/93d2ac22-0b93-11e4-b8e5-d0de80767fc2_story.html
[xi] Mark Mazzetti And Jonathan Weisman, “Conflict Erupts in Public Rebuke on C.I.A. Inquiry,” New York Times, March 11, 2014, http://www.nytimes.com/2014/03/12/us/cia-accused-of-illegally-searching-computers-used-by-senate-committee.html
[xii]Mark Mazzetti, “C.I.A. Admits Penetrating Senate Intelligence Computers,” New York Times, July 31, 2014, http://www.nytimes.com/2014/08/01/world/senate-intelligence-commitee-cia-interrogation-report.html
[xiii] Molly Mulrain, “Former CIA Official: ‘Cyber Will Be Key Component of Any Future Conflict’”, ExecutiveBiz, August 4, 2011, http://blog.executivebiz.com/2011/08/former-cia-official-cyber-will-be-a-key-component-of-any-future-conflict/
[xiv] Gerry Smith, “Cyber-Crimes Pose ‘Existential’ Threat, FBI Warns,” Huffington Post, January 12, 2012, http://www.huffingtonpost.com/2012/01/12/cyber-threats_n_1202026.html
[xv] “U.S. Cyber Command Head General Alexander To Keynote Black Hat USA 2013,” Dark Reading, May 14, 2013, http://www.darkreading.com/risk/us-cyber-command-head-general-alexander-to-keynote-black-hat-usa-2013/d/d-id/1139741
[xvi] Daniel E. Geer, “Cybersecurity and National Policy,” Harvard Law School National Security Journal, Volume 1 – April 7, 2010, http://harvardnsj.org/2011/01/cybersecurity-and-national-policy/
[xix] Jim Finkle, “Defcon 2012 Conference: Hackers To Meet With U.S. Spy Agency Chief,” Reuters, July 20, 2012, http://www.huffingtonpost.com/2012/07/20/defcon-2012_n_1691246.html
[xx] Spencer Ackerman, “NSA keeps low profile at hacker conventions despite past appearances,” Guardian, July 31, 2014, http://www.theguardian.com/world/2014/jul/31/nsa-hacker-conventions-recruit-def-con-black-hat/print
[xxi] George Smith, “Computer Security for the 1 Percent Day,” Escape From WhiteManistan, May 19, 2014, http://dickdestiny.com/blog1/?p=18011
[xxiii] Dan Goodin, “For first time ever, feds asked to sit out DefCon hacker conference,” Ars Technica, July 11, 2013, http://arstechnica.com/security/2013/07/for-first-time-ever-feds-asked-to-sit-out-defcon-hacker-conference/
[xxiv] Tim Shorrock, “Put the Spies Back Under One Roof,” New York Times, June 17, 2013, http://www.nytimes.com/2013/06/18/opinion/put-the-spies-back-under-one-roof.html
[xxv] “”We Won’t Succumb to Threats”: Journalists Return to U.S. for First Time Since Revealing NSA Spying,” Democracy Now! April 14, 2014, http://www.democracynow.org/2014/4/14/we_wont_succumb_to_threats_journalists#
[xxvi] “Inside the Web’s $156 Billion Invisible Industry,” Motherboard, December 18, 2013, http://motherboard.vice.com/blog/inside-the-webs-156-billion-invisible-industry
[xxvii] Spencer Ackerman, “NSA keeps low profile at hacker conventions despite past appearances,” Guardian, July 31, 2014, http://www.theguardian.com/world/2014/jul/31/nsa-hacker-conventions-recruit-def-con-black-hat/print
[xxviii] Andrea Shalal and Jim Finkle, “U.S. may act to keep Chinese hackers out of Def Con hacker event,” Reuters, May 24, 2014, http://www.reuters.com/article/2014/05/24/us-cybercrime-usa-china-idUSBREA4N07D20140524
Some US senators are calling on John Brennan, the director of the Central Intelligence Agency, to resign following the CIA’s admission that it spied on members of Congress.
“After being briefed on the CIA Inspector General report today, I have no choice but to call for the resignation of CIA Director John Brennan,” said Sen. Mark Udall (D-Colorado) in a statement on Thursday.
The CIA watchdog’s report sent shockwaves through US Congress when it revealed on Thursday that the agency’s staffers had unauthorized access to the computer network the CIA and the Senate Intelligence Committee had created to share classified documents as the committee was preparing a report on torture techniques used by the CIA during the presidency of George W. Bush.
“The CIA unconstitutionally spied on Congress by hacking into Senate Intelligence Committee computers. This grave misconduct not only is illegal, but it violates the U.S. Constitution’s requirement of separation of powers. These offenses, along with other errors in judgment by some at the CIA, demonstrate a tremendous failure of leadership, and there must be consequences,” Udall, who is a member of the Senate panel, added.
