Civil Liberties

Mark Fiore helps teach kids about the importance of warrantless wiretapping. (Hat tip to Bob Hagen.)

An article in The Progressive by Matthew Rothschild worries that the FBI’s InfraGard program is deputizing businesses, training them for martial law, and giving them a free pass to “shoot to kill.” Rothschild writes: The members of this rapidly growing group, called InfraGard, receive secret warnings of terrorist threats before the public does—and, at least on one occasion, before elected officials. In return, they provide information to the government, which alarms the ACLU. But there may be more to it than that. One business executive, who showed me his InfraGard card, told me they have permission to “shoot to kill” in the event of martial law.Nonsense. I’ve been a member of the Phoenix InfraGard Members Alliance for years. It’s a 501(c)(3) organization sponsored by the FBI whose members have been subjected to some rudimentary screening (comparable to what a non-cleared employee of the federal government would get). Most InfraGard meetings are open to the general public (contrary to Rothschild’s statement that “InfraGard is not readily accessible to the general public”), but the organization facilitates communications between members about sensitive subjects like vulnerabilities in privately owned infrastructure and the changing landscape of threats. The FBI provides some reports of threat information to InfraGard members through a secure website, which is unclassified but potentially sensitive information. InfraGard members get no special “shoot to kill” or law enforcement powers of any kind–and membership in the organization is open to anyone who can pass the screening. As Rothschild notes in the first sentence of his article, there are over 23,000 members–that is a pretty large size for a conspiracy plot. At one point in the article, Rothschild quotes InfraGard National Members Alliance chairman Phyllis Schneck referring to a “special telecommunications card that will enable your call to go through when others will not.” This is referring to a GETS card, for the Government Emergency Telecommunications Service, which provides priority service for call completion in times of emergency or disaster to personnel who are working to support critical infrastructure. There is a similar service for wireless priority (Wireless Priority Service), and yet another for critical businesses and organizations (like hospitals) which need to have their telecommunications service re-established first after a loss of service due to disaster (Telecommunications Service Priority). These programs are government programs that are independent of InfraGard, though InfraGard has helped members who represent pieces of critical infrastructure obtain GETS cards. The ACLU’s concern about InfraGard being used as a tip line to turn businesses into spies is a more plausible but still, in my opinion, unfounded concern. Businesses are not under any pressure to provide information to InfraGard, other than normal reporting of criminal events to law enforcement. The only time I’ve been specifically asked to give information to InfraGard is when I’ve been asked to speak at a regular meeting, which I’ve done a few times in talks that have been open to the public about malware threats and botnets. Check out the comments in The Progressive for some outright hysteria about fascism and martial law. I saw similar absurdity regarding the Department of Homeland Security’s TOPOFF 4 exercise, which was a sensible emergency planning exercise. Some people apparently are unable to distinguish common-sense information sharing and planning in order to defend against genuine threats from the institution of a fascist dictatorship and martial law. Now, I think there are plausible criticisms to be made of the federal government’s use of non-governmental organizations–when they’re used to sidestep laws and regulations like the Freedom of Information Act, to give lots of government grant money to organizations run by former government employees, to legally mandate funding of and reporting to private organizations and so forth. The FBI has created quite a few such organizations to do things like collect information about missing and exploited children, online crime, and so forth, typically staffed by former agents. But personally, I’ve not witnessed anything in InfraGard that has led me to have any concerns that it’s being used to enlist private businesses into questionable activities–rather, it’s been entirely devoted to sharing information that private businesses can use to shore up their own security and for law enforcement to prosecute criminals. UPDATE (February 9, 2008): The irony is that Matthew Rothschild previously wrote, regarding 9/11 truthers: We have enough proof that the Bush administration is a bunch of lying evildoers. We don’t need to make it up.He’s right about