From Roger Fitch and my Friends down under at Justinian...

You're under surveillance

ROGER FITCH ESQ • MONDAY, AUGUST 12, 2013

Attorney General Holder promised the Russians that the US wouldn't torture Snowden, and they still wouldn't hand him over ... NSA's "network security agreements" with helpful telecoms ... Stacking the Foreign Intelligence Surveillance Court with Republicans ... Roger Fitch, Our Man in Washington, on the inner workings of a non-functioning democracy 

"Gentlemen do not read each other's mail" - Henry L. Stimson, Secretary of State (1929) 

"You need a haystack to find a needle" - Gen. Keith Alexander, Director, National Security Agency

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IT was a surreal Post-Cold War moment, not unlike the day a humble Donald Rumsfeld visited the former KGB torture site in Vilnius, Lithuania - now a memorial to Soviet brutality - as the CIA tortured Pentagon captives nearby.

This time the irony lay in a US Attorney General writing to his Russian counterpart - whose president is a retired KGB Lt. Col. - solemnly assuring him that the US wouldn't torture or kill Edward Snowden if he returns to the US.   

AG Eric Holder also offered to issue Snowden a special travel document for the US - how nice is that?

Even if Russia had an extradition treaty with the US, some countries reject extradition to America on the basis of its civil and military justice systems.  

In 2011, the Canadian courts refused to extradite Omar Khadr's brother Abdullah, and last month a Dutch court denied extradition of a terrorist suspect possibly tortured in Pakistan with US connivance.  

The flight of Snowden - and the secrets he holds about National Security Agency surveillance (more here) - has led to an unusual outbreak of interesting political journalism in the US. 

Snowden: the US promised the Russians he would not be tortured

The Atlantic and FindLaw had ideas for avoiding surveillance.  

More suggestions are here, but they're all doubtful in light of NSA's just-disclosed XKeyscore program.   

The Guardian noted that the encryption services used by many people (see last post) can be bypassed by NSA through its collaboration with Microsoft.

Both organisations pay dubious "bounties" to freelance hackers who find flaws in computer codes, theirs or - in NSA's case - someone else's . 

The Washington Post described the "Network Security Agreements" the NSA enters with helpful telecoms, designed to make electronic communications insecure enough for the agency to save, record and read them unhindered.

It seems one of the companies signing-up was Telstra, at the time it was government controlled. 

It's no wonder the telecoms participate: surveillance deals are lucrative. Even the British GCHQ is getting paid by the NSA.  

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Chief Justice Roberts (right): stacking the FISC

IN my July post I mentioned that the Foreign Intelligence Surveillance Court, which unfailingly approves NSA requests, is packed with Republicans friendly to the security state.

Chief Justice John Roberts is doing the packing.  

More here and here.

Some say the real problem is a lack of adversarial proceedings in the FISA court, a view backed by two former members of the court here and here. 

Meanwhile, NSA has sent spooks to Capitol Hill to testify about the degree of separation among targets:

"A three-hop query means that the NSA can look at data not only from a suspected terrorist, but from everyone that suspect communicated with, and then from everyone those people communicated with, and then from everyone all of those people communicated with."  

Ars Technica has more. 

When justifying itself, NSA relies on its own unique definitions of common words and phrases such as "collect" and "foreign target".  

The agency resists FOI requests by resorting to the defence of incompetence, pleading aninability to search its own email database. 

ProPublica has a guide to the pending NSA cases, including a new lawsuit against NSA in federal district court in California, more here.  

It's not often you get the Unitarian Church and the NRA on the same side in a case.

The Electronic Privacy Information Center (EPIC) is attempting to take the NSA directly to the Supreme Court in a mandamus action. Former Nixon counsel John Dean reckons it's a good idea.  

*   *   *

NSA: trouble searching its own databaseLAST May it was revealed that the Department of Justice had secretly seized phone records of the Associated Press, ostensibly to investigate leaks about the CIA.

Now, a more serious assault has been made on the media, in two federal court cases involving journalists.  

In the first case, reported in May, the FBI obtained a search warrant for the email account ofFox News reporter James Rosen, based on the "probable cause" that he had violated theEspionage Act.

It's the first time the government has suggested it's an espionage violation for an ordinary journalist to communicate with his whistleblowing source. 

Secrecy News has more. 

In the other case, a divided 4^th Circuit panel ordered James Risen of the NY Times to testify in the criminal trial of a former CIA agent, finding there's no journalist privilege.  

There's now an en banc appeal. 

It's enough to put US newspapers off reporting. In fact, as Kevin Jon Heller notes, it leaves the anonymous, WikiLeaks, model of investigative reporting as the only viable way to report on information the government classifies secret. 

A third trial threat to journalism has been the "Aiding the Enemy" charge against US soldier Bradley Manning, where the government argued it was "aiding the enemy" to release information to WikiLeaks that might be read by Osama bin Ladin, even if he read it in theNew York Times. 

The "Aiding the Enemy" charge depended on a single inapposite Civil War case.

Manning was acquitted of this particular charge, but several Espionage Act convictions were recorded, more here. 

 *   *   *

Carter: worried about democracy in America

DISSENT has broken out at the Lawfare blog.

Law profs Ken Anderson and Peter Margulies, joined by Lawfare's resident bush-lawyer Ben Wittes, filed an amicus brief in the DC Circuit's pending en banc consideration of Al-Bahlul, the military commission appeal.  

The terror-tragics support the government's position that the conspiracy conviction can be sustained even though conspiracy isn't a war crime.

On the other side, Lawfare's Steve Vladeck agreed with Opinio Juris's Kevin Jon Heller, who ridiculed the filing here and here.  

Margulies responded here, but Heller and Vladeck had nearly the last word.

Meanwhile, the Pentagon's man for Detainee Policy, William Lietzau - who helped George Bush set up the whole detention-commission apparatus - retired, and announced thatGuantánamo detainees should have been kept in Afghanistan and treated as prisoners of war all along. 

Perpetual detentions, trumped-up laws of war, assassinations and universal surveillance were all too much for Jimmy Carter.

In July he was quoted as saying, "America does not at the moment have a functioning democracy".