Sen. Martin Heinrich (D-New Mexico), another member of the committee, also called for Brennan’s resignation on Thursday.
“I think that at this point, it would probably be better for the agency, frankly, if he step aside,” Heinrich said. “I think that the level of trust between the committee and the director has hit a new low and I think today’s revelations largely sorted out who was being accurate in the run-up to this.”
Heinrich was referring to a months-long standoff between the spy agency and the Senate panel over spying allegations.
Following the release of the CIA Inspector General report on Thursday, Brennan apologized to the Senate Intelligence Committee.
The torture report prepared by the Senate panel is a 6,300-page report detailing torture techniques, including water-boarding, wall-slamming and shackling, used by the spy agency.
The report is not going to be made public and even a small portion of the report approved by the Senate to be made public is under review by the White House for further redaction before disclosure.
Nearly every criminal case the FBI and US Justice Department has reviewed during a major investigation that began in 2012 regarding an FBI lab unit has involved flawed forensic testimony, The Washington Post reported.
The review – originally spurred by a Post report in 2012 over flawed forensic testimony by Federal Bureau of Investigation lab technicians that may have led to convictions of hundreds of innocent people – was cut short last August when its findings “troubled the bureau,” according to the Post. The review was ordered by the Justice Department (DOJ) to resume this month, government officials said.
Most of the defendants in cases that involved possibly-botched testimony over microscopic hair matches were never told that their case was part of the review, which includes 2,600 convictions and 45 death-row cases from the 1980s and 1990s. In these cases, the FBI’s hair and fiber unit claimed it found a match to crime-scene samples prior to the age of DNA testing of hair.
The FBI reviewed around 160 cases before halting the investigation 11 months ago, officials said. The probe resumed once the DOJ inspector general lambasted the FBI for the delay in this investigation and another involving the same forensic unit.
A DOJ spokesman said that by last August, reviews were completed and notifications offered for defendants in 23 cases, including 14 death-row cases, that FBI examiners “exceeded the limits of science” when linking hair to crime-scene evidence.
Yet the FBI restarted the review given concerns that forensic errors applied to the “vast majority” of cases. This restart caused major delays in the investigation, leading to objections by the DOJ in January. The FBI and DOJ standoff was finally resolved this month.
“I don’t know whether history is repeating itself, but clearly the [latest] report doesn’t give anyone a sense of confidence that the work of the examiners whose conduct was first publicly questioned in 1997 was reviewed as diligently and promptly as it needed to be,” said Michael R. Bromwich, DOJ inspector general from 1994 to 1999.
“Now we are left 18 years [later] with a very unhappy, unsatisfying and disquieting situation, which is far harder to remedy than if the problems had been addressed promptly,” he added.
The reviews resumed this month under original terms based on an order by Deputy Attorney General James M. Cole, officials said.
The delay came, in part, “from a vigorous debate that occurred within the FBI and DOJ about the appropriate scientific standards we should apply when reviewing FBI lab examiner testimony — many years after the fact,” the FBI said. “Working closely with DOJ, we have resolved those issues and are moving forward with the transcript review for the remaining cases.”
Emily Pierce, a Justice Department spokeswoman, said: “The Department of Justice never signed off on the FBI’s decision to change the way they reviewed the hair analysis. We are pleased that the review has resumed and that notification letters will be going out in the next few weeks.”
Since 2012, the review has addressed only about 10 percent of the 2,600 convictions under suspicion, and maybe two-thirds of questioned death-row sentences.
The DOJ will notify defendants about misconduct in two more death-row cases and in 134 non-capital cases over the next month. The department will also complete evaluations of 98 other cases by early October, including 14 more death-row cases.
In question is a 10-member FBI unit that testified in cases across the nation that involved murder, rape, and various other violent felonies.
Though the FBI has said since the 1970s that hair evidence cannot be used as positive identification, agents still often testified to the near-certainty of matches, according to the Post. Ultimately, there is no accepted research regarding how often hair from different people can appear as the same. Today, the FBI uses visual hair comparison protocols to rule out a potential suspect as a source of hair found at a crime scene before using more accurate DNA testing.
The review highlights a hesitance among courts and law enforcement to address systemic faults of forensic testimony and methods from bygone eras.
“I see this as a tip-of-the-iceberg problem,” said Erin Murphy, an expert on modern scientific evidence who teaches at New York University.
“It’s not as though this is one bad apple or even that this is one bad-apple discipline,” she said. “There is a long list of disciplines that have exhibited problems, where if you opened up cases you’d see the same kinds of overstated claims and unfounded statements.”
JERUSALEM – A mob assaulted two Palestinians as they were walking on the trendy Jaffa street in the center of West Jerusalem on Thursday, their lawyer said, potentially the latest in a string of hate attacks targeting Arabs across Israel in recent weeks.
