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History > 2013 > USA > Terrorism (III)




Senate Panel Presses N.S.A.

on Phone Logs


July 31, 2013
The New York Times


WASHINGTON — Senators of both parties on Wednesday sharply challenged the National Security Agency’s collection of records of all domestic phone calls, even as the latest leaked N.S.A. document provided new details on the way the agency monitors Web browsing around the world.

At a Senate Judiciary Committee hearing, the chairman, Patrick J. Leahy, Democrat of Vermont, accused Obama administration officials of overstating the success of the domestic call log program. He said he had been shown a classified list of “terrorist events” detected through surveillance, and it did not show that “dozens or even several terrorist plots” had been thwarted by the domestic program.

“If this program is not effective it has to end. So far, I’m not convinced by what I’ve seen,” Mr. Leahy said, citing the “massive privacy implications” of keeping records of every American’s domestic calls.

At the start of the hearing, the Obama administration released previously classified documents outlining the rules for how the domestic phone records may be accessed and used by intelligence analysts. And as senators debated the program, The Guardian published on its Web site a still-classified 32-page presentation, apparently downloaded by Edward J. Snowden, the former N.S.A. contractor, that describes a separate surveillance activity by the agency.

Called the XKeyscore program, it apparently gives N.S.A. analysts access to virtually any Internet browsing activity around the world, data that is being vacuumed up from 150 foreign sites.

Together, the new disclosures provided additional details on the scope of the United States government’s secret surveillance programs, which have been dragged into public view and public debate by leaks from Mr. Snowden, who remains stranded in a Moscow airport.

The hearing came a week after the House voted narrowly to defeat an amendment to shut down the N.S.A.’s domestic phone record tracking program. The 217-to-205 vote was far closer than expected, and it — along with shifting poll numbers — suggested that momentum against the domestic program was building. In recent days even some of the most outspoken supporters of the program have said they are open to adjusting it.

The Obama administration has been trying to build public support for its surveillance programs, which trace back to the Bush administration, by arguing that they are subject to strict safeguards and court oversight and that they have helped thwart as many as 54 terrorist events. That figure, Mr. Leahy emphasized, relies upon conflating another program that allows surveillance targeted at noncitizens abroad, which has apparently been quite valuable, with the domestic one.

Still, Senator Dianne Feinstein, the California Democrat who is chairwoman of the Senate Intelligence Committee, said she supported overhauling the program but keeping it in place because it generates information that might prevent attacks.

John C. Inglis, the deputy director of the N.S.A., said there had been 13 investigations in which the domestic call tracking program made a “contribution.” He cited two discoveries: that several men in San Diego were sending money to a terrorist group in Somalia, and that a suspect who was already under scrutiny in a subway bomb plot was using a different phone.

Robert S. Litt, the top lawyer in the Office of the Director of National Intelligence, testified that the Obama administration was also “open to re-evaluating this program” to create greater public confidence that it protects privacy while “preserving the essence of the program.” Administration officials have emphasized that the program collects only so-called metadata, and not the contents of phone calls.

Still, the top Republican on the committee, Senator Charles E. Grassley of Iowa, asked skeptical questions about the legal basis for the program while criticizing the director of national intelligence, James Clapper, for making inaccurate statements to Congress about it in March. Mr. Clapper has since apologized.

“Nothing can excuse this kind of behavior from a senior administration official of any administration, especially on matters of such grave importance,” Mr. Grassley said.

A series of slides describing XKeyscore, dated 2008, make it clear that the security agency system is collecting a huge amount of data on Internet activity around the globe, from chats on social networks to browsing of Web sites and searches on Google Maps. The volume of data is so vast that most of it is stored for only three days, although metadata — information showing logins and server activity, but not content — is stored for a month. Several of the pages were redacted by The Guardian.

