Edward Snowden, American Hero

I missed this last week, but this is great news:

In a major vindication for Edward Snowden — and a blow for the national security policy pursued by Republicans and Democrats alike — the U.S. Court of Appeals for the Second Circuit ruled Thursday that the National Security Agency’s metadata collection program is unlawful. This is the most serious blow to date for the legacy of the USA Patriot Act and the surveillance overreach that followed 9/11.

The central question depended on the meaning of the word “relevant”: Was the government’s collection relevant to an investigation when it collects all the metadata for any phone call made to or from anywhere in the U.S.?

The court said no. That was the right decision — not so much because it protects privacy, as because it broke the bad precedent of secret law created by the NSA and endorsed by the secret national security court known as the Foreign Intelligence Surveillance Court.

The first striking thing about the court’s opinion was how openly it relied on Snowden’s revelations of classified material. The court described how the program was known — by Snowden’s leaks. It also analyzed the NSA order to Verizon, leaked by Snowden, that proved the existence of the program and revealed indirectly the legal reasoning that the government relied on to authorize the metadata collection.

The Second Circuit seemed supremely untroubled by the origin of the information in a violation of classification laws. At one point, it noted that the government disputed the claim that virtually all metadata are being collected — then dismissed the government’s suggestion as unconvincing in the light of the evidence. Today, it would seem, the Snowden revelations are treated as judicially knowable facts, at least in this court.

Then there’s the legal reasoning, which was equally striking. To get to the conclusion of unlawfulness, the Second Circuit initially had to find that anyone who has had metadata collected — that is, anyone in the U.S. — has the right to sue and challenge the statute.

The government said no one could challenge the NSA program except the telephone companies, like Verizon, who received the order. Its logic was particularly Orwellian. The Department of Justice argued that the Patriot Act demanded secrecy in reviewing challenges to the surveillance program. The secrecy, in turn, implied that the statute meant to preclude anyone from challenging the program under the non-secret provisions of the Administrative Procedure Act, the catch-all statute for challenging unlawful government programs.

The Second Circuit wisely rejected what it called this “argument from secrecy.” It reversed a lower district court that had refused to allow the suit to proceed, and set the stage for an analysis of relevance under the statute.

Those who attack Snowden miss the fact that had he not done what he had done, the courts wouldn’t even have the capability to know what the government was doing in order to judge the legality. That’s the catch-22 that is terrifying. They secretly do whatever the fuck they want, and then no one is even allowed to determine whether what they are doing is proper.

The Intercept is releasing a great deal more of the Snowden archive. You should check it out.

*** Update ***

Apparently wrong way Cole can’t read bylines. This was from last YEAR, not last week. No idea how I stumbled across it in my browsing yesterday. So yes, I’m an idiot.

Apple vs. the Feds

I know y’all will have strong opinions on this! Via the NYT:

SAN FRANCISCO — Apple said on Wednesday that it would oppose and challenge a federal court order to help the F.B.I. unlock an iPhone used by one of the two attackers who killed 14 people in San Bernardino, Calif., in December.

On Tuesday, in a significant victory for the government, Magistrate Judge Sheri Pym of the Federal District Court for the District of Central California ordered Apple to bypass security functions on an iPhone 5c used by Syed Rizwan Farook, who was killed by the police along with his wife, Tashfeen Malik, after they attacked Mr. Farook’s co-workers at a holiday gathering.

Judge Pym ordered Apple to build special software that would essentially act as a skeleton key capable of unlocking the phone.


The F.B.I. said that its experts had been unable to access data on Mr. Farook’s iPhone, and that only Apple could bypass its security features. F.B.I. experts have said they risk losing the data permanently after 10 failed attempts to enter the password because of the phone’s security features.


[Apple CEO] Cook said the order would amount to creating a “back door” to bypass Apple’s strong encryption standards — “something we simply do not have, and something we consider too dangerous to create.”