The two Palestinians — who were identified as Amir Mazin Abu Eisha, 20, and Laith Ubeidat — were injured and subsequently arrested by police, who reportedly said they had threatened people in the crowd “with knives.”
The lawyer for the two Palestinians, Khaldun Nijim, told Ma’an that the two were surrounded by around 20-30 Jewish passerby as they were distributing bread at grocery shops on Jaffa street, the central thoroughfare of West Jerusalem.
After Jewish passerby began verbally and physically assaulting them, he added, “The Israeli police stopped them in their van and pointed guns at them” while the mob “beat them with empty bottles.”
“After they drove away a few meters, the police shot at them. They then stopped and were assaulted again.”
The two sustained injuries in the assault and were detained by Israeli police, who transferred them to the nearby Russian compound police station for “having a knife and obstructing the work of the police.”
An ambulance was called for Abu Eisha to treat his head and ear injuries, but he was prevented from being taken to a hospital for treatment.
Nijim added that a number of members of the mob filed a complaint against the two for “attempting to attack them with a knife,” but he insisted that he planned to file a complaint against the mob and the police officer.
The pair were bailed out and sentenced for 10 days of house arrest.
An Israeli police spokesman did not respond to a request for comment.
Cities across Israel have witnessed a string of attacks against Palestinians in recent months, as a “price tag” crime wave that targeted Palestinians inside Israel for perceived slights against Jewish settlements in the West Bank has evolved into recurring mob attacks and anti-Arab rallies.
In recent weeks, Palestinian passerby have been repeatedly assaulted on Jerusalem’s Jaffa street, and one video that showed a young boy being surrounded and assaulted by dozens was shared repeatedly on social media.
Jaffa street has been covered with flyers warning Arabs not to “touch” Jewish women in recent weeks, as part of a right-wing Jewish campaign to prevent mixing among Jews and Arabs.
Although the majority of Palestinians were expelled from their homes inside Israel during the 1948 conflict that led to the creation of the State of Israel, some Palestinians managed to remain in their villages and their descendants today make up around 20 percent of Israel’s population.
In Jerusalem, however, the majority of Palestinians are not Israeli citizens but residents of Jerusalem who fell under Israeli military occupation in 1967 but unlike West Bank Palestinians were given permanent residency cards entitling them to certain benefits.
As we recently discussed, it’s becoming readily apparent that the FBI’s most vaunted counter-terrorism wins are almost all stings for “crimes” they made up all by themselves and then coerced others to join. Even for those that don’t have a problem with this kind of practice in theory, it has to be jarring to learn just how many of these “terrorists” are either suffering serious mental or social illnesses or have had their confessions beaten out of them. By all appearances, it looks pretty clear that the FBI is bumping up their “win” statistics on the backs of these highly questionable stings.
So of course local law enforcement is getting in on the action as well. Take the police in Washington D.C., for instance, who are featured in a Washington Post story detailing how they invent armed robbery plans whole-cloth and then recruit civilians to join up shortly before arresting these future-criminals. Some of the plots the police devised are quite detailed and terrifying, involving robbing liquor stores and targets that are supposedly drug dealers. After discussing the plans with an undercover cop, everyone is then arrested and charged with a variety of “conspiracy to commit” charges. According to some experts, the government is on firm legal ground with regards to entrapment.
The government is on solid legal ground, experts say, when it comes to fending off allegations that suspects were set up — or entrapped — by the police. Even if the government entices the defendant, the target has to show that he was not predisposed to commit the crime.
Sure, and if you’re a defendant in one of these cases, good luck convincing anyone that you didn’t have a predisposition for the crime you were tricked into thinking you were going to commit. Again, it’s easy to opine that these are bad people, but that doesn’t take into account mental illness and pressure applied by undercover officers eager to bolster their arrest statistics. According to reports, that kind of pressure included giving minors alcohol and/or taking them to strip clubs, because nobody has ever made themselves out to be something they’re not when drunk or in the presence of naked members of the opposite sex. The question becomes whether anything like the made up crime would have ever happened had it not been first invented by the police.
“When you have the government offering guns or the getaway car and making it really attractive, you have to ask: Is this an opportunity that would have really come around in real life? Would this person have been able to put together this type of crime without government assistance?” said Katharine Tinto, a professor at the Benjamin N. Cardozo School of Law in New York who has studied undercover policing tactics.
It’s even worse when the police engineer aspects of the made up crimes in the sting in order to manufacture longer sentences for the would-be criminals they ensnare.
Tinto and others also take issue with the government’s ability to essentially engineer tough penalties by controlling the details of the made-up crime. Part of the reason the District cases have been so successful, according to defense lawyers, is that the potential jail time for the federal conspiracy charge is steep enough that many defendants are more inclined to make a deal with prosecutors than risk losing at trial.
