Tuesday, July 30, 2013

It was Saddam's Sword

Yesterday the Department of Homeland Security (DHS) issued a press release stating that it had returned a sword "looted in 2003 from Saddam Hussein's personal office in Baghdad" to the government of Iraq at "a private ceremony" and the residence of the Iraqi Ambassador to the United States in D.C.  This, in fact, is the very same Saddam sword I had discussed in a post last year called "Actually, That Might be Saddam's Sword After All" which was a response to Spencer Ackerman's piece "Sorry, That's Not Really Saddam's Sword You're Buying."

Return of Saddam Sword to Iraq, July 2013
As background, apparently after hearing that it had been auctioned in early 2012 in New Hampshire (the auction house description has been taken down, but thanks to the Internet Archive the text is here), the U.S. Immigration and Customs Enforcement's Homeland Security Investigations initiated an investigation and "seized the sword as a possible Iraqi cultural artifact."

The investigation concluded based on an examination -- involving the State Department and the Department of Defense -- of the "regulations surrounding the importation of war trophies from Iraq" that "this ornate ceremonial sword cannot be considered a modern battlefield weapon and is therefore not eligible to be exported as a war trophy." It also, rather importantly, concluded that the "historic sword" constituted Iraqi cultural property under Office of Foreign Assets Control regulations.

I will have more to say on the legal issues soon, but for now suffice it to say that the DHS action raises some problems and questions, not the least of which is, if DHS is treating that Saddam sword as "looted" cultural property that needs to be returned to Iraq in order to "ensure that current and future generations aren't robbed of their nation's history," what about this other Saddam sword on display at the National Infantry Museum in Columbus, GA?

National Infantry Museum, "Exhibit: 'Saddam Hussein Sword & Rifle"
A request to the National Infantry Museum for verification that this sword is still on display went unanswered.  UPDATE: The National Infantry Museum has confirmed that the exhibit containing Saddam's sword remains just as it is pictured above and that there are no plans to change it in the foreseeable future.

Wednesday, July 24, 2013

More Misleading Information from ODNI on NSA Telephone Metadata Collection

In its ongoing publicity offensive, the administration has put forward more detailed public arguments to justify the NSA obtaining and storing vast quantities of telephone metadata of U.S. persons in purported reliance on § 215, the "business records" provision, of the Patriot Act. A central pillar of the NSA/DOJ/ODNI argument is that government storage of this metadata is necessary because the telecommunications companies otherwise would not retain it. This argument is, at best, disingenuous and misleading.

In one of the most detailed defenses of the telephone metadata program, for example, ODNI General Counsel Robert Litt asserted last week in a prepared speech (see text or video clip) that "telephone companies have no legal obligation to keep this kind of information" ("information" he defines as "the number calling, the number being called, and the date, time and duration of the call") and that telephone companies destroy this data "after a period of time determined solely by their own business purposes" (emphasis added).  This is demonstrably inaccurate.  See, for example, the "legal obligation" found at 47 C.F.R. § 42.6, a regulation which requires that telephone companies:
retain for a period of 18 months such records as are necessary to provide the following billing information about telephone toll calls: the name, address, and telephone number of the caller, telephone number called, date, time and length of the call.  

Not only does this federal regulation provide a legal retention obligation, but it is also unrelated to the "business purposes" of the telephone companies and in fact was promulgated by the FCC at the specific request of the DOJ in order to aid in terrorism investigations.  The retention period had previously been six months, but the DOJ petitioned the FCC to extend it precisely because such telephone records "are often essential to the successful investigation and prosecution of today's sophisticated criminal conspiracies relating, for example, to terrorism . . . and espionage." The FCC therefore extended the legal retention period for as long as the DOJ said was necessary.

DOJ/NSA/ODNI may believe that this regulation, which became effective in 1986, is outdated or no longer adequate, but pretending that it (and many similar state regulations) doesn't exist or that those agencies couldn't have done more to update or expand this regulation to suit the Executive branch's current "needs" undermines their argument.

In fact, in early 2006, the FCC itself proactively solicited comments on the 18-month retention regulation and the DOJ submitted these comments which -- in light of what we know now and the government's current arguments -- is rather remarkable.

First, the DOJ's comments are dated April 28, 2006, which was reportedly just a month before the DOJ/FBI secured the first Foreign Intelligence Surveillance Court order for bulk collection of U.S. telephone metadata for the NSA under the "business records" provision.