Apple says creating software that would unlock Farook’s phone would compromise every iPhone’s security. Plus they make the point that other governments (e.g., China) could order them to bypass security as well, and then where would it end.

I don’t know enough about encryption, etc., to know whether or not that’s bullshit. But Apple’s objection seems reasonable to me. What say you?

The Gray Zone Attacked in Jakarta – Updated for Clarity (4:15 PM)


The Islamic State attack in Jakarta earlier today is part of the same campaign as the Paris attack last November. While the Jakarta attack was no where near as successful in terms of casualties, including those killed, the objectives of the attack was the same as of last November’s in Paris. Islamic State has two objectives for their attacks – both related. The first is to attack the Gray Zone; the social and civil space** that Muslims live in. It is an attempt to force Muslims, whether in the US or Britain or France or Indonesia or Jordan or anywhere else, to chose sides. To define themselves not only as Muslims, but as Muslim in such a way that sets them apart from their fellow citizens. It is both a figurative and literal attempt to collapse the public realm/sphere into the private one. The Islamic State hopes that by doing so they can then achieve their objectives of recruiting Muslims to relocate to the Caliphate – the only place where actual Islam is being practiced or to stay in place and use their local knowledge to attack targets that further weaken the Gray Zone. So the first objective is to set the conditions for recruiting by attacking the Gray Zone.

The second of the Islamic State’s objective with the Jakarta attack, just as it was with the Paris attack last November, is to get the US, its allies and its partners to provide the ways and means that the Islamic State does not have to achieve IS’s ends. This is terrorism as Psychological Operations (PSYOPS). While Indonesia still has its socio-political problems, they’ve come a long way from the Suharto and Sukarno regimes. This is summed up in what has become the Indonesian national motto: bhinneka tunggal ika, which means unity in diversity. The attacks earlier today are intended to shatter, if not reverse, Indonesia’s attempts to achieve unity in diversity. IS hopes that the Indonesian response, a crackdown on Muslim Indonesians, will destroy the Gray Zone, providing the Islamic State with new recruits and a justification for further attacks, which will then lead to greater crackdowns, as well as the imposition of security protocols that erode the Indonesian political, social, and economic reforms of the past eighteen years. Moreover, they hope that attacks in Indonesia will lead other states and societies to react out of fear and panic, eroding their Gray Zones and putting a truth to the lie that ideals of liberty and freedom and diversity are just a facade. The Islamic State cannot achieve these ends themselves. They are hoping we will be so scared as to do it for them.


The Islamic State’s goal with these attacks, in terms of trying to destroy the Gray Zone in Indonesia, which is a Muslim majority country, is for Indonesia t0 crack down on those Indonesian Muslims that it identifies as supporting the Islamic State. As I’ve written about in past posts, the Islamic State’s doctrine/theology is that real Islam is rooted in Abd al-Wahhab’s radical understanding of tawheed*** (the unity of the Deity) combined with Abd al-Wahhab’s calls to eliminate innovation, apostasy, and unbelief. Since the Islamic State asserts that Muslims that adhere to Islamic State’s doctrine/theology are the true Muslims, Muslims that crack down on Islamic State or Islamic State supporters can and will be labeled apostates. This allows IS to renew and/or reinforce their call that the Muslims involved in running Indonesia or supporting the governments efforts are unbelievers or apostates. Such assertions contribute to the attempted destruction of the Gray Zone by allowing the Islamic State to reinforce their central tenet of radical tawheed. This provides the justification for future attacks against the unbelievers and/or apostates, including what they’ll claim are innovative Indonesian Muslim practices. The intent is to drive both recruitment and crackdown, then use that for more attacks to drive more recruitment and crackdown.

* Image taken from here. It was originally part of an IS publication.

** The Gray Zone is not just the social and civil public space in which Muslims live. Everyone lives in it when not in private. We can see it under attack by Ammon Bundy and his followers in Harney County, Oregon among white, Christian Americans just as it is under attack in Paris and Jakarta and other places by the Islamic State.