The global problem in all of this is the aim: this is all about bolstering crime-fighting statistics rather than responding to any actual crimes or criminals. Will the police likely get some violent criminals off the streets with this tactic? Sure, but so could actual police work and, as I indicated, that isn’t what this is all about. On top of that, the questions raised by the tactic are serious and some of the people caught up in all this probably aren’t benefited most by engineered jail time. Add to all that questions about who the police are generally going to look towards as targets of this kind of sting operation (gasp, minorities), and we should be left wondering why they aren’t fighting the crime that exists rather than making up crime that otherwise wouldn’t.
Imagine entering family court and knowing that what’s at stake is the person you hold most dear – your child. Now imagine having a judge tell you that he’s removing your child from your custody, from your home. When you ask him why, the judge’s replies, “I honestly can’t tell you.” The judge then signs an order giving custody of your son to Social Services.
You might think that such a court proceeding could never happen in the United States – but you’d be wrong.
It happened not long ago to the father of an American Indian child in South Dakota. What’s more, many similar hearings in which Indian children are removed from their homes for no reasons given to the parents occur at least 100 times a year in Rapid City, South Dakota, alone.
Congress passed the Indian Child Welfare Act (ICWA) in 1978 in an effort to stop American Indian families from having their children removed by state and local officials for invalid and sometimes even racist reasons. Yet 36 years later, Indian children in South Dakota are 11 times more likely to be removed from their families and placed in foster care than non-Indian children.
The ACLU filed a lawsuit in March 2013 in federal court on behalf of the Oglala Sioux and the Rosebud Sioux tribes in South Dakota and on behalf of a class of all Indian families living in Rapid City, South Dakota, the state’s second largest city. We sued state and local officials who, we contend, repeatedly violate ICWA.
We recently examined 120 transcripts of initial custody hearings – known as “48-hour” hearings – held during the past four years involving Indian children. Nearly 100 percent of the time, Indian children were removed from their homes in those hearings. The average length of time those hearings took was less than 4 minutes. Within that time, of the six different judges that oversaw the hearings, not one judge ever told one Indian parent that they have a right to contest the state’s petition for temporary custody of their children in the hearing on the petition.
During those hearings, the parents were not told the reasons for the removal, not provided with an attorney, not allowed to submit any evidence, and not allowed to cross-examine the Social Services worker who had submitted an affidavit against them. In most cases, the parents were not even allowed to see the affidavit.
And what were the parents in these hearings “guilty” of? Here is a snapshot of some of the cases discussed in the transcripts:
- A mother abused by her boyfriend lost custody of her child even though the abuser was not being allowed to return to the home. Before the judge’s decision, the mother pleaded with the judge not to punish her for what the abuser had done.
- A father going through divorce was denied custody of his children solely because his estranged wife got into trouble with the police, even though no evidence was introduced suggesting that the children would be at risk staying with the father.
- A mother lost custody of her daughter merely because the daughter’s babysitter had become intoxicated, without any showing that the mother knew that such a thing might occur.
- A father who tried to discuss the merits of his case was interrupted by the judge and told that the details of child custody removals were not to be discussed in 48-hour hearings, and then the judge signed an order removing the child from the father’s custody.
Our lawsuit seeks to stop state judges and social workers from continuing to remove Indian children from their homes unless the parents are provided with basic guarantees of due process of law and rights afforded 36 years ago in ICWA These include the right to a fair and prompt hearing, the right to notice of the charges against them, the right to an attorney, the right to present evidence, and the right to cross-examine the state’s witnesses.
Based on the 120 transcripts, we recently filed motions asking the federal court to rule that South Dakota officials engage in a pattern and practice of denying Indian families and Indian tribes their basic rights to fairness under ICWA and the Constitution. And next month, the UN Committee on the Elimination of Racial Discrimination will consider a report submitted by the ACLU on U.S. failure to meet its international treaty obligations to end pervasive and institutionalized discrimination, including the lack of due process in American Indian child custody proceedings in South Dakota.
Ultimately, we hope to restore justice to a group of people who our legal system has repeatedly failed.
The late Dr. Tony Martin’s diligent research had been provoked by several events with faculty members in the educational institutions where he taught. The tactics they tried using to silence the focus of his lessons only motivated him even more.
A man is taken from his home by 20 armed, militarized police in fascist black uniforms. They break in through the doors and windows, rappel from the roof with ropes, storm the home where he lives with his wife and four children, in the dead of night.
They take him away, and no one hears from him for days, and then weeks, and then months. He isn’t charged with anything; for a long time he is simply disappeared. There is no official charge, but he is a known political activist, a writer, a lecturer.
This isn’t news, because the country is Jordan, the orders come from the US or from Israel, and the man is an Arab, a Palestinian.