Some of the servers the agency uses are run by foreign intelligence services of friendly nations, including Britain, Australia, Canada and New Zealand, but other servers may be on the soil of countries unaware the agency is mining Internet “pipes” on their soil. Some of the harvesting of data takes place on the coasts of the United States, and along the Mexican border. Most sites are in Europe, the Middle East, and along the borders of India, Pakistan, and China.

The intelligence analysts search for terrorist cells by looking at “anomalous events” — someone searching in German from Pakistani sites, or an Iranian sending an encrypted Microsoft Word file. But one slide says the system can be used to identify anyone “searching the Web for suspicious stuff.”

The presentation says the system enables analysts to identify and pursue leads even if they do not yet know the name, or the e-mail address, of a suspect. “A large amount of time spent on the Web is performing actions that are anonymous,” it explains.

One example of how analysts might use the system is to search for whenever someone has started up a “virtual private network” in a particular country of interest; the networks are pipelines that add greater security to online communications. N.S.A. analysts are able to use the system to extract the activity retrospectively from “raw unselected bulk traffic,” the documents say, and then decrypt it to “discover the users.”

The agency said its surveillance of the Internet was part of its “lawful foreign signals intelligence collection” and not “arbitrary and unconstrained.” The chairman of the House Intelligence Committee, Representative Mike Rogers, and the ranking Democrat, C. A. Dutch Ruppersberger, said, “The program does not target American citizens.”

The XKeyscore presentation claimed the program had generated intelligence that resulted in the capture of more than 300 terrorists. By contrast, the documents released by the government about the domestic phone log program were more abstract.

They included briefing papers to Congress from 2009 and 2011 about the “very large scale” logging of Americans’ calling records — along with a related program that logged Americans’ e-mails, and that was shut down later in 2011 — portraying the programs as providing a vital and important capability.

But Senator Ron Wyden, an Oregon Democrat on the Senate Intelligence Committee who has been a leading critic of the bulk collection programs, said the program had been shut down because officials were unable “to provide evidence to support the claims” of operational value. Mr. Wyden has also questioned the utility of the phone log program.

The new documents also included an April “primary order” by the Foreign Intelligence Surveillance Court that supported orders requiring phone companies to turn over all customer records. It said the government may access the records only when there are “facts giving rise to a reasonable, articulable suspicion” that the number to be searched is associated with terrorism.

However, it said that the results of each inquiry are then placed in a “corporate store” that analysts may search without any such limits. Intelligence officials have separately said that search results include not just a target’s phone records, but also exponentially larger sets of the records of people in as many as three concentric circles around the target.

    Senate Panel Presses N.S.A. on Phone Logs, NYT, 31.7.2013,





Judge Halts

Groin Searches at Guantánamo,

Calling Them Abhorrent to Muslims


July 11, 2013
The New York Times


WASHINGTON — A federal judge on Thursday ordered the military to stop touching the groins of detainees at the prison at Guantánamo Bay, Cuba, when they are moved from their cells to speak with lawyers. The procedure had led some prisoners to stop meeting with or calling their lawyers.

In a 35-page opinion, Judge Royce C. Lamberth, the chief judge of the Federal District Court for the District of Columbia, called the searches — which included guards wedging their hands between the genitals and thighs of the detainees as many as four times when moving them to a meeting and back to their cells — “religiously and culturally abhorrent” to Muslims. He portrayed the procedure as unnecessary and intended to “actively discourage” meetings with lawyers.

He said the warden, Col. John Bogdan, must return to a longtime procedure in which guards shake the underwear of detainees by the band to dislodge any contraband, but do not to touch their buttocks or genitals.

He also directed the military to allow detainees who are weak from hunger strikes to meet with their lawyers in the same buildings in which they are housed, and to stop using new transport vans that have low roofs that detainees had said required them to be painfully crouched while shackled.

Colonel Bogdan introduced the new procedures in May, after a raid in which guards forced protesting detainees into lockdown in their individual cells. After the raid, officials said they found improvised weapons. In putting the policy into place, the colonel cited the risk of such weapons as well as the case of a detainee who committed suicide in September by swallowing an overdose of medication, raising speculation that he had hoarded the pills in his underwear.

