Is the FBI a Criminal Organization?

Last week, in a piece I wrote for The Huffington Post on the hypocrisy in the Bradley Manning trial, I argued that “The law is for the powerful to defy with impunity, and for the weak to be punished with.” As evidence, I mentioned several high crimes committed by the Bush and Obama administration, crimes for which they will never be prosecuted.

And then in yesterday’s USA Today I saw this remarkable article reporting that government documents show that the FBI committed 5,658 crimes in 2011 alone. That amounts to 15 crimes a day, on average, that FBI agents explicitly authorized. And far from being part of a rogue, covert program kept hidden from a judge, this is standard operating procedure on which the Department of Justice provides oversight.

The FBI gave its informants permission to break the law at least 5,658 times in a single year, according to newly disclosed documents that show just how often the nation’s top law enforcement agency enlists criminals to help it battle crime.

The U.S. Justice Department ordered the FBI to begin tracking crimes by its informants more than a decade ago, after the agency admitted that its agents had allowed Boston mobster James “Whitey” Bulger to operate a brutal crime ring in exchange for information about the Mafia. The FBI submits that tally to top Justice Department officials each year, but has never before made it public.

Agents authorized 15 crimes a day, on average, including everything from buying and selling illegal drugs to bribing government officials and plotting robberies. FBI officials have said in the past that permitting their informants — who are often criminals themselves — to break the law is an indispensable, if sometimes distasteful, part of investigating criminal organizations.

Let that last sentence sink in for a moment. The government must break the law in order to catch and punish lawbreakers. Does that not offend even the most superficial understanding of the rule of law this country was supposedly founded upon?

According to the USA Today report, this number of 5,658 crimes in one year barely scratches the surface:

USA TODAY obtained a copy of the FBI’s 2011 report under the Freedom of Information Act. The report does not spell out what types of crimes its agents authorized, or how serious they were. It also did not include any information about crimes the bureau’s sources were known to have committed without the government’s permission.

Crimes authorized by the FBI almost certainly make up a tiny fraction of the total number of offenses committed by informants for local, state and federal agencies each year. The FBI was responsible for only about 10% of the criminal cases prosecuted in federal court in 2011, and federal prosecutions are, in turn, vastly outnumbered by criminal cases filed by state and local authorities, who often rely on their own networks of sources.

“The million-dollar question is: How much crime is the government tolerating from its informants?” said Alexandra Natapoff, a professor at Loyola Law School Los Angeles who has studied such issues. “I’m sure that if we really knew that number, we would all be shocked.”

If you read Trevor Aaronson’s meticulously reported book The Terror Factory: Inside the FBI’s Manufactured War on Terrorism, you’ll get a glimpse into how the thuggery at the FBI works in the war on terror. Aaronson thoroughly documents all those “terror plots” that the FBI has “foiled.” By and large, the FBI uses untrustworthy delinquents as informants in order to entrap unsuspecting halfwits that never would have been able to carry out a terror attack without  FBI encouragement and facilitation.

By John Glaser

Far be it from me to prejudge, but Antiwar.com has been requesting FBI documents on this website through the Freedom of Information Act since 2011, to no avail. Thankfully, the ACLU is suing on our behalf. Requesting surveillance of this website and its founders, as the FBI did, and suspecting we may be an agent of a foreign power – all for exercising our First Amendment rights- seems like it fits perfectly within the Bureau’s modus operandi.

The sky darkens for American journalism

The future of the American media is being decided in a military court, writes Chase Madar.

Bradley Manning released hundreds of thousands of government documents and files to Wikileaks, most famous among them the unclassified video Wikileaks dubbed, “Collateral Murder”, a harrowing gun-sight view of an Apache helicopter slaughtering a couple of armed men and a much larger group of civilians on a Baghdad street in July, 2007.

The court-martial of Pfc. Manning, finally underway over three years after his arrest, is likely to cause a great deal of collateral destruction in its own right. In this case the victim will be American journalism.