I met Amer Jubran 13 years ago when he was living in the United States. He was arrested for the first time at a protest in Brookline, MA that he helped to organize against a yearly celebration of the colonization of Palestine called “Israel Day.” Police arrested him, broke up the demonstration, held him over night in jail with hand and leg shackles, and then charged him with assaulting a passerby. After a lengthy series of court hearings, the judge found the charges to be baseless. Information obtained in the course of the hearings revealed instead that the police had been in the pay of the Israel Day organizers, including the Israeli consulate. The police had been communicating with them about the protest–including details about individual protest organizers–and had more or less acted as agents of a foreign government.
At that time, I knew almost nothing about the history of Palestine. I attended Amer’s trial because the civil rights violations involved in his arrest were so egregious that his case required support from anyone who sincerely believed in basic political rights.
The bulk of Amer’s trial in Brookline took place in the immediate aftermath of September 11, 2001. The US had just declared an open-ended “war against terrorism,” and already news had begun to trickle out about mass detentions of Arab and Muslim men who were being held beyond the reach of any legal authority, detained indefinitely without access to fundamental rights of due process, and stories were starting to come out about the extensive use of torture.
And at the same time the US passed the Patriot Act and reorganized its security apparatus to create a new “Department of Homeland Security.” With it came new types of federal agents with expanded powers over both citizens and non-citizens; federal, state, and local police were increasingly networked with private agencies in JTTFs; ‘fusion centers’ emerged as nodes of uncontrolled ‘information sharing’ about everyone.
Those of us who were politically active at the time could see what was coming. I remember friends circulating a famous quote from Hanna Arendt:
“The first essential step in the road to total domination is to kill the juridical person in man. This was done, on the one hand, by putting certain categories of people outside the protection of the law and forcing at the same time, through the instrument of denationalization, the nontotalitarian world into recognition of lawlessness; it was done, on the other, by placing the concentration camp outside the normal penal system, and by selecting its inmates outside the normal judicial procedure in which a definite crime entails a predictable penalty.” (Origins of Totalitarianism)
We could see what was coming and those of us who cared got involved however we could.
I got to know Amer in the course of his trial and began to learn about Palestine: the expulsion of Palestinians in 1948, the occupation of the remainder of Palestine in 1967, the continuing circumstances of racist oppression and land theft, not only in all of historic Palestine, but in the entire region surrounding it. To be Palestinian in Nazareth, or in Gaza, or in al Quds (also called Jerusalem), or Khalil (“Hebron”), is much the same as to be Palestinian in Amman (Jordan) or in Sabra and Shatila (Lebanon). The refugees fled murder on their land and it sought them out in the camps. To be Palestinian anywhere in historic Palestine is to be subject to arbitrary detention without trial (‘administrative detention’), and it’s the same in Amman or in Cairo.
I visited Khalil for the first time in 2003. What I saw there became for me an image of the entire region. Some 120,000 Palestinians live in the greater area of Khalil–the city and interconnected villages surrounding it. 400 zionist settlers live in a garrison called Kharsina. For their sake, a regime of total lockdown was imposed on all the Palestinians in the city and villages. All village entries and exits were blocked with boulders and other roadblocks. Curfew imposed. Children couldn’t attend school, elders couldn’t reach hospitals, no one could move goods. All this so that 400 settlers can feel ‘secure’ living on stolen land. This is the meaning of ‘security.’
And this is the image of the region. For the sake of less than 6 million highly privileged colonial-settlers, over 150 million Arabs in the surrounding region live under circumstances of political repression, foreign invasion, occupation, and poverty. No freedom of movement, no freedom of expression, no basic political rights. This is what it means when we say ‘for Israel’s security.’
I learned about Palestine and I became active along with Amer and others we knew in trying to speak for the cause of Palestine where we lived in the United States. Together with other Palestinians living in the area, Amer created an organization called the New England Committee to Defend Palestine.
We spoke of the unity of the Palestinian cause, of liberation for all of historic Palestine, for the rights of refugees to return to their homes.
Two days after the first demonstration of the NECDP, FBI and INS agents broke into Amer’s home in Rhode Island and demanded that he answer some questions. “Please the ears of this gentleman,” said the INS agent pointing to the FBI agent, “or you’ll rot in jail for fifty years.” Amer demanded his right to an attorney. They jailed him, at first without charges or access to a lawyer. We obtained a lawyer for Amer, but they refused to give any information to him when he called, and hung up on him. They held him that way for 17 days. It took an international campaign just to get him a bond hearing.
Eventually the INS (which became the ICE) manufactured immigration charges against Amer to justify–and at the same time conceal–the US government’s political persecution. They now claimed that the marriage through which he had obtained his green card had been fraudulent.