Second, while the DOJ noted problems with the regulation (including that "some" phone companies read it narrowly and argued it would not apply if certain billing methods were used) the DOJ nevertheless stressed the regulation's continuing importance for counterterrorism, stating that telephone records were a "critical tool in the fight against global terrorism" that had "enabled . . . national security agencies to prevent terrorist acts and acts of espionage." Moreover, the DOJ stressed its role in setting the legal retention period at 18 months.

Third, the DOJ in fact suggested -- in a footnote, near the end -- that the FCC "should explore" whether "the existing 18-month rule should be extended," yet surprisingly the DOJ did not forcefully argue for such an extension.  You can decide for yourself, but the DOJ's comments don't read to me like they were written by the same DOJ that was simultaneously arguing to a secret court that the need to retain the telephone data longer than 18 months was so crucial and exigent that it necessitated the extraordinary remedy of ordering telecommunications companies to provide all telephone metadata in the United States to the NSA in reliance on a breathtakingly broad reading of "relevant" in a statutory text.

And of course, members of Congress have questioned whether the extended retention is really as important as the NSA claims, as Senators Udall and Wyden have stated, "the NSA still has not provided us with any examples of instances where it relied on its bulk collection authority to review records that the relevant phone company no longer possessed."

Lastly, the FCC's regulatory power over such records highlights sharply conflicting views within the government about the nature and value of such data that have been largely ignored.  DOJ/NSA/ODNI have gone to great lengths to downplay the importance of "telephony metadata" -- "it's just metadata, it's not content, it's like the information on the front of an envelope, it's not Constitutionally protected, there's no expectation of privacy," they say. Yet, Congress and the FCC have been working for years to protect the "confidentiality" of such information under the name "Customer Proprietary Network Information" (CPNI). The statutory definition is at 47 U.S.C. § 222(h), but in the plain language of the FCC: "Practically speaking, CPNI includes information such as the phone numbers called by a consumer; the frequency, duration, and timing of such calls; and any services purchased by the consumer, such as call waiting. CPNI therefore includes some highly-sensitive personal information" (emphasis added).

The issue of bulk telephone metadata collection is undoubtedly complex and difficult to simplify, but the DOJ/NSA/ODNI efforts to "explain" and justify the program and to lay out the "facts" (which repeatedly seem to be half-truths) is not creating trust, it's undermining it.

Sunday, July 14, 2013

Abbottabad Commission Report Confirms Seized Bin Laden Documents in Pakistan

The recent leak of the Abbottabad Commission report (available here), provides a brief confirmation that Pakistan is in custody of additional documents from the Bin Laden compound left behind by U.S. forces following the May 2011 raid.  Paragraph 26 of the leaked report, for example, notes (emphasis added):
In addition, the Commission reviewed documents submitted by different government agencies, as well as those recovered from the OBL Compound in Abbottabad. . . . Some of the very extensive evidence collected from the OBL Compound was examined and several technical discussions were held with experts. 
Earlier reports (discussed here) had indicated that as many as 187,000 documents were recovered by the Pakistani government from the Abbottabad compound that reportedly included Bin Laden "diaries" and correspondence.

Meanwhile, no additional documents seized from the compound by U.S. forces have been released beyond the original 17 documents made public last year, although there have been some indications that more are being considered for release as well as additional calls on the administration to release them.

Thursday, July 11, 2013

Criminal Document Disclosures & Foreign Asylum: Is Edward Snowden Christoph Meili?

As the saga of whether Edward Snowden will accept an offer of asylum in Latin America continues, his situation allows some comparison to the fascinating story of Michel Christopher Meili.

Who's Meili?

Is there an EFF sticker on that volume?
Photo by Gisela Blau
In brief, Meili was a 29-year old Swiss citizen and an employee of a private company with significant connections to his government - the Union Bank of Switzerland. In 1997 Meili was a security guard, who happened upon 2 carts full of Holocaust-era banking documents related to Jewish clients of UBS that were slated for destruction. Inspired by "Schindler's List," Meili removed several volumes of the documents from his employer's possession. Instead of going directly to the authorities, he instead disclosed the documents to outside sources.

As a result, not only did Meili lose his job, but he was also under investigation by Swiss authorities for violating Swiss law.  Moreover, according to Meili's testimony in a U.S. Senate hearing (available here), after Swiss police took possession of the documents, they told Meili that the Swiss government was treating the documents as "classified," despite the fact that they were UBS documents, and that they "would never be seen by people 'outside Switzerland.'"

Finally, while Meili believed he was exposing an act of destruction that was, or should have been, illegal, the Swiss police told him that they had concluded that UBS had done nothing wrong.