*** All Muslims accept tawheed, but not all Muslims accept the radical understanding of tawheed as taught by Abd al-Wahhab.

Balloon Juice Survival Bunker Standoff Watch: Day 1 (Updated at 12:45 AM)

I know Anne Laurie is working up a new post from checking the dashboard, but since we’ve got two aging posts and breaking news, this’ll do for both an open thread and a discussion of ongoing events until she finishes and hits publish.

Ammon Bundy, his brother Ryan, another unnamed Bundy brother, Ryan Payne, and a number of other militia folks have now occupied the Malheur National Wildlife Refuge headquarters buildings. The Bundys have stated that they are prepared to stay there for years and that they are prepared to use violence if any attempt is made to remove them. So we now have breaking and entering into a Federal facility, criminal trespass, and terroristic threats. (h/t Paul W and Kelly in comments).

Here’s the link to Oregon Live’s update. They’ve just updated at 9:15 PM local time with the following statement from the local sheriff:

Statement from Harney County Sheriff Dave Ward: ‘After the peaceful rally was completed today, a group of outside militants drove to the Malheur Wildlife Refuge, where they seized and occupied the refuge headquarters. A collective effort from multiple agencies is currently working on a solution. For the time being please stay away from that area. More information will be provided as it becomes available. Please maintain a peaceful and united front and allow us to work through this situation.'”

Here’s the link to what the Feds had to say about what the Hammonds were actually accused, tried, and convicted of.

Here’s John Ritzheimer’s Youtube video (h/t LGF commenter Backwoods Sleuth):

A Well Regulated Militia: Burns, Oregon Edition – Updated at 7:45 PM and 10:10 PM

While we’ve all been hashing out Texas’s new open carry law, the good folks of Burns, Oregon have been living the dream. Oregon is an open carry state and the Burnsites (Burnsers?) are experiencing an influx of out of state militia folks. They are there to defend the Constitution and two local cattle ranchers who are set to turn themselves in on Monday after the 9th Circuit resentenced them to longer prison terms for setting fires on the Federal land where their grazing leases were. The out of state/area militia folks are being led by Ammon Bundy; Montanan Ryan Payne – the Army veteran who claims to have been Bundy’s militia advisor and in charge of setting up the snipers at the Bundy standoff; and Arizonan John Ritzheimer –  the Marine veteran who has kept his honor clean by acting like a loon around Muslim Americans.


The Hammonds, who are set to turn themselves in on Monday, as well as most others in Burns do not seem to want the outsiders around. A rally and march earlier today seems to have gone off without incident, so hopefully Burns can make it through the weekend without a problem and the Hammonds can peacefully turn themselves in on Monday. The rally was organized by right wing radio host Pete Santilli, who was on site today in Burns. We’ll update if anything of note happens…

In other militia news: Stuart Rhodes, the Oathkeepers founder, was disbarred in Montana (h/t: Eric the Fruit Bat). This was, apparently, for some sort of malfeasance in Federal court. The lawyers in our commentariat can explain if this means he’s done as a lawyer everywhere, as it arose from a Federal complaint, or just in Montana.

——— UPDATE ———

There’s been some question in the comments of what, exactly, the Hammonds were charged and convicted of and both why and how they were resentenced. Since we’re a full service blog here (though we won’t pick you up at the airport – this is what relatives are for), here are the links to the legal/juridicial issues. The first link takes you to the right up for the original trial and sentencing. The elder Hammond was convicted for setting the 2001 Hardie-Hammond fire. The younger Hammond was sentenced for both the 2001 fire and for a 2006 fire: the Kumbo Butte fire. They were acquitted on charges that they set two other fires in 2006.


This second link provides the explanation on their being resentenced. The appeal was made because the sentences were considered by the prosecution to be far too lenient. The prosecution also drew a conceptual connection to eco-terrorism, which is where the terrorism related allegations/concept seems to have come from.