For over a year, we fought the case in hearings before the immigration court. The Department of Homeland Security devoted more than 12 FBI agents to “gathering information” on what was ostensibly an immigration matter. Agents visited members of Amer’s ex-wife’s family and tried to intimidate them into testifying against him. In some cases they showed pictures of Amer taken at demonstrations in the US and claimed that they were images from a “terrorist training camp” in Afghanistan. They tried to connect Amer with 9/11, and to suggest that people who didn’t fully cooperate might make themselves liable to prosecution in connection with “terrorism.”
We fought the case in the immigration court for more than a year. In the course of the proceedings, we submitted FOIA petitions that turned up evidence of widespread cooperation between local police and federal agents in monitoring us and other activists for political activities such as demonstrations, educational websites, and court solidarity. These included the following:
*Still photographs of Amer, his friends, witnesses and supporters taken inside the courtroom during his Brookline trial, and sent to the Boston Police
*A fax cover sheet documenting the communication of records between the Brookline Police and the FBI in July, 2003
*More than twelve video tapes made by the Boston police of pro-Palestine, anti-war, and civil liberties/immigrant rights rallies, which all found their way into a file concerning Amer Jubran
*A memo from the FBI refusing to grant the FOIA petition on the grounds that the subject was “under investigation.”
When it became clear that the immigration court was not a venue in which justice could be obtained, Amer took ‘voluntary departure’ and returned to Jordan in 2004.
Amer’s hearings were well attended by activists. The media closely followed his case, and there was considerable outrage that the government would use immigration proceedings to silence political speech.
A decade has passed. In that time, the arrest and prosecution of Arabs and Muslims for ‘terrorism’ based on speech–especially the defense of the rights of their peoples to resist invasion and occupation by the US or Israel–has been normalized in the framework of domestic security. There is openly a 1st Amendment exception for Arabs and Muslims. Torture and extrajudicial killing (assassination) are no longer dirty secrets, but official policy. Habeas corpus died with the Supreme Court decision in the Hamdi case; the body of policies and cases surrounding indefinite detention outside the reach of the law have now been codified in the National Defense Authorization Act of 2012, giving the US military the power to detain anyone without recourse to meaningful judicial oversight.
So that now, when 20 black-clad militarized police arrest a Palestinian in his home in Jordan for criticizing US and Israeli policies in the region–an arrest carried out almost certainly at the behest of the US–it just isn’t news. No journalist is interested in the story; no major media outlet will cover it.
Amer continues to be held in Jordan without charges, but has finally been allowed a visit by family, and his whereabouts are now known. His spirit remains strong.
Jordan recently passed legislation further criminalizing political speech as part of its “anti-terrorism” laws. The new amendments specifically criminalize activities that are harmful to Jordan’s relationship with foreign governments. Even before the passage of the new legislation, Jordan had already tried Mwaffaq Mahadin for “endangering relations with a foreign state” for speaking about Jordan’s security cooperation with the US on Al-Jazeera, so it isn’t hard to imagine how the new legislation will be applied. Over the past year, Amer has been sending out critical information and articles about Israeli, US and Jordanian cooperation in destabilizing Syria.
But at this point, it’s hardly even necessary to invent crimes and pass legislation. Jordan’s General Intelligence Directorate (GID)–the agency responsible for Amer’s arrest– is a black hole, accountable to no one, except possibly its paymaster, the US. One Jordanian lawyer told me, when I asked about the possibility of filing habeas corpus on Amer’s behalf, “There’s no such thing here. Our country is being maintained as a conduit to Guantanamo.”
Amer might sit indefinitely in detention without charges. Or he may be brought up at any time and charged with “terrorism” before the State Security Court, a rubber stamp court for the GID. If so, his lawyer might be told the charges a day or two before the sham trial, which then leads to inevitable conviction–a mere formality.
Only a concerted political campaign that gets widespread international attention can make any difference. It’s up to us to create enough visibility to make that possible.
Noah Cohen is active with the Amer Jubran Defense Campaign (freeamer.wordpress.com) and can be reached through the campaign at defense (at ) amerjubrandefense.org.
Court Conclusively Finds Material Support Not a War Crime
Washington, D.C. – In response to today’s en banc ruling by the D.C. Court of Appeals in Al-Bahlul v. United States, the Center for Constitutional Rights (CCR) issued the following statement:
Today’s Court of Appeals ruling defers resolving important questions — Can conspiracy charges be tried by military commission? Is domestic law relevant to that decision? — to a future case. But the five separate opinions, totaling 150 pages, are entirely clear on one point: all seven judges agreed that material support for terrorism is not a war crime triable by military commission, even for a defendant who forfeited his defenses at trial. That decision mandates that our client David Hicks’s conviction for material support, pending on appeal before the Court of Military Commission Review, be vacated. Today’s ruling is a reminder that a military commission prosecution or conviction can unravel at any time.
