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In a pending lawsuit challenging the constitutionality of the “no fly” list, in which the government has asserted the state secrets privilege, a federal court signaled that it would consider requiring judicial approval of “no fly” determinations involving U.S. citizens. Judge Anthony J. Trenga, who presides over the case Gulet Mohamed v. Eric Holder in the Eastern District of Virginia, set a hearing on February 24 to allow the government to supplement its argument that the case must be dismissed on state secrets grounds. Judge Trenga has previously rejected government arguments that state secrets required dismissal of the case and concluded the case could proceed without the assertedly privileged documents. (Secrecy News, 10/31/14). In a February 2 order, he told the government to be prepared to explain “how the under seal documents as to which the state secrets privilege is claimed preclude adjudication of the procedural due process claims without their use and disclosure.”

Beyond that, however, Judge Trenga hinted at a possible remedy to the constitutional challenge before the court involving independent judicial review of “no fly” determinations. He asked the government to address “whether, and if so how, national security considerations make it impractical or otherwise undesirable to submit for ex parte, in camera judicial review and approval the placement of United States citizens on the No Fly List, either before a citizen’s placement on the No Fly List or within a specific time period after placement on the No Fly List.” The upcoming hearing will be closed and ex parte.

Director of National Intelligence James Clapper this morning released a report detailing new rules aimed at reforming the way signals intelligence is collected and stored by certain members of the United States Intelligence Community (IC). The long-awaited changes follow up on an order announced by President Obama one year ago that laid out the White House’s principles governing the collection of signals intelligence. That order, commonly known as PPD-28, purports to place limits on the use of data collected in bulk and to increase privacy protections related to the data collected, regardless of nationality. Accordingly, most of the changes presented as “new” by Clapper’s office  (ODNI) stem directly from the guidance provided in PPD-28, and so aren’t truly new. And of the biggest changes outlined in the report, there are still large exceptions that appear to allow the government to escape the restrictions with relative ease. Here’s a quick rundown.

Retention policy for non-U.S. persons. The new rules say that the IC must now delete information about “non-U.S. persons” that’s been gathered via signals intelligence after five-years. However, there is a loophole that will let spies hold onto that information indefinitely whenever the Director of National Intelligence determines (after considering the views of the ODNI’s Civil Liberties Protection Officer) that retaining information is in the interest of national security. The new rules don’t say whether the exceptions will be directed at entire groups of people or individual surveillance targets.  Section 215 metadata. Updates to the rules concerning the use of data collected under Section 215 of the Patriot Act includes the requirement that the Foreign Intelligence Surveillance Court (rather than authorized NSA officials) must determine spies have “reasonable, articulable suspicion” prior to query Section 215 data, outside of emergency circumstances. What qualifies as an emergency for these purposes? We don’t know. Additionally, the IC is now limited to two “hops” in querying the database. This means that spies can only play two degrees of Kevin Bacon, instead of the previously allowed three degrees, with the contacts of anyone targeted under Section 215. The report doesn’t explain what would prevent the NSA (or other agency using the 215 databases) from getting around this limit by redesignating a phone number found in the first or second hop as a new “target,” thereby allowing the agency to continue the contact chain.

National security letters (NSLs). The report also states that the FBI’s gag orders related to NSLs expire three years after the opening of a full-blown investigation or three years after an investigation’s close, whichever is earlier. However, these expiration dates can be easily overridden by by an FBI Special Agent in Charge or a Deputy Assistant FBI Director who finds that the statutory standards for secrecy about the NSL continue to be satisfied (which at least one court has said isn’t a very high bar). This exception also doesn’t address concerns that NSL gag orders lack adequate due process protections, lack basic judicial oversight, and may violate the First Amendment.