Contrary to widespread panic, massive leaks of classified material tend to enhance national security as the new information can prevent the kind of reckless, poorly-informed decisions that have squandered so much blood and money, from Southeast Asia to Iraq

The most serious of the charges against Manning is the capital offense of “aiding the enemy.” (Team Obama has made it clear it won’t seek the death penalty, but a life sentence is possible.) The enemy that the prosecution has in mind is not Wikileaks or the global public but Al Qaeda; because this group had access to the internet, the logic goes, they could read Manning’s disclosures just like everyone else.

The government does not have to prove Manning’s conscious intent to help Al Qaeda, but must only meet the squishier standard of proving the defendant had “specific knowledge” that the terrorists might benefit from his cache of documents.

If this charge sticks, it will be a serious blow to American journalism, as it puts all kinds of confidential informants at risk of being capital cases. A soldier in Afghanistan who blogs about the lack of armoured vehicles – a common and very public complaint from the ranks in the Iraq War – could be prosecuted for tipping off the Taliban.

Whoever leaked Ambassador Karl Eikenberry’s long cable on the futility of counterinsurgency in Afghanistan could also be conceivably be put away for life, even executed. As Ben Wizner of the American Civil Liberties Union has explained, the use of this charge against sources, leakers and whistleblowers – like Bradley Manning – will criminalise a great deal of essential journalism – and not just the kind practiced by Wikileaks and various bloggers.

The Manning prosecution has asserted more than once that they would have pressed the Aiding the Enemy charge even if the private had passed his cache to the New York Times or the Washington Post (as the leaker had attempted).

This jolted the editorial classes, who do not much like imagining themselves as being implicated, however hypothetically, in terrorist acts. Op-eds in the New York Times and Los Angeles Times have blasted the Aiding the Enemy charges brought against Manning, explaining that they would not just “chill” but freeze a great deal of essential journalism.

The news media has always relied on leaks of classified material, from the Pentagon Papers and Watergate, to the preemptive disclosure of the 2007 National Intelligence Estimate holding that Iran had no nuclear weapons program, a transparent attempt by the military brass to block Bush and Cheney from launching a third war.

And contrary to widespread panic, massive leaks of classified material tend to enhance national security as the new information can prevent the kind of reckless, poorly-informed decisions that have squandered so much blood and money, from Southeast Asia to Iraq.

Who is a journalist and who gets to decide?

Aiding the Enemy is of course not the only charge against Private Manning. One of the charges, “wanton publication,” hinges in part on whether Wikileaks is a bona fide journalistic entity. But who gets to decide who is and who isn’t a journalist, and how?

Defense witness Yochai Benkler, a professor at Harvard Law School and expert on press freedom and the internet, provided an answer earlier this month. Benkler, who has published penetrating studies of the 21st century media landscape, took the stand July 11th to address the matter of who is and who isn’t a journalist.

Wikileaks is absolutely a media organization, one perfectly emblematic of the “networked fourth estate”, in which traditional news outlets like the Guardian and Der Spiegel collaborate with smaller non-profit and for-profit entities to produce news coverage. Supporters of Manning found Benkler’s testimony to be lucid, supremely well-informed and compelling – but will it convince Judge Denise Lind?

As for traditional news media, they have been largely AWOL, with the New York Times sending a correspondent to a few hearings, only after a shaming by the newspaper’s public editor. But a handful of independent correspondents, notably Kevin Gostzola of FireDogLake, independent journalist Alexa O’Brien and Bradley Manning staffer Nathan Fuller, as well as court artist Clark Stoeckley – have covered every breath of the legal proceedings.

And even as more established media have leaned heavily on these reporters for all manner of factual and logistical assistance, gracious acknowledgement of the professional debt has not always been forthcoming. Last month the New York Times rather snottily described O’Brien as a mere “activist” before being embarrassed into a correction.

Although smug torpor is Big Media’s default setting, a recent barrage of sucker-punches has shaken the Fourth Estate’s generally cosy partnership with the political class. The Obama administration has named James Rosen of Fox News as a co-conspirator in its case against State Department leaker Stephen Jin-Woo Kim; the government has also announced that it had been sifting through two months of the Associated Press’s phone records to hunt down the source of a leak.