The court merely deferred the inevitable by failing to recognize that conspiracy is no more appropriately tried in a military commission than material support. We urge the Supreme Court to review today’s ruling regarding conspiracy and dispense with all fabricated war crimes charges once and for all.
The Center for Constitutional Rights represents Australian David Hicks, convicted of a sole count of material support by a military commission at Guantanamo, whose appeal seeking to have his conviction overturned has been stayed pending today’s D.C. Circuit decision.
The Center for Constitutional Rights has led the legal battle over Guantánamo for more than 12 years – representing clients in two Supreme Court cases and organizing and coordinating hundreds of pro bono lawyers across the country, ensuring that nearly all the men detained at Guantánamo have had the option of legal representation. Among other Guantánamo cases, the Center represents the families of men who died at Guantánamo, and men who have been released and are seeking justice in international courts.
Last month, a military judge dealt a significant blow to U.S. prosecutors’ efforts to suppress torture evidence in the Guantanámo military commissions.
In a ruling in the U.S.S. Cole case, unsealed last week, Judge James Pohl told prosecutors they must hand over CIA black site information to the defense attorneys of Abd al-Rahim Hussayn al-Nashiri. Back in April, Judge Pohl similarly ordered the prosecution to give extensive information to Mr. al-Nashiri’s lawyers about his “4-year odyssey” through the CIA’s rendition and torture program. In the new ruling, Judge Pohl confirmed the core of the earlier order and issued important findings that will reverberate not only in Mr. al-Nashiri’s case but also in the 9/11 case, where one of the five defendants has already asked for similar information.
Judge Pohl found that Mr. al-Nashiri was subjected to “enhanced interrogation techniques” – the government’s euphemism for torture and cruel treatment, such as waterboarding and stress positions. More importantly, he ruled that information about that abuse is relevant and helpful to the defense. In particular, it will be relevant at sentencing because Mr. al-Nashiri faces the death penalty. His lawyers have said they will argue that he cannot be executed because he was tortured by the CIA – an argument that 9/11 defense lawyers will also likely make for their own clients.
Judge Pohl also said that the use of torture techniques will impact whether any statements Mr. al-Nashiri made afterwards are too tainted to be used at trial. Under the military commissions rules, the prosecution must convince the judge that the statements were “voluntarily given” in order to use them. The prosecution has already indicated that it will seek to use statements Mr. al-Nashiri made to the FBI after he arrived at Guantánamo. But with the new ruling, the prosecution will be required to turn over the information the defense says it needs to argue that these statements were tainted by the CIA’s earlier torture and abuse.
Judge Pohl’s order requires the prosecution to give the defense lawyers 10 categories of information, including where Mr. al-Nashiri was held, the conditions in each site, whom he interacted with, and how he was rendered from site to site. What’s not clear is the extent to which the prosecution will seek to provide summaries or other substitutes for some documents or to redact the names of personnel. According to Mr. al-Nashiri’s lawyers, this will be litigated in the coming months. Still, the ruling has definitively established that the information is relevant and helpful to the defense, and any new requests by the prosecution to narrow what it has to turn over will be limited by the ruling.
That’s a sea change, although a long-delayed one on a fundamental fair trial right: access to evidence. Judge Pohl has decided to step down from this case to concentrate on the commission trial of the 9/11 defendants. It’s now up to his successor to ensure this important decision is properly implemented.
What does an 86-year-old art photographer have in common with a young man with a video game habit?
Not just a proclivity for perfectly innocuous hobbies, unfortunately. These days, engaging in either activity can get the FBI on your case.
Today, the ACLU and our partners at Advancing Justice–Asian Law Caucus and Bingham McCutchen are taking the federal government to court over a surveillance program that targets people even if they are engaging in entirely innocent and constitutionally protected activity, and encourages religious profiling. As if that weren’t enough, the Suspicious Activity Reporting (SAR) program also violates the government’s own rules for the collection of criminal intelligence.
James Prigoff is one of our clients. He is 86 years old, and a renowned photographer of public art. He has lectured at universities and had his work exhibited at museums around the world. In 2004, he was stopped by security guards in Boston while attempting to take photos of a famous piece of public art called the Rainbow Swash, which is painted on a natural gas storage tank. Several months later, the FBI tracked him down at his house in Sacramento to question him about his activities in Boston.
Tariq Razak, a young scientist and Pakistani-American, is another plaintiff in our case. He became the subject of a SAR after a visit to a train depot in Santa Ana, California, where he had an appointment with the county employment resource center. He walked around the depot looking for the resource center, and his mother, who was wearing a hijab, accompanied him. He later discovered that this conduct led to a SAR describing him as “a male of Middle Eastern descent” who was suspicious because he was “constantly surveying all areas of the facility” and because he met up with a “female in a white burka head dress.”