———UPDATE 2————

Thanks to Paul W and Kelly in the comments, we now know that Ammon Bundy, his brother Ryan, another unnamed Bundy brother, Ryan Payne, and a number of other militia folks have now occupied the Malheur National Wildlife Refuge headquarters buildings. No word on Ritzheimer’s whereabouts. The Bundy’s have stated that they are prepared to stay there for years and that they are prepared to use violence if any attempt is made to remove them. So we now have breaking and entering into a Federal facility, criminal trespass, and terroristic threats.


* Image taken from here.

If Not the Best, Then Certainly the Most Pleasurable Response to the November Terrorist Attacks in Paris

The Guardian has reported that when Brussels went into lockdown immediately after the Paris terrorist attacks the Belgian security response was, shall we say, innovative. A number of soldiers and police working out of a station in Ganshoren had an orgy! This gives new meaning to both the concept of a full body search and security theater, if you know what I mean… This seems to be a far superior response than to freak out on cable news 24/7, but your mileage may vary.

The Other Snowden Effect

Here’s an example of an alleged “Snowden Effect” that seems tailor-made for the wingnut Wurlitzer since it blends the ever-popular themes of government incompetence and political correctness. If true, it actually is damning evidence of the Department of Homeland Security privileging “optics” over effectiveness. Via the Beeb:

Tashfeen Malik passed three background checks when she moved from Pakistan but none looked at her social media.

New York Senator Chuck Schumer said: “Had they checked out Tashfeen Malik, maybe those people in San Bernardino would be alive”.

Malik underwent three background checks as part of the process to obtain a K-1 (commonly known as a “fiancee visa”) to enter the United States and marry fellow attacker Syed Farook, the New York Times reported.

None of those screenings would have likely checked Malik’s social media activity due to a secret US policy prohibiting security officials from reviewing social media activity of would-be immigrants, according to ABC News.

The report says, in the wake of disclosures from Edward Snowden, officials were afraid of a backlash from civil liberties activists if agents were reviewing social media postings and knowledge of the reviews were made public…

Among the activity that was missed were inflammatory comments next to a photo of a plane crashing into the World Trade Center that were posted on the 10th anniversary of those attacks, the newspaper said.

Good Christ. Apparently Malik used a pseudonym; she didn’t post “I <3 OBL” and “9/11 4evah” on Facebook under her own name. But it didn’t take the feds long to connect the dots from her real name to her online handle once she’d mowed down a bunch of people with an AR-15. To make it abundantly clear, this isn’t Snowden’s fault, of course. But according to this article, DHS officials have admitted that they don’t look at public social media activities when screening applicants from countries that are hotbeds of radicalization, even though social media is a known vector.

Why the fuck not? I wish I had a nickel for every story I’ve read about millennials blighting their job prospects forever with an ill-advised spring break booby-shot tweet. But DHS doesn’t undertake the due diligence of a corporate HR department? If not, that’s entirely on DHS, and heads should roll, metaphorically, of course.

More bad optics, from the ABC News story linked above:

DHS’s Catron told ABC News the Department is “actively considering additional ways to incorporate the use of social media review in its various vetting programs,” while keeping an eye on privacy concerns.

“The Department will continue to ensure that any use of social media in its vetting program is consistent with current law and appropriately takes into account civil rights and civil liberties and privacy protections,” Catron said.

Look, I’m firmly convinced that the anti-immigrant — particularly the anti-Muslim immigrant — hysteria from the Trumpenproletariat is as absurd as a fainting epidemic triggered by lightning strikes or shark attacks. But shouldn’t a “screening” worthy of the name include a rudimentary social media search?

And good luck selling the panicky American people on taking in 10,000 Syrian refugees now that we have a DHS official publicly expressing concern over respecting non-citizens’ civil rights and privacy during the screening process. That’s some bad optics right there. Expect the occupants of the GOP clown car to wave this bloody shirt from now until next November.