But the judge, appointed by President Ronald Reagan, rejected those explanations as “yet another exaggerated response” by the military that was “inhibiting petitioners’ access to counsel.”

In September, Judge Lamberth issued a similarly scathing opinion rejecting new restrictions on lawyers’ access to clients who did not have an actively pending habeas corpus lawsuit. That challenge was brought in part by David Remes, a lawyer who also helped challenge the groin searches.

Mr. Remes portrayed the latest ruling as “a slap in the face to the government,” asking, “Will the government ever give up trying to thwart the men’s right to counsel in habeas cases?”

    Judge Halts Groin Searches at Guantánamo, Calling Them Abhorrent to Muslims,
    NYT, 11.7.2013,






The Criminal N.S.A.


June 27, 2013
The New York Times


THE twin revelations that telecom carriers have been secretly giving the National Security Agency information about Americans’ phone calls, and that the N.S.A. has been capturing e-mail and other private communications from Internet companies as part of a secret program called Prism, have not enraged most Americans. Lulled, perhaps, by the Obama administration’s claims that these “modest encroachments on privacy” were approved by Congress and by federal judges, public opinion quickly migrated from shock to “meh.”

It didn’t help that Congressional watchdogs — with a few exceptions, like Senator Rand Paul, Republican of Kentucky — have accepted the White House’s claims of legality. The leaders of the Senate Intelligence Committee, Dianne Feinstein, Democrat of California, and Saxby Chambliss, Republican of Georgia, have called the surveillance legal. So have liberal-leaning commentators like Hendrik Hertzberg and David Ignatius.

This view is wrong — and not only, or even mainly, because of the privacy issues raised by the American Civil Liberties Union and other critics. The two programs violate both the letter and the spirit of federal law. No statute explicitly authorizes mass surveillance. Through a series of legal contortions, the Obama administration has argued that Congress, since 9/11, intended to implicitly authorize mass surveillance. But this strategy mostly consists of wordplay, fear-mongering and a highly selective reading of the law. Americans deserve better from the White House — and from President Obama, who has seemingly forgotten the constitutional law he once taught.

The administration has defended each of the two secret programs. Let’s examine them in turn.

Edward J. Snowden, the former N.S.A. contract employee and whistle-blower, has provided evidence that the government has phone record metadata on all Verizon customers, and probably on every American, going back seven years. This metadata is extremely revealing; investigators mining it might be able to infer whether we have an illness or an addiction, what our religious affiliations and political activities are, and so on.

The law under which the government collected this data, Section 215 of the Patriot Act, allows the F.B.I. to obtain court orders demanding that a person or company produce “tangible things,” upon showing reasonable grounds that the things sought are “relevant” to an authorized foreign intelligence investigation. The F.B.I. does not need to demonstrate probable cause that a crime has been committed, or any connection to terrorism.

Even in the fearful time when the Patriot Act was enacted, in October 2001, lawmakers never contemplated that Section 215 would be used for phone metadata, or for mass surveillance of any sort. Representative F. James Sensenbrenner Jr., a Wisconsin Republican and one of the architects of the Patriot Act, and a man not known as a civil libertarian, has said that “Congress intended to allow the intelligence communities to access targeted information for specific investigations.” The N.S.A.’s demand for information about every American’s phone calls isn’t “targeted” at all — it’s a dragnet. “How can every call that every American makes or receives be relevant to a specific investigation?” Mr. Sensenbrenner has asked. The answer is simple: It’s not.

The government claims that under Section 215 it may seize all of our phone call information now because it might conceivably be relevant to an investigation at some later date, even if there is no particular reason to believe that any but a tiny fraction of the data collected might possibly be suspicious. That is a shockingly flimsy argument — any data might be “relevant” to an investigation eventually, if by “eventually” you mean “sometime before the end of time.” If all data is “relevant,” it makes a mockery of the already shaky concept of relevance.