The latest report from the International Atomic Energy Agency on Iran’s nuclear program contains much that is worth emphasizing. Iran is continuing to account for all its declared nuclear material (and the agency appears to have no reason to suspect the existence of undeclared nuclear material). Iran is also continuing to comply fully with the commitments it made to the United States and others on November 24, 2013 and which it has renewed since. Much of the commentary on the report on Iran will inevitably highlight Iran’s continuing failure to resolve two concerns the IAEA raised in May 2014. I, however, am surprised, that the IAEA director general omits all mention of two Iranian attempts, since the last IAEA report in mid-November, to address those and some other allegations that the IAEA is investigating. On December 2, Reuters reported that in a statement to the IAEA Iran had rejected accusations that it was stonewalling IAEA investigations. Instead, Iran had affirmed that it had given the IAEA “pieces of evidence” indicating that documents adduced by the IAEA as reasons for concern were “full of mistakes and contain fake names with specific pronunciations which only point towards a certain IAEA member as their forger.” (The member Iran probably had in mind was Israel). Yet there is no mention whatsoever of this Iranian rebuttal in the latest report, still less any detailed IAEA rebuttal of the rebuttal. Instead, the director general resorts to an exceptionally bland (and in the circumstances misleading) phrase: “Iran has not provided any explanations that enable the Agency to clarify the two outstanding practical measures [concerns].”

In effect Iran is being asked to prove its innocence. But when it tries to do so, the evidence it submits is rejected out of hand because it calls into question the evidence that is being used to justify the suspicion of guilt. Is that consistent with due process? Also surprising is the omission of any mention of Iran’s offer of access to a suspected nuclear site at Marivan, reported by Reuters on December 11. A controversial annex to the IAEA’s November 2011 report referred to one member state having informed the agency that major high-explosives tests were conducted at Marivan in the first part of the last decade. Since the IAEA has not taken Iran up on the offer, it presumably believes that a visit to Marivan would serve no useful purpose. If that is the case, do they not owe it to Iran to withdraw the November 2011 charge relating to Marivan? If the agency isn’t arranging a site visit, it should explain to IAEA member states that it considers the information provided by “a member state” to have been unreliable or irrelevant.

raise these questions not to criticise the IAEA secretariat, which continues to do a first-class job in Iran, as professional and objective as ever. Rather, I want to offset the hue and cry that opponents of a nuclear deal will raise over the reference in the latest report to Iran’s failure to provide explanations. I’m suggesting that there is more to this than meets the eye.

Moath Hamza Ahmed al-Alwi, a Yemeni national who has been detained at the American prison facility at Guantánamo Bay since 2002, weighs only 98 pounds. Never charged with a crime, al-Alwi, now 35 years old, is one of many detainees at the camp who have gone on a prolonged hunger strike. As described in a recent petition submitted to the Inter-American Commission on Human Rights (IACHR) by his lawyers, al-Alwi’s mental and physical state is seriously deteriorating after two years on hunger strike, and subsequent force-feeding.  Since commencing his strike in February 2013, al-Alwi alleges that he has been subjected to escalating physical and psychological abuse from guards, as well as increasingly brutal force-feeding procedures administered by medical personnel at the camp. Human rights organizations have described the force-feeding procedure employed at Guantánamo as torture, and the U.S. government has fought to keep video footage of the force-feeding of al-Alwi and other hunger-striking detainees from public view.

Moath Hamza Ahmed al-Alwi, a Yemeni national who has been detained at the American prison facility at Guantánamo Bay since 2002, weighs only 98 pounds. Never charged with a crime, al-Alwi, now 35 years old, is one of many detainees at the camp who have gone on a prolonged hunger strike. As described in a recent petition submitted to the Inter-American Commission on Human Rights (IACHR) by his lawyers, al-Alwi’s mental and physical state is seriously deteriorating after two years on hunger strike, and subsequent force-feeding.  Since commencing his strike in February 2013, al-Alwi alleges that he has been subjected to escalating physical and psychological abuse from guards, as well as increasingly brutal force-feeding procedures administered by medical personnel at the camp. Human rights organizations have described the force-feeding procedure employed at Guantánamo as torture, and the U.S. government has fought to keep video footage of the force-feeding of al-Alwi and other hunger-striking detainees from public view

Al-Alwi, who has described his strike as “a form of peaceful protest against injustice,” has said that he will not resume eating until there is some sort of legal resolution to his case. Prison officials have responded to his hunger strike by placing him in solitary confinement, denying him access to prescribed medical items and subjecting him to extreme temperatures in his cell. 

The Obama administration will be forced this weekend to grapple with major decisions on Syria that it has long resisted making but may now be unavoidable if the president’s diplomatic and military strategies there are to succeed. In a meeting Saturday in Vienna, Secretary of State John F. Kerry will try to build momentum for a Syrian political transition. Allies at the table plan to challenge him to expand the narrow list of U.S.-approved opposition forces fighting against Syrian President Bashar al-Assad and to recognize Islamist groups the administration has shunned as extremist. On Sunday and Monday, President Obama will face Turkish President Recep Tayyip Erdogan at the Group of 20 economic summit in the Mediterranean resort of Antalya. Erdogan said Wednesday that Syria will be a “major topic” at the summit and that he will push his long-standing demand for the creation of a U.S.-protected Syrian safe zone along the Turkish border. Russian President Vladi­mir Putin will also attend the G-20 meeting. Russian bombing of opposition forces in support of Assad has fundamentally altered the equation in Syria, and Putin has his own ideas about political transformation, terrorism and air operations there. The Vienna meeting is the second in as many weeks since Kerry launched a new effort to resolve the Syrian civil war through diplomatic channels. In addition to the humanitarian disaster the conflict has caused, the administration thinks the continuation of the war undercuts its higher priority of defeating the Islamic State in both Syria and Iraq.

“It’s a philosophy based on momentum,” said British Foreign Secretary Philip Hammond, one of the participants. “You get people together, you force them to make some forward movement, keeping them at it, keeping their noses to the grindstone, keep them in a locked room.” Kerry, Hammond said, “wants to make some further significant progress this week.” The plan is for the rapid-fire meetings to continue until success is achieved. “But if he can’t deliver,” a senior administration official acknowledged, “there will maybe be one more after this and it will fizzle. We just don’t know. I’ve seen Kerry pull rabbits out of hats before.” The official was one of several who spoke on the condition of anonymity about internal administration discussions. Before the first Vienna meeting at the end of October, Kerry and his Russian counterpart, Foreign Minister Sergei Lavrov, agreed that they would set aside the issue that most divided them — whether Assad could be part of a negotiated transition to a new Syrian government. In addition to U.S. allies in the Middle East and Europe, the 19 attendees also included Assad-backer Iran, invited for the first time to participate in international discussions over Syria. The Syrian opposition and representatives from Assad government were not invited and will not attend the Saturday meeting. The assumption by participants is that if they can reach agreements among themselves, it will eventually be easier to convince the combatants that a deal is viable and to push them toward making compromises that may be necessary.

While Kerry is seen as open to expanding the list of acceptable organizations, “I don’t know if the White House will sign off on it,” an administration official said. Any cease-fire would include an exemption for bombing raids against the Islamic State and likely Jabhat al-Nusra, a complication in the case of the latter because its forces in northwest Syria are co-mingled with other opposition groups. While the United States has rarely targeted that part of the country, Russian airstrikes have centered on the area. “Basically, they want a free pass to keep hitting people,” said the administration official, noting that the Russians might claim they were targeting only Jabhat al-Nusra while continuing to bomb Assad’s opponents.

Pending before federal magistrate judge James Orenstein is the government’s request for an order obligating Apple, Inc. to unlock an iPhone and thereby assist prosecutors in decrypting data the government has seized and is authorized to search pursuant to a warrant. In an order questioning the government’s purported legal basis for this request, the All Writs Act of 1789 (AWA), Judge Orenstein asked Apple for a brief informing the court whether the request would be technically feasible and/or burdensome. After Apple filed, the court asked it to file a brief discussing whether the government had legal grounds under the AWA to compel Apple’s assistance. Apple filed that brief and the government filed a reply brief last week in the lead-up to a hearing this morning.

We’ve long been concerned about whether end users own software under the law. Software owners have rights of adaptation and first sale enshrined in copyright law. But software publishers have claimed that end users are merely licensees, and our rights under copyright law can be waived by mass-market end user license agreements, or EULAs. Over the years, Granick has argued that users should retain their rights even if mass-market licenses purport to take them away. The government’s brief takes advantage of Apple’s EULA for iOS to argue that Apple, the software publisher, is responsible for iPhones around the world. Apple’s EULA states that when you buy an iPhone, you’re not buying the iOS software it runs, you’re just licensing it from Apple. The government argues that having designed a passcode feature into a copy of software which it owns and licenses rather than sells, Apple can be compelled under the All Writs Act to bypass the passcode on a defendant’s iPhone pursuant to a search warrant and thereby access the software owned by Apple. Apple’s supplemental brief argues that in defining its users’ contractual rights vis-à-vis Apple with regard to Apple’s intellectual property, Apple in no way waived its own due process rights vis-à-vis the government with regard to users’ devices. Apple’s brief compares this argument to forcing a car manufacturer to “provide law enforcement with access to the vehicle or to alter its functionality at the government’s request” merely because the car contains licensed software. 

This is an interesting twist on the decades-long EULA versus users’ rights fight. As far as we know, this is the first time that the government has piggybacked on EULAs to try to compel software companies to provide assistance to law enforcement. Under the government’s interpretation of the All Writs Act, anyone who makes software could be dragooned into assisting the government in investigating users of the software. If the court adopts this view, it would give investigators immense power. The quotidian aspects of our lives increasingly involve software (from our cars to our TVs to our health to our home appliances), and most of that software is arguably licensed, not bought. Conscripting software makers to collect information on us would afford the government access to the most intimate information about us, on the strength of some words in some license agreements that people never read. (And no wonder: The iPhone’s EULA came to over 300 pages when the government filed it as an exhibit to its brief.)

ou know the old joke: How do you make a killing on Wall Street and never risk a loss? Easy—use other people’s money. Jamie Dimon and his underlings at JPMorgan Chase have perfected this dark art at America’s largest bank, which boasts a balance sheet one-eighth the size of the entire US economy.1 After JPMorgan’s deceitful activities in the housing market helped trigger the 2008 financial crash that cost millions of Americans their jobs, homes, and life savings, punishment was in order. Among a vast array of misconduct, JPMorgan engaged in the routine use of “robo-signing,” which allowed bank employees to automatically sign hundreds, even thousands, of foreclosure documents per day without verifying their contents. But in the United States, white-collar criminals rarely go to prison; instead, they negotiate settlements. Thus, on February 9, 2012, US Attorney General Eric Holder announced the National Mortgage Settlement, which fined JPMorgan Chase and four other mega-banks a total of $25 billion.2 JPMorgan’s share of the settlement was $5.3 billion, but only $1.1 billion had to be paid in cash; the other $4.2 billion was to come in the form of financial relief for homeowners in danger of losing their homes to foreclosure. The settlement called for JPMorgan to reduce the amounts owed, modify the loan terms, and take other steps to help distressed Americans keep their homes. A separate 2013 settlement against the bank for deceiving mortgage investors included another $4 billion in consumer relief.3 A Nation investigation can now reveal how JPMorgan met part of its $8.2 billion settlement burden: by using other people’s money.4 Here’s how the alleged scam worked. JPMorgan moved to forgive the mortgages of tens of thousands of homeowners; the feds, in turn, credited these canceled loans against the penalties due under the 2012 and 2013 settlements. But here’s the rub: In many instances, JPMorgan was forgiving loans on properties it no longer owned.5 The alleged fraud is described in internal JPMorgan documents, public records, testimony from homeowners and investors burned in the scam, and other evidence presented in a blockbuster lawsuit against JPMorgan, now being heard in US District Court in New York City.6 JPMorgan no longer owned the properties because it had sold the mortgages years earlier to 21 third-party investors, including three companies owned by Larry Schneider. Those companies are the plaintiffs in the lawsuit; Schneider is also aiding the federal government in a related case against the bank. In a bizarre twist, a company associated with the Church of Scientology facilitated the apparent scheme. Nationwide Title Clearing, a document-processing company with close ties to the church, produced and filed the documents that JPMorgan needed to claim ownership and cancel the loans.

The Obama administration is now accusing Russia of cyber-crime and trying to disrupt the US presidential election. The claim is so far-fetched, it is hardly credible. More credible is that the US is reeling from Putin’s stunning humiliation earlier this week. Since June, US media and supporters of Democrat presidential contender Hillary Clinton have been blaming Russian state-sponsored hackers for breaking into the Democratic party’s database. It is further alleged that Moscow is stealthily trying to influence the outcome of the election, by releasing damaging information on Clinton, which might favor Republican candidate Donald Trump. Russia has vehemently denied any connection to the cyber-crime charges, or trying to disrupt the November poll. Now the Obama administration has stepped into the fray by openly accusing Russia. «US government officially accuses Russia of hacking campaign to interfere with elections», reported the Washington Post. This takes the row to a whole new level. No longer are the insinuations a matter of private, partisan opinion. The US government is officially labelling the Russian state for cyber-crime and political subversion.

Predictably, following the latest allegations, there are calls among American lawmakers for ramping up more economic sanctions against Russia. While US intelligence figures are urging for retaliatory cyber-attacks on Russian government facilities. Vladimir Putin’s spokesman Dmitry Peskov derided the US claims as «rubbish». He noted that the Kremlin’s computer system incurs hundreds of hacking attempts every day, many of which can be traced to American origin, but Moscow doesn’t turn around and blame the US government for such cyber-attacks. There are several signs that the latest brouhaha out of Washington is a bogus diversion. As with previous Russian-hacker claims by the Democrats and US media, there is no evidence presented by the Obama administration to support its grave allegations against the Russian government. Assertion without facts does not meet a minimal standard of proof. When reports emerged in June – again through the Washington Post – that the Democrat National Committee (DNC) was hacked by Russian agents, the allegation relied on investigations by a private cyber security firm by the name of CrowdStrike. The firm is linked by personnel to the NATO-affiliated, anti-Russian think tank Atlantic Council. Again no verifiable evidence was presented then, just the word of a dubious partisan source.

Back then the Russian scare story, for that’s what it was, served as a useful diversion from far more important issues. Such as the 19,000 emails released from the DNC database showing that the party chiefs had preordained Clinton’s presidential nomination over her Democrat rival Bernie Sanders. Much-vaunted «US democracy» was exposed as a fraud, and so the Washington establishment quickly went into damage-limitation mode by smearing Russia. It was the whistleblower site Wikileaks, run by Australian journalist Julian Assange, that released the embarrassing emails. It had nothing to do with Russia. Assange has since hinted that his source was within the Democrat party itself. This is where it gets really explosive. Assange has vowed to release more emails that will prove that Clinton as Secretary of State back in 2011-2012 masterminded the supply of weapons and money to Islamist terror networks in Libya and Syria for the objective of regime change. Furthermore, Assange says that the emails prove that Clinton lied under oath to Congress when she denied in 2013 that she was had any involvement in facilitating arms to the jihadists. Assange has said that Wikileaks is going to publish the incriminating emails on Clinton’s alleged gun-running to terrorists this month. If the evidence stands up, Clinton could be prosecuted for perjury as well as treason in aiding and abetting official terrorist enemies of the US.

Palestinian Authority (PA) chairman Mahmoud Abbas told Russian President Vladimir Putin on Monday he could no longer accept the role of the United States as a mediator in talks with Israel because of Washington’s behavior, Reuters reported. “We state that from now on we refuse to cooperate in any form with the U.S. in its status of a mediator, as we stand against its actions,” Abbas told Putin at the start of talks in Moscow. The PA chairman said he wanted an expanded new mediation mechanism to replace the Middle East Quartet. “For instance, ‘the quartet’ plus some other countries like the model used to achieve the deal on Iran,” Abbas said, referring to international talks about Tehran’s nuclear program. Abbas reacted in anger in December when U.S. President Donald Trump recognized Jerusalem as Israel’s capital and set in motion the process of moving the U.S. embassy from Tel Aviv. Following Trump's Jerusalem move,Abbas declared that he would "no longer accept" any peace plan proposed by the United States. He is due to speak at the United Nations Security Council on February 20, where he is expected to respond to Trump's recognition of Jerusalem.