Our other clients were also unfairly targeted, falling under government scrutiny for activities ranging from buying computers to playing video games. Several of them were profiled due to their perceived religious beliefs.
These “suspicious activities” may be absurd, but there’s nothing funny about the program. The Department of Justice (DOJ) and the Information Sharing Environment, a post-9/11 agency tasked with coordinating national security intelligence-sharing, have adopted lax standards for what constitutes “suspicious activity.” These standards violate a DOJ regulation from 1978 that prohibits law enforcement from sharing “intelligence” about individuals unless the information is supported by reasonable suspicion of criminal activity. The 1978 regulation was adopted in the wake of prior domestic surveillance abuses.
Predictably, eschewing those protections has turned back the clock. The government is ignoring sensible limits on criminal intelligence collection and actively encouraging not just law enforcement, but also private security guards, shopkeepers, hotel owners, and even neighbors, to collect and share information about innocent conduct.
- Hotels are advised to be on the lookout for guests who “request specific room assignments or locations” or use “payphones for outgoing calls.”
- Rental car companies are instructed that “providing multiple names” on rental paperwork is to be “considered suspicious.”
- Hobby shops should be wary of customers with an “unusual interest” in remote-controlled aircraft and those who pay in cash.
- The general public is cautioned to report “unusual activity,” including “people acting suspiciously” and “people in places where they do not belong.”
If “acting suspiciously” or being somewhere someone thinks you don’t “belong” is enough to put people into federal counter-terrorism databases, it’s no wonder the databases are full of irrelevant information and reports targeting Muslims, South Asians, and Arab Americans. As you may remember from last year, actual SARs we obtained through Public Records Act requests include reports with subjects like “Suspicious ME [Middle Eastern] Males Buy Several Large Pallets of Water.” It’s also no wonder law enforcement experts criticize the SAR program for “flooding” law enforcement with “white noise.”
Today our clients are challenging a program through which innocuous and even constitutionally protected activity is being reported as “suspicious” and leading to federal law enforcement scrutiny. This program not only violates federal privacy protections for “intelligence” sharing. It encourages a culture of fear and distrust, undermining our freedom with no known benefit to our safety.
In a letter to President Obama, 38 journalism groups criticized his administration for severely limiting access to federal agencies and a general politically-motivated suppression of information despite the president’s pledge of historic transparency.
Led by the Society of Professional Journalists (SPJ), the groups said that efforts by government officials to curb free-flow of news and information to the public has reached a peak during the Obama administration following a similarly stifling culture during prior president George W. Bush’s tenure in the White House.
“Over the past two decades, public agencies have increasingly prohibited staff from communicating with journalists unless they go through public affairs offices or through political appointees,” wrote SPJ president David Cuillier. “This trend has been especially pronounced in the federal government. We consider these restrictions a form of censorship — an attempt to control what the public is allowed to see and hear.”
Cuillier added that while agency personnel are kept mostly off limits to journalists, they are ”free [to] speak to others — lobbyists, special-interest representatives, people with money — without these controls and without public oversight.”
The groups said that Obama’s recent lamentations of a growing cynicism of government were peculiar given his administration’s broad efforts to shroud official action and policy maneuvers in secrecy, all of which “undermines public understanding of, and trust in, government,” the letter reads.
“You need look no further than your own administration for a major source of that frustration – politically driven suppression of news and information about federal agencies. We call on you to take a stand to stop the spin and let the sunshine in,” wrote Cuillier.
The administration has previously dismissed similar sentiment from other journalism and watchdog groups, including the White House Correspondents’ Association.
The letter cites examples of alleged information censorship, including officials repeatedly blocking reporters’ requests to talk with specific agency staff, long delays in answering questions that disregard reporters’ deadlines, officials’ proclivity for offering information anonymously or “on background,” and federal agencies completely blackballing of certain journalists who write critically of them.
“In many cases, this is clearly being done to control what information journalists — and the audience they serve — have access to. A survey found 40 percent of public affairs officers admitted they blocked certain reporters because they did not like what they wrote,” the letter stated.
The groups recommended that the president should encourage all federal agencies and their public employees to speak freely with reporters. In addition, they called for an ombudsman to keep track of any suppression efforts.
“Create an ombudsman to monitor and enforce your stated goal of restoring transparency to government and giving the public the unvarnished truth about its workings,” the letter said. “That will go a long way toward dispelling Americans’ frustration and cynicism before it further poisons our democracy.”
In March, journalists at the Associated Press reported that their research indicated that the US government has withheld more information than ever under the authority of President Obama. Their findings were based mainly on how difficult it is to successfully request documents from the White House through the US Freedom of Information Act.
In addition, the Obama administration has been criticized for using the punitive, World War I-era Espionage Act to punish whistleblowers who leak classified government information to journalists, in effect chilling press freedoms.