that, but he’s now helped spread nonsense about InfraGard and seriously damaged his own credibility. I find it interesting that people are so willing to conclude that InfraGard is a paramilitary organization, when it’s actually an educational and information sharing organization that has no enforcement or even emergency, disaster, or incident response function (though certainly some of its members have emergency, disaster, and incident response functions for the organizations they work for). UPDATE (February 10, 2008): I suspect tomorrow Christine Moerke of Alliant Energy will be getting calls from reporters asking what specifically she confirmed. I hope they ask for details about the conference in question, whether it was run by InfraGard or DHS, what the subject matter was, and who said what. If there’s actually an InfraGard chapter endorsing the idea that InfraGard members form armed citizen patrols authorized to use deadly force in time of martial law, that’s a chapter that needs to have its leadership removed. My suspicion, though, is that some statements about protection of infrastructure by their own security forces in times of disaster or emergency have been misconstrued. Alliant Energy operates nuclear plants, nuclear plants do have armed guards, and in Arizona, ARS 13-4903 describes the circumstances under which nuclear plant security officers are authorized to use deadly force. Those people, however, are thoroughly trained and regularly tested regarding the use of force and the use of deadly force in particular, which is not the case for InfraGard members. UPDATE (February 11, 2008): Somehow, above, I neglected to make the most obvious point–that the FBI doesn’t have the authority to grant immunity to prosecution for killing. If anyone from the FBI made that statement to InfraGard members, they were saying something that they have no authority to deliver on. UPDATE (February 12, 2008): I’ve struck out part of the above about the ACLU’s concern about spying being unfounded, as I think that’s too strong of a denial. There is a potential slippery slope here. The 9/11 Commission Report pointed to various communication problems that led to the failure to prevent the 9/11 attacks. These problems included failure to share information (mainly from the CIA to the FBI and INS), failure to communicate information within the FBI (like Phoenix Special Agent Ken Williams’ memo about suspicious Middle Easterners in flight schools), and failure to have enough resources to translate NSA intercepts (some specific chatter about the attacks was translated after the attacks had already occurred). As a result, the CIA has been working closely with the FBI on counterterrorism and counterintelligence at least since 2001. (Also see Dana Priest, “CIA Is Expanding Domestic Operations,” The Washington Post, October 23, 2002, p. A02, which is no longer available on the Post’s site but can be found elsewhere on the web, on sites whose other content is so nutty I refuse to link, as well as this January 2006 statement from FBI Director Robert Mueller on the InfraGard website, which includes the statement that “Today, the FBI and CIA are not only sharing information on a regular basis, we are exchanging employees and working together on cases every day.”) The slippery slope is this–the CIA is an organization which recruits and develops in its officers a sense of flexible ethics which has frequently resulted in incredible abuses, and which arguably has done more harm than good to U.S. interests. (My opinion on the CIA may be found in my posts on this blog labeled “CIA”; I highly recommend Tim Weiner’s Legacy of Ashes: The History of the CIA.) Some of that ethical flexibility may well rub off on FBI agents who work closely with CIA case officers. (The FBI itself has also had a history of serious abuses, an objective account of which may be found in Ronald Kessler’s book The Bureau: The Secret History of the FBI.) And then, that same ethical flexibility may rub off on InfraGard members as a result of their relationships with the FBI (and potentially relationships with the CIA, as well). The intelligence community seems to have a hunger for more and more information from more and more sources, but it is already awash in a sea of information that it has trouble processing today. (It doesn’t help that the Army fires direly needed Arabic translators because they are gay.) The need is to accurately assess the information that it has, and ensure that bits and pieces aren’t cherry-picked to produce desired conclusions, as well as ensure that information isn’t sought or assembled to serve personal and political ends of particular interests rather than combatting genuine threats to the country and its citizens. My recommendation is that all InfraGard members read Kessler’s The Bureau, Weiner’s Legacy of Ashes, and view the film that won the 2007 Academy Award for best foreign film, “The Lives of Others,” to help innoculate them against such a slippery slope. UPDATE: Amy Goodman interviewed Matt Rothschild for “Democracy Now!” on Wisconsin Public Television, in which it is pretty clear to me that Rothschild is exaggerating something he doesn’t understand–what he cites as evidence doesn’t support what he claims. Here’s a key excerpt, see the link for the full transcript: MR: […] And one other member of InfraGard [Christine Moerke of Alliant Energy] confirmed to me that she had actually been at meetings and participated in meetings where the discussion of lethal force came up, as far as what businesspeople are entitled to do in times of an emergency to protect their little aspect of the infrastructure. AG: But just to clarify, Matt Rothschild, who exactly is empowered to shoot to kill if martial law were declared? The business leaders themselves? MR: The business leaders themselves were told, at least in this one meeting, that if there is martial law declared or if there’s a time of an emergency, that members of InfraGard would have permission to protect—you know, whether it’s the local utility or, you know, their computers or the financial sector, whatever aspect. Whatever aspect of the infrastructure they’re involved with, they’d have permission to shoot to kill, to use lethal force to protect their aspect of the infrastructure, and they wouldn’t be able to be prosecuted, they were told. […] You know, this is a secretive organization. They’re not supposed to talk to the press. You need to get vetted by the FBI before you can join it. They get almost daily information that the public doesn’t get. And then they have these extraordinary, really astonishing powers being vested in them by FBI and Homeland Security, shoot-to-kill powers. I mean, this is scary stuff. MR: The business leaders themselves were told, at least in this one meeting, that if there is martial law declared or if there’s a time of an emergency, that members of InfraGard would have permission to protect—you know, whether it’s the local utility or, you know, their computers or the financial sector, whatever aspect. Whatever aspect of the infrastructure they’re involved with, they’d have permission to shoot to kill, to use lethal force to protect their aspect of the infrastructure, and they wouldn’t be able to be prosecuted, they were told.It looks to me like the following transformation has occurred: 1. At a DHS conference on emergency response, somebody asks if owners of critical pieces of infrastructure should be expected to use deadly force if necessary to protect it (e.g., a nuclear power plant). 2. Somebody at DHS answers yes. They may even add that in some cases the law provides specific justification for use of deadly force (as in the Arizona statute I cite above). 3. Matt turns that into a general right to “shoot-to-kill” in times of martial law by any InfraGard member. 4. The blogosphere turns that into roving citizen patrols unleashed on the nation as the Bush hit squad after declaration of martial law. I don’t see his key source–Christine Moerke–confirming anything beyond #1 and #2. Note other exaggerations and contradictions–Rothschild claims that InfraGard is highly secretive and selective, yet has quickly grown to over 23,000 members and has multiple public websites. He fails to note that most InfraGard meetings are open to the general public, or that it has been discussed in many articles in the national press over the last decade. Rothschild speaks of “business leaders,” which the blogosphere has turned into “CEOs,” yet I suspect the most common “business leader” represented in InfraGard is an IT or physical security manager. UPDATE (February 15, 2008): The FBI has issued an official response to Rothschild’s Progressive article (PDF), which says, in part: In short, the article’s claims are patently false. For the record, the FBI has not deputized InfraGard, its members, businesses, or anything else in the program. The title, however catchy, is a complete fabrication. Moreover, InfraGard members have no extraordinary powers and have no greater right to “shoot to kill” than other civilians. The FBI encourages InfraGard members – and all Americans – to report crime and suspected terrorist activity to the appropriate authorities.The FBI response also states that Rothschild has “refused even to identify when or where the claimed ‘small meeting’ occurred in which issues of martial law were discussed,” and promises to follow up with further clarifying details if they get that information. UPDATE (February 25, 2008): Here’s another blogger with a rational response to The Progressive article. UPDATE (March 2, 2008): Matthew Rothschild has responded to the FBI’s response on Alex Jones’ Info Wars blog, and he stands behind every word of his original article. He doesn’t display any knowledge of or response to any of the criticisms I’ve offered. ...

I agree with most of the positions taken by the Institute for Justice, an organization that fights for economic rights of entrepreneurs (especially small businesses fighting ridiculous regulations designed as barriers to entry), for freedom of speech, against eminent domain abuse, and for school choice. But I don’t understand its argument against Arizona’s Clean Elections law, which strikes me as conflicting with some of its other arguments. Tim Keller, head of the Arizona chapter of the Institute for Justice, makes the following argument: ...

Today’s Washington Post reports: The FBI, which has had trouble keeping track of its guns and laptops, also has a chronic problem paying its phone bills on time, according to audit results released today. Telephone companies have repeatedly cut off FBI access to wiretaps of alleged terrorists and criminal suspects because of the bureau’s failure to pay its bills, the audit found. The report by Justice Department Inspector General Glenn A. Fine also found that more than half of the nearly 1,000 telecommunications bills reviewed by investigators were not paid on time, including one invoice for $66,000 at one unidentified field office. ...

Mitt Romney made his long-awaited “JFK-style” speech, which was hoped to alleviate concerns that he would rely on Mormon religious authority as the ultimate authority in making political decisions rather than the Constitution. His statement to that effect was rather weak, however, and he never actually came out and said that he would rely on the Constitution as the ultimate authority for his political decisions. He stated that “I do not define my candidacy by my religion. A person should not be elected because of his faith nor should he be rejected because of his faith.” But he did assert that lack of faith was grounds for rejection of a candidate, and made the absurd statement that “Freedom requires religion, just as religion requires freedom. Freedom opens the windows of the soul so that man can discover his most profound beliefs and commune with God. Freedom and religion endure together, or perish alone." Romney did say (as the Arizona Republic reported, but CNN did not, in the above link) that “Let me assure you that no authorities of my church, or of any other church for that matter, will ever exert influence on presidential decisions. Their authority is theirs, within the province of church affairs, and it ends where the affairs of the nation begin.” Conversely, the Republic failed to report Romney’s “freedom requires religion” statement. For Romney, it is clear that he does not agree with Jefferson, Madison, and the Constitutional Convention that the First Amendment protects the nonbeliever as well as the believer (as is clear from their writings, their actions as president, and from earlier drafts of the First Amendment that were rejected). Instead, his version of the Constitution requires everyone to belong to some religion, whether it’s a cult founded by a con artist or an ancient world religion. He thinks that freedom and religion always must coexist, despite thousands of years and millions of people worth of evidence to the contrary. (Though perhaps his “requires” is a moral claim, that in order to be worthwhile or good, those things must come together–in which case I’d agree that religion requires freedom, but not that freedom requires religion.) The Republic also noted another serious defect in Romney’s comprehension of the First Amendment: At the same time, he decried those who would remove from public life “any acknowledgment of God,” and he said that “during the holiday season, nativity scenes and menorahs should be welcome in our public places.”Such scenes are already welcome in public places, so long as those public places are equally open to religious and secular displays by believer and nonbeliever alike. The only thing that is forbidden is exclusively allowing displays by a particular religion, which of course is what many Christians are actually demanding. For such an exclusive right favoring a particular religion or religion over nonreligion, displays must be on private property. It’s a simple and fair concept, but the religious right repeatedly misrepresents it and falsely claims to be oppressed because they aren’t given special privileges that no one else has, and whines and complains when something happens like a Hindu giving a prayer before Congress. And nobody has tried to prevent Romney, Giuliani, and the rest of the presidential candidates from their repeated references to God, despite the transparent phoniness of most of their claims to faith. It’s clear that most of them are simply signalling to the religious right that they will continue to be granted special preferences, rather than truly displaying what they believe–their records of political expedience and lack of integrity speak more loudly than their words. With people of such opinions in political power, explicitly willing to deny political freedoms to those who are nonbelievers and grant special privileges to anything calling itself a religion, it should not be surprising that some people will, out of pure expedience and self-defense, take steps to convert atheism into a religion. Yet that should be unnecessary under our Constitution, as a Washington Post editorial on Romney’s speech agrees. UPDATE: DI Fellow John Mark Reynolds comments on and posts the entirety of Romney’s speech, which is certainly better than the quotes above would suggest–he does criticize the establishment of religion in the Massachusetts colony, for example: “Today’s generations of Americans have always known religious liberty. Perhaps we forget the long and arduous path our nation’s forbearers took to achieve it. They came here from England to seek freedom of religion. But upon finding it for themselves, they at first denied it to others." UPDATE: P.Z. Myers and Greg Laden each give their take on Romney’s speech. And here’s Christopher Hitchens’ view. ...

Dan Smith has written a very nice critique of Rep. Jane Harman’s attempt to create a new McCarthyism with her HR1955, the “Violent Radicalization and Homegrown Terrorism Act." UPDATE (July 18, 2009): I must agree with commenter Jack–HR1955/S.1959 doesn’t criminalize anything or create any law enforcement powers for the commission that it orders to solicit testimony and write a report. There’s nothing in the bill that amends the Homeland Security Act to add any new crimes or enforcement capabilities. No doubt the commission will make legislative recommendations (and I think having such a commission is a bad idea), but this bill itself doesn’t do so. ...

Declan McCullagh live-blogged the U.S. House of Representatives hearing on “Yahoo Inc.’s Provision of False Information to Congress," which was about an incident in which Yahoo responded to a subpoena from the Chinese government for the identity of a subscriber who turned out to be a Chinese reporter, who was convicted of leaking “state secrets." Anybody note anything ironic or hypocritical in these excerpts? 10:20 a.m. ET: Apparently, the Beijing State Security Bureau provided a document to Yahoo–similar to the FBI’s national security letters–to Yahoo China on April 24, 2004. It invoked the term “state secrets” when demanding information about Shi Tao. Callahan never saw the document, which was written in Chinese, before testifying last year. Lantos says Callahan should have demanded a translation before his testimony, and Yahoo should have known that any request invoking state secrets is suspect because “state secrets is a trick phrase used to fabricate phony but devastating (charges against an) innocent person who shares our values in an open and free society." 10:30 a.m. ET Now the two Yahoo execs are being asked to apologize to Shi Tao’s mother, who is sitting in a front row of the hearing room. Lantos: “I would urge you to beg the forgiveness of the mother whose son is languishing behind bars thanks to Yahoo’s actions.” I wonder if Lantos and other Patriot Act supporters will apologize to Americans like Brandon Mayfield (falsely jailed under the Patriot Act) or Sami al-Hussayen (a Webmaster who provided hyperlinks to Muslim sites and was prosecuted under the Patriot Act). 10:45 a.m. ET Rep. Chris Smith, the New Jersey Republican who was chairman of the Foreign Affairs panel last year, is now speaking. He’s saying that “Yahoo knew the police requests had to do with ‘state secrets.’” That may not be as descriptive as he (and the other panelists) seem to think. It seems to me that it’s a catchall term that’s probably invoked regularly by China’s security apparatchiks. It’s not like the police requests said “give us this information so we can put an innocent journalist in jail." 12:20 p.m. ET Now it’s Rep. Dana Rohrabacher, a California Republican: “Were any of them fired?” He’s referring to Yahoo employees. Rohrabacher again: “Are you going to comply with requests from authoritarian governments in the future?” Callahan replies: “We are looking at ways to operationally and legally structure the entity… so we would not have to do that." 12:52 p.m. ET Lantos again, to Yahoo’s Callahan, excerpted: “Morally you are pygmies… An appallingly disappointing performance. I think we cannot begin to tell you how disappointing Mr. Yang’s and your performance was… attempt to obfuscate and divert… outrageous behavior."Why don’t we see some of this moral outrage from Congress directed at the executive branch of the United States, at a time when 64% of the country disapproves and 50% of the country strongly disapproves of the president’s performance (beating Nixon’s worst performance)?

The Maricopa County Sheriff’s Office last night arrested Michael Lacey and Jim Larkin, owners of the Phoenix alternative newspaper New Times, for publishing a story under their bylines which revealed the contents of a grand jury subpoena received by the paper. Revealing the contents of a subpoena is a misdemeanor. Lacey and Larkin, who have long battled with Maricopa County Sheriff Joe Arpaio and County Attorney Andrew Thomas, wrote a story about the subpoena because they considered it an attack on the freedom of the press. The subpoena demanded records relating to all visitors to the New Times website over the last four years, including information about what websites they visited prior to the New Times website (i.e., referral URLs)–essentially, the request is for the complete website logs for the newspaper’s website for the last three years. It also demanded reporters’ notes and any other documents pertaining to stories about Arpaio for the last three years. Lacey and Larkin wrote that they believed their article to violate the law, but they published it as a form of civil disobedience in order to challenge the unconstitutional abuses of Arpaio, Thomas, and prosecutor Dennis Wilenchik. The trigger for the events which led to the subpoena (and the apparent event of interest given the dates in the subpoena) appears to be a New Times article from July 8, 2004 which commented on Arpaio’s commercial real estate investments and ended with Arpaio’s home address, but the paper’s criticism of Arpaio for mismanagement, inmate deaths, and grandstanding in front of TV cameras goes back many years more. Sheriff Joe used to have a dialup Internet account with Primenet, my former employer. At one point one of his assistants, Lisa Allen, contacted Primenet to attempt to get information about a subscriber who had left a critical comment on his website, without a subpoena. We declined to provide such information without a subpoena. UPDATE (October 19, 2007): County Attorney Andrew Thomas has announced that he has dropped the charges against New Times and dismissed special prosecutor Dennis Wilenchik. UPDATE (November 13, 2007): New Times ran an October 25 followup story. UPDATE (October 28, 2008): It has come out that the order for Lacey and Larkin’s arrest was given by Arpaio’s chief deputy David Hendershott, whom Arpaio allowed to retire so he could receive a $43,000/year pension, and hired him back as a civilian at his same $120,000/year salary. Hendershott now makes $177,486/year working for Arpaio. ...

Former Qwest CEO Joseph Nacchio, found guilty of insider trading in April, is claiming in his appeal that part of the reason Qwest stock dropped in value is that the NSA cancelled some lucrative contracts with the company as punishment for its failure to cooperate in illegal warrantless wiretapping (unlike AT&T and Verizon). The Bush administration is pushing for retroactive immunity to be granted to AT&T and Verizon for its participation in these unconstitutional programs by threatening to veto any surveillance bill that doesn’t include such immunity. If the Democrats were smart, they’d go ahead and send him a surveillance bill without the immunity, and then criticize him when he vetoes it for taking action that is going to kill Americans. ...

CIA Director (and former head of the NSA) Gen. Michael Hayden is unhappy with CIA Inspector General John Helgerson’s work uncovering abuses at the CIA, so he’s ordered his own investigation of the IG, including an examination of the office’s confidential files. That’s sure to put a chill on employee cooperation with or reporting of abuses to the IG’s office.