Meili testified
One of the things that I have learned in these last few months is that there are certain powers in Switzerland that do not want to see the Swiss Banks and our government exposed for what they did during the Holocaust and that they will do anything - including destroying documents, restricting and controlling Police investigations, hiding/burying evidence and lying publicly.
The reason why Meili gave testimony to the U.S. Congress was that while he was temporarily in the United States, Sen. Alfonse D'Amato organized a Senate hearing about, and including, Meili.  D'Amato expressly acknowledged that Meili "today is under investigation for violating Swiss bank secrecy laws for disclosing the records" and that he had also received threats against him in Switzerland by individuals opposed to his actions (no doubt in the same vein as disturbing statements about what should happen to Snowden in the comments section of many articles about him).

The Senate hearing was designed to assess what actions the United States could take to protect Meili.  Congress determined that although Meili did "not meet the necessary criteria for permanent residency under any existing categories" under U.S. law, that Meili nevertheless deserved sanctuary in the United States.  Therefore Congress passed a special law, Private Law 105-1 that granted Meili, his wife, and his children permanent residency in the United States "[n]otwithstanding any other provision of law."

The law specifically cites the fact that Meili was "interrogated by the local Swiss authorities who tried to intimidate him by threatening prosecution for his heroic actions."  President Clinton signed the law on July 29, 1997.  According to a spokesperson, President Clinton, after reviewing the case, decided that it was "appropriate" that Meili be given permanent residence in the United States.

The actions of the United States in the Meili affair could therefore provide a model for Venezuela, Nicaragua, or Bolivia in granting Snowden asylum. On the issue of whether Snowden would technically qualify as a refugee under international law, for example, see "Snowden's asylum case" by Jaya Ramji-Nogales here. Regardless of the merits of Snowden's case under current international or domestic law, however, one of those countries that have offered him asylum could simply follow the U.S. example and make Snowden's asylum a special case.

As to the more substantive similarities between the actions of Snowden and Meili, to be absolutely clear, I am not drawing any comparison between the NSA surveillance programs and the Holocaust.  I am comparing, however, the decision to grant "asylum" in some form to a foreign citizen who was under active investigation for violating the laws of his country and violated his obligations to his employer in order (1) to disclose ongoing NSA surveillance programs versus (2) to disclose historical banking records that may have been relevant to individual ownership claims for property plundered by the Nazis a half a century earlier. That comparison can cut in many different ways depending upon one's perspective (e.g., how one weighs the severity of the crime v. the importance of the disclosure) and the two cases are distinguishable in many ways (e.g., despite the investigation, Switzerland had not cancelled Meili's passport or sought extradition).

The point is that comparing Snowden with Meili is another illustration that the Snowden affair is clearly not as simple as upholding the "rule of law" as President Obama asserted.  The most striking example of the contrast is in the statements of Sen. Charles Grassley who has stated about Snowden that "I believe that whatever the law requires, just like anybody that breaks the law, [Snowden] needs to be prosecuted" and that "I suppose it gets down to - did he break a law? - I think it's pretty obvious he did."  The very same Sen. Grassley, during the 1997 Senate hearing on Christoph Meili, gave this rather remarkable statement which deserves reprinting:
The situation we have here with Mr. Meili, albeit everything that he has brought to our attention has worldwide implications, but a person like him acted out of bravery, or maybe the bravery comes after he has acted because he has had to withstand the mental torture of what has gone on since then. But it reminds me of a lot of things that happen in our own Government, and I realize his is a private sector situation, but I like to think that we keep our Federal Government honest when we have people in our Government who, when something is wrong, will be willing to come forward and say what is wrong.
We speak of these people in our Government as whistleblowers. Maybe, originally, that was to denigrate them, but as far as I am concerned the word "whistleblower" is a description of somebody who wants to seek the truth, who wants to make sure that all of the facts and circumstances are known so that a wrong can be corrected.
*   *   *   * 
Well there is a lesson to all of us in the Congress of the United States when we have an example like this before us that we should not be denegrating people who seek the truth. We should be helping them be protected, we should help them get their story out, and we should help them make sure that they are not harmed economically or physically, or even professionally, because of seeking the truth.
Now, I know in some instances not every whistleblower has a credible story, so you do have to be circumspect to the extent to which we investigate every complaint that comes to our attention. But it seems to me that we ought to be honoring people who seek the truth, as Mr. Meili has sought the truth, and to expose wrongdoing. That is my interest in this. Besides helping Mr. Meili, it is my interest in also making sure that we are very consistent in the Congress of the United States in encouraging whistleblowers to come forth with information when something is wrong, because we do not have the time in the Congress to know where every skeleton is buried in every closet.