Let’s turn to Prism: the streamlined, electronic seizure of communications from Internet companies. In combination with what we have already learned about the N.S.A.’s access to telecommunications and Internet infrastructure, Prism is further proof that the agency is collecting vast amounts of e-mails and other messages — including communications to, from and between Americans.

The government justifies Prism under the FISA Amendments Act of 2008. Section 1881a of the act gave the president broad authority to conduct warrantless electronic surveillance. If the attorney general and the director of national intelligence certify that the purpose of the monitoring is to collect foreign intelligence information about any non­American individual or entity not known to be in the United States, the Foreign Intelligence Surveillance Court can require companies to provide access to Americans’ international communications. The court does not approve the target or the facilities to be monitored, nor does it assess whether the government is doing enough to minimize the intrusion, correct for collection mistakes and protect privacy. Once the court issues a surveillance order, the government can issue top-secret directives to Internet companies like Google and Facebook to turn over calls, e-mails, video and voice chats, photos, voice­over IP calls (like Skype) and social networking information.

Like the Patriot Act, the FISA Amendments Act gives the government very broad surveillance authority. And yet the Prism program appears to outstrip that authority. In particular, the government “may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.”

The government knows that it regularly obtains Americans’ protected communications. The Washington Post reported that Prism is designed to produce at least 51 percent confidence in a target’s “foreignness” — as John Oliver of “The Daily Show” put it, “a coin flip plus 1 percent.” By turning a blind eye to the fact that 49-plus percent of the communications might be purely among Americans, the N.S.A. has intentionally acquired information it is not allowed to have, even under the terrifyingly broad auspices of the FISA Amendments Act.

How could vacuuming up Americans’ communications conform with this legal limitation? Well, as James R. Clapper Jr., the director of national intelligence, told Andrea Mitchell of NBC, the N.S.A. uses the word “acquire” only when it pulls information out of its gigantic database of communications and not when it first intercepts and stores the information.

If there’s a law against torturing the English language, James Clapper is in real trouble.

The administration hides the extent of its “incidental” surveillance of Americans behind fuzzy language. When Congress reauthorized the law at the end of 2012, legislators said Americans had nothing to worry about because the surveillance could not “target” American citizens or permanent residents. Mr. Clapper offered the same assurances. Based on these statements, an ordinary citizen might think the N.S.A. cannot read Americans’ e-mails or online chats under the F.A.A. But that is a government ­fed misunderstanding.

A “target” under the act is a person or entity the government wants information on — not the people the government is trying to listen to. It’s actually O.K. under the act to grab Americans’ messages so long as they are communicating with the target, or anyone who is not in the United States.

Leave aside the Patriot Act and FISA Amendments Act for a moment, and turn to the Constitution.

The Fourth Amendment obliges the government to demonstrate probable cause before conducting invasive surveillance. There is simply no precedent under the Constitution for the government’s seizing such vast amounts of revealing data on innocent Americans’ communications.

The government has made a mockery of that protection by relying on select Supreme Court cases, decided before the era of the public Internet and cellphones, to argue that citizens have no expectation of privacy in either phone metadata or in e-mails or other private electronic messages that it stores with third parties.

This hairsplitting is inimical to privacy and contrary to what at least five justices ruled just last year in a case called United States v. Jones. One of the most conservative justices on the Court, Samuel A. Alito Jr., wrote that where even public information about individuals is monitored over the long term, at some point, government crosses a line and must comply with the protections of the Fourth Amendment. That principle is, if anything, even more true for Americans’ sensitive nonpublic information like phone metadata and social networking activity.

We may never know all the details of the mass surveillance programs, but we know this: The administration has justified them through abuse of language, intentional evasion of statutory protections, secret, unreviewable investigative procedures and constitutional arguments that make a mockery of the government’s professed concern with protecting Americans’ privacy. It’s time to call the N.S.A.’s mass surveillance programs what they are: criminal.


Jennifer Stisa Granick is the director of civil liberties

at the Stanford Center for Internet and Society.