Obama’s poison gift to journalists

Affecting a chastened air, the Obama administration now says it wants to make nice with journalists.   To strike a finer “balance” between press freedom and security, Team Obama has offered to pass a Press Shield Law-a slightly revamped version of the same bill the White House threatened to veto back in 2009. (Senator Obama had been a liberal champion of just such a bill before). This Press Shield Law is intended as conciliatory basket of fruit, sent to the media as an apology for all those investigations.

If the Aiding the Enemy charge sticks, Pfc. Manning faces a possible life sentence – and the outcome might be only slightly less calamitous for American journalism

The government’s gift to journalists is poison, and should be rejected. The Press Shield Law would be more accurately titled the Media Prosecution Enhancement Bludgeon – as Trevor Timm of the Press Freedom Foundation has warned, the statute would override and erase many common-law protections currently enjoyed by reporters.

Just as with our whistleblower protection laws, the statute includes a cavernous carve-out for any leak-based reporting that affects “national security”, a term that is infinitely elastic in the hands of official Washington. (The law would not have “shielded” the Associated Press from the government’s investigation of their phone records, nor would it have protected Fox’s Rosen).

But wait: that’s not all that the new law won’t do! As the law’s primary author, Senator Chuck Schumer (D-NY) has crowed, the law would specifically exclude Wikileaks and other internet-based groups that he and his colleagues do not believe to be proper media organizations. (Bear in mind the average age in today’s United States Senate is 61). The language defining who is and who isn’t “a member of the media” is marvellously supple, to be loosened and tightened as the government sees fit.

Meanwhile, the State onslaught against American journalists continues: the dependably conservative Washington DC circuit court has ruled that James Risen of the New York Times must testify as to his sources in a story about CIA disruption of Iran’s nuclear program. (Risen has pledged he will go to jail first).

Former NSA and CIA director Michael Hayden has casually called Glenn Greenwald a co-conspirator with NSA leaker Edward Snowden. With this roiling in the background, military judge Denise Lind announced on July 18 that she would not dismiss the Aiding the Enemy charge against Bradley Manning but will instead weigh that momentous accusation on its merits.

This is not necessarily a disaster for Manning or for American journalism: if Judge Lind rules against this charge, it will establish common law precedent protecting journalists from similar legal attacks, and Bradley Manning will likely serve (a little) less time in prison. (The Judge’s verdict is expected by next Tuesday, July 30th).

On the other hand, if the Aiding the Enemy charge sticks, Pfc. Manning faces a possible life sentence – and the outcome might be only slightly less calamitous for American journalism.

 

Chase Madar is a civil rights attorney in New York and the author of The Passion of Bradley Manning: The Story behind the Wikileaks Whistleblower.

Follow him on Twitter: @ChMadar

Four Obama Policies That Help Keep Guantanamo Open

President Barack Obama said on Tuesday that he still wants to close the detention facility at Guantanamo Bay, as he had promised on the campaign trail in 2008: [hl-black]“I think it is critical for us to understand that Guantanamo is not necessary to keep America safe,” he said. “It is expensive. It is inefficient. It hurts us in terms of our international standing. It lessens cooperation with our allies on counterterrorism efforts. It is a recruitment tool for extremists. It needs to be closed.”[/hl-black] The problem, Obama said, is with Congress, which has blocked efforts to transfer detainees or close the prison camp. Last November, the Senate approved an amendment to the annual defense budget bill to ban the transfer of detainees to U.S. prisons. Sen. Lindsey Graham (R-SC) offered a colorful explanation for the provision to The Hill: “We don’t want these crazy bastards brought here to the United States,” he said. “They want to steal your way of life, not steal your car. Have you lost your mind?” Obama had threatened to veto the bill if the amendment passed, but signed it anyway, attaching a signing statement claiming the constitutional power to override the amendment. But he hasn’t yet done so, and it’s not clear whether he will: Congress made the same provisions in the 2012 defense bill, and he didn’t override those, either. On Tuesday, Obama said he was going to try again. “I’m going to go back at this,” he said. “I’ve asked my team to review everything that’s currently being done in Guantanamo, everything that we can do administratively, and I’m going to re-engage with Congress to try to make the case that this is not something that’s in the best interests of the American people.” But despite his stated desire to close Guantanamo, Obama has authorized at least four policies that have helped to preserve a detention system that he said Tuesday was “not sustainable”  — and made it more difficult for prisoners to be released. Here’s the list:

1. Detaining prisoners already cleared for release.

us-cuba-relations-1The administration has already transferred 72 detainees out of Guantanamo, and cleared another 86 for release, either to their home country or to another nation willing to take them. “There are a number of the folks who are currently in Guantanamo who the courts have said could be returned to their country of origin or potentially a third country,” Obama said on Tuesday. But the administration put a freeze on any transfers after the 2009 attempt by a Nigerian man to bring down a US airliner. The man, Umar Farouk Abdulmutallab, is believed to have been inspired by a Yemeni branch of Al Qaeda, and many of those cleared for release are from Yemen. The administration was concerned about returning them to a country besieged by terrorists. Sen. Dianne Feinstein (D-Calif.), noting that the situation in Yemen had become more stable, called last week for the president to consider lifting the transfer ban.

2. Closing the office responsible for transferring detainees.

In January, the State Department announced that it was shuttering the office of the special envoy assigned to work on closing Guantanamo. Daniel Fried, the ambassador assigned to the post, worked to relocate detainees and find countries that might accept those who can’t be returned home, and secured the 72 transfers before the ban was put in place. Fried is now working on sanctions policy. The State Department said he wouldn’t be replaced.

3. Force-feeding detainees.

Currently, 100 of the 166 people currently being held in Guantanamo are on hunger strike, and 21 are being force-fed through tubes put down their noses. “I don’t want these individuals to die,” Obama said on Tuesday. But the practice is a violation of medical ethics, according to the American Medical Association, which sent a letter of protest to Defense Secretary Chuck Hagel. The definitive report on torture during the Bush administration, released in April by a nonpartisan task force, said that the practice is “a form of abuse and must end.” The prisoners began the strike out of despair that they may never be released. Sen. Dianne Feinstein told the Obama administration in a recent letter that Red Cross staff members visiting the prison had said that the detainees’ level of desperation is “unprecedented.”

4. Preserving the designation of “indefinite detention.”

The Obama administration also determined that 46 detainees can never be released, either because they are too dangerous, or because they cannot be charged with a crime and put on trial. On Tuesday, Obama said, “I mean, the notion that we’re going to continue to keep over a hundred individuals in a no man’s land in perpetuity … that is contrary to who we are, it is contrary to our interests, and it needs to stop.” But even if Guantanamo were to close, the Obama administration would not release these detainees. Instead, they would be sent to a federal prison, to be held indefinitely without trial on U.S. soil.

Former CIA Chief: Obama’s War on Terror Same as Bush’s, But With More Killing

President Barack Obama has closely followed the policy of his predecessor, President George W. Bush, when it comes to tactics used in the “war on terror” — from rendition, targeted killings, state secrets, Guantanamo Bay to domestic spying, according to Michael Hayden, Bush’s former director of the Central Intelligence Agency and the National Security Agency.

“But let me repeat my hypothesis: Despite the frequent drama at the political level, America and Americans have found a comfortable center line in what it is they want their government to do and what it is they accept their government doing. It is that practical consensus that has fostered such powerful continuity between two vastly different presidents, George W. Bush and Barack Obama, when it comes, when it comes to this conflict,” Hayden said Friday while speaking at the University of Michigan.

The comments come two months before the Nov. 6 elections, where Obama, a Democrat, faces off for re-election against GOP challenger Mitt Romney. And Hayden’s remarks give credence to what many who cared about the topic had already realized: Obama largely mirrors Bush when it comes to the war on terror.