Christopher Jon Sprigman is a professor

at the University of Virginia School of Law.

    The Criminal N.S.A., NYT, 27.6.2013,






Obama Calls Surveillance Programs

Legal and Limited


June 7, 2013
The New York Times


WASHINGTON — President Obama offered a robust defense of newly revealed surveillance programs on Friday as more classified secrets spilled into public, complicating a summit meeting with China’s new president focused partly on human rights and cybersecurity.

Mr. Obama departed from his script at a health care event in California to try to reassure Americans that he had not abused government authority by collecting telephone call logs and foreigners’ e-mail messages. But the disclosure hours later of secret contingency planning to target other countries for possible cyberattacks made his get-together with President Xi Jinping later in the day all the more awkward because cyberattacks by the Chinese are high on the American agenda.

The latest of three documents published over three days by the British newspaper The Guardian added to the understanding of the Obama administration’s approach to national security in an age of multifaceted threats and became another factor in the renewed debate over the balance between privacy and security.

The identity of the person who gave those documents to The Guardian and The Washington Post is not known, but The Post has described its source as a career intelligence officer angry at “what he believes to be a gross intrusion on privacy” by the Obama administration.

Once a critic of President George W. Bush’s hawkish policies, Mr. Obama was ready with an explanation for why he has preserved and extended some of them when a reporter asked him at the health care event if he could assure Americans that the government was not building a database of their personal information. “Nobody is listening to your telephone calls,” Mr. Obama said. “That’s not what this program’s about.”

But he argued that “modest encroachments on privacy” were “worth us doing” to protect the country, and he said that Congress and the courts had authorized those programs.

A National Security Agency telephone surveillance program collects phone numbers and the duration of calls, not the content, he said. An Internet surveillance program targets foreigners living abroad, not Americans, he added.

“There are some trade-offs involved,” Mr. Obama said. “I came with a healthy skepticism about these programs. My team evaluated them. We scrubbed them thoroughly.” In the end, he concluded that “they help us prevent terrorist attacks.”

But the disclosures united liberal Democrats and libertarian Republicans in accusing him of abandoning values he once espoused. “We believe the large-scale collection of this information by the government has a very significant impact on Americans’ privacy, whether senior government officials recognize that fact or not,” Senators Ron Wyden of Oregon and Mark Udall of Colorado, both Democrats, wrote in a joint response to the president’s remarks.

Senator Richard J. Durbin, the Senate’s No. 2 Democrat and an Obama ally from Illinois, rebuffed the president’s contention that Congress had been kept abreast of the programs, saying only a handful of top leaders are regularly briefed.

“To say that there’s Congressional approval suggests a level of information and oversight that’s just not there,” he said in an interview. He added that the sort of data mining revealed in recent days “really pushes the role of government to the limit.”

Advocates of Congressional intervention said public pressure could revive legislation to at least force more transparency about the programs. “The timing has never been better to revisit our past decisions,” said Senator Mike Lee, a Utah Republican.

But it was not clear whether there would be a popular backlash to the programs beyond some outrage on Twitter and Facebook, and even critics like Mr. Durbin were skeptical. Many Americans interviewed around the country on Friday shared concerns about their civil liberties but expressed a certain grudging resignation as well.

In Congress, the main vehicle for any changes, a reauthorization of the 1978 law that created the Foreign Intelligence Surveillance Court, passed only last December and is not due for renewal for five years. During the debate last winter, the Senate voted on a bipartisan basis to reject amendments to force transparency or curtail surveillance.

Moreover, beyond Mr. Durbin, Congressional leaders and senior lawmakers on the intelligence committees expressed few qualms. The House speaker, John A. Boehner, Republican of Ohio, said Mr. Obama must be more forceful in explaining the programs but declined to discuss his own position. Senator Harry Reid of Nevada, the Democratic majority leader, dismissed concerns. “Everyone should just calm down and understand this isn’t anything that is brand new,” he said.

Just hours after the president spoke, The Guardian posted online a copy of a classified directive Mr. Obama signed last year laying out conditions under which the president could order cyberattacks against another country, akin to the attacks on Iran’s uranium enrichment plant.

The directive ordered the government to “identify potential targets of national importance” against which offensive cyberoperations “can offer a favorable balance of effectiveness and risk as compared with other instruments of national power.” That means, in essence, that the Pentagon’s Cyber Command and the intelligence agencies would maintain lists of targets around the world that could be damaged more effectively, and more covertly, by a computer attack than by a missile or bomber attack.

As previously reported, the document says only the president can authorize offensive cyberoperations, just as only he can authorize the use of nuclear weapons. The directive also reserves the right to take “anticipatory action against imminent threats” to protect critical infrastructure in the United States, including power utilities, cellphone networks and financial markets.

That raised the possibility that the United States could strike first if it feared a large attack from China or another country. Officials have blamed China for a variety of computer spying and cyberattacks, a subject featured on Mr. Obama’s agenda with Mr. Xi in Southern California.

Josh Earnest, a White House spokesman, said the revelations would not hinder the president’s discussions with Mr. Xi.


David E. Sanger contributed reporting from Washington,

and Jackie Calmes from San Jose, Calif.

    Obama Calls Surveillance Programs Legal and Limited, NYT, 7.6.2013,






U.S. Says It Gathers Online Data Abroad


June 6, 2013
The New York Times


WASHINGTON — The federal government has been secretly collecting information on foreigners overseas for nearly six years from the nation’s largest Internet companies like Google, Facebook and, most recently, Apple, in search of national security threats, the director of national intelligence confirmed Thursday night.

The confirmation of the classified program came just hours after government officials acknowledged a separate seven-year effort to sweep up records of telephone calls inside the United States. Together, the unfolding revelations opened a window into the growth of government surveillance that began under the Bush administration after the terrorist attacks of Sept. 11, 2001, and has clearly been embraced and even expanded under the Obama administration.

Government officials defended the two surveillance initiatives as authorized under law, known to Congress and necessary to guard the country against terrorist threats. But an array of civil liberties advocates and libertarian conservatives said the disclosures provided the most detailed confirmation yet of what has been long suspected about what the critics call an alarming and ever-widening surveillance state.

The Internet surveillance program collects data from online providers including e-mail, chat services, videos, photos, stored data, file transfers, video conferencing and log-ins, according to classified documents obtained and posted by The Washington Post and then The Guardian on Thursday afternoon.

In confirming its existence, officials said that the program, called Prism, is authorized under a foreign intelligence law that was recently renewed by Congress, and maintained that it minimizes the collection and retention of information “incidentally acquired” about Americans and permanent residents. Several of the Internet companies said they did not allow the government open-ended access to their servers but complied with specific lawful requests for information.

“It cannot be used to intentionally target any U.S. citizen, any other U.S. person, or anyone located within the United States,” James Clapper, the director of national intelligence, said in a statement, describing the law underlying the program. “Information collected under this program is among the most important and valuable intelligence information we collect, and is used to protect our nation from a wide variety of threats.”

The Prism program grew out of the National Security Agency’s desire several years ago to begin addressing the agency’s need to keep up with the explosive growth of social media, according to people familiar with the matter.

The dual revelations, in rapid succession, also suggested that someone with access to high-level intelligence secrets had decided to unveil them in the midst of furor over leak investigations. Both were reported by The Guardian, while The Post, relying upon the same presentation, almost simultaneously reported the Internet company tapping. The Post said a disenchanted intelligence official provided it with the documents to expose government overreach.

Before the disclosure of the Internet company surveillance program on Thursday, the White House and Congressional leaders defended the phone program, saying it was legal and necessary to protect national security.

Josh Earnest, a White House spokesman, told reporters aboard Air Force One that the kind of surveillance at issue “has been a critical tool in protecting the nation from terror threats as it allows counterterrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities, particularly people located inside the United States.” He added: “The president welcomes a discussion of the trade-offs between security and civil liberties.”