Hayden, who oversaw the CIA’s use of torture techniques against detainees and the expansion of the NSA to illegally spy on American citizens, admitted to an initial skepticism of Obama. He also publicly criticized the administration in 2009 for making public the Bush-era legal memos that attempted to re-define torture as “enhanced interrogation techniques.”

But Hayden, in a nearly 80-minute lecture posted on C-Span, said Obama came to embrace Bush’s positions. Both Bush and Obama said the country was at war. The enemy was al-Qaida. The war was global in nature. And the United States would have to take the fight to the enemy, wherever it may be, he said.

“And yet, you’ve had two presidents, the American Congress, and the American court system, in essence, sign up to all four of those sentences,” Hayden said.

Moments later, Hayden added:

“And so, we’ve seen all of these continuities between two very different human beings, President Bush and President Obama. We are at war, targeted killings have continued, in fact, if you look at the statistics, targeted killings have increased under Obama.”

He said that was the case because, in one differing path between the two presidents, Obama in 2009 closed CIA “black sites” and ratcheted down on torturing detainees. But instead of capturing so-called “enemy combatants,” President Obama kills them instead, Hayden said.

“We have made it so politically dangerous and so legally difficult that we don’t capture anyone anymore,” Hayden said. “We take another option, we kill them. Now. I don’t morally oppose that.”

Obama’s kill list has even included American citizens.

Hayden noted Obama campaigned on promises to close the detention center in Guantanamo Bay, and to bring more transparency to government.

Obama failed to close Guantanamo and continued the use of the often-cited “state secrets” defense in court cases challenging the government’s policies on the war on terror.

“Despite a campaign that was based on a very powerful promise of transparency, President Obama, and again in my view quite correctly, has used the state secrets argument in a variety of courts, as much as President Bush,” Hayden said. He noted that he appreciated Obama’s invocation of the state secrets privilege, as Hayden himself was named as a defendant in some of the cases.

Hayden also noted that Obama, as an Illinois senator in 2008, eventually voted to legalize President Bush’s once-secret warrantless spying program adopted in the wake of the September 11, 2001 terror attacks. The measure also granted America’s telecoms immunity from lawsuits for their complicity in the spy program.

The law authorizes the government to electronically eavesdrop on Americans’ phone calls and e-mail without a probable-cause warrant so long as one of the parties to the communication is believed outside the United States. The communications may be intercepted “to acquire foreign intelligence information.”

“The FISA Act not only legitimated almost every thing president Bush had told me to do under his Article II authorities as commander in chief, but in fact gave the National Security Agency a great deal more authority to do these kind of things,” Hayden said.

The law, now known as the FISA Amendments Act, expires at year’s end. The Obama administration said congressional reauthorization was the administration’s “top intelligence priority,” despite 2008 campaign promises to make the act more privacy-friendly.

As for the election, Hayden indicated it may not matter, at least when it comes to anti-terrorism policy. He seemingly confirmed that the rock band the Who was correct when it blurted “meet the new boss, same as the old boss.”

Hayden, who said he was an adviser the Romney presidential campaign, said Romney would largely follow Obama’s same path, too, if Romney was elected.

“If we’re looking forward,” Hayden said, “I actually suspect there is going to be some continuity between a President Romney and and his predecessor, too, if that came to pass

US Spying on ‘Everyone’ Using Cameras ‘

TrapWire’ Software Links Civilian Cameras

The US surveillance state is big enough that most Americans are already well aware that they are being watched. A new revelation from WikiLeaks’ Stratfor Emails leak suggests it is even bigger than we thought.

According to those leaked emails, civilian CCTV cameras are being used by the Department of Homeland Security through a system called TrapWire, to spy on the whereabouts of everybody, all the time.

TrapWire is supposed to be “predictive” software, capable of telling just by looking at you if you’re a terrorist or not, and if you’re about to do something. The details of how it does that are scarce, as are details about the CIA-linked company Abraxas that created it.

Secretive programs involving secretive software with few details aren’t much to go by, but the reports are fueling considerable concern, in no small part because in this era of ever-increasing surveillance, virtually any intrusion on Americans’ privacy by the government is entirely plausible.

by Jason Ditz

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