The Guardian and The Post posted several slides from the 41-page presentation about the Internet program, listing the companies involved — which included Yahoo, Microsoft, Paltalk, AOL, Skype and YouTube — and the dates they joined the program, as well as listing the types of information collected under the program.

The reports came as President Obama was traveling to meet President Xi Jinping of China at an estate in Southern California, a meeting intended to address among other things complaints about Chinese cyberattacks and spying. Now that conversation will take place amid discussion of America’s own vast surveillance operations.

But while the administration and lawmakers who supported the telephone records program emphasized that all three branches of government had signed off on it, Anthony Romero of the American Civil Liberties Union denounced the surveillance as an infringement of fundamental individual liberties, no matter how many parts of the government approved of it.

“A pox on all the three houses of government,” Mr. Romero said. “On Congress, for legislating such powers, on the FISA court for being such a paper tiger and rubber stamp, and on the Obama administration for not being true to its values.”

Others raised concerns about whether the telephone program was effective.

Word of the program emerged when The Guardian posted an April order from the secret foreign intelligence court directing a subsidiary of Verizon Communications to give the N.S.A. “on an ongoing daily basis” until July logs of communications “between the United States and abroad” or “wholly within the United States, including local telephone calls.”

On Thursday, Senators Dianne Feinstein of California and Saxby Chambliss of Georgia, the top Democrat and top Republican on the Intelligence Committee, said the court order appeared to be a routine reauthorization as part of a broader program that lawmakers have long known about and supported.

“As far as I know, this is an exact three-month renewal of what has been the case for the past seven years,” Ms. Feinstein said, adding that it was carried out by the Foreign Intelligence Surveillance Court “under the business records section of the Patriot Act.”

“Therefore, it is lawful,” she said. “It has been briefed to Congress.”

While refusing to confirm or to directly comment on the reported court order, Verizon, in an internal e-mail to employees, defended its release of calling information to the N.S.A. Randy Milch, an executive vice president and general counsel, wrote that “the law authorizes the federal courts to order a company to provide information in certain circumstances, and if Verizon were to receive such an order, we would be required to comply.”

Sprint and AT&T have also received demands for data from national security officials, according to people familiar with the requests. Those companies as well as T-Mobile and CenturyLink declined to say Thursday whether they were or had been under a similar court order.

Lawmakers and administration officials who support the phone program defended it in part by noting that it was only for “metadata” — like logs of calls sent and received — and did not involve listening in on people’s conversations.

The Internet company program appeared to involve eavesdropping on the contents of communications of foreigners. The senior administration official said its legal basis was the so-called FISA Amendments Act, a 2008 law that allows the government to obtain an order from a national security court to conduct blanket surveillance of foreigners abroad without individualized warrants even if the interception takes place on American soil.

The law, which Congress reauthorized in late 2012, is controversial in part because Americans’ e-mails and phone calls can be swept into the database without an individualized court order when they communicate with people overseas. While the newspapers portrayed the classified documents as indicating that the N.S.A. obtained direct access to the companies’ servers, several of the companies — including Google, Facebook, Microsoft and Apple — denied that the government could do so. Instead, the companies have negotiated with the government technical means to provide specific data in response to court orders, according to people briefed on the arrangements.

“Google cares deeply about the security of our users’ data,” the company said in a statement. “We disclose user data to government in accordance with the law and we review all such requests carefully. From time to time, people allege that we have created a government ‘backdoor’ into our systems, but Google does not have a ‘backdoor’ for the government to access private user data.”

While murky questions remained about the Internet company program, the confirmation of the calling log program solved a mystery that has puzzled national security legal policy observers in Washington for years: why a handful of Democrats on the Senate Intelligence Committee were raising cryptic alarms about Section 215 of the Patriot Act, the law Congress enacted after the 9/11 attacks.

Section 215 made it easier for the government to obtain a secret order for business records, so long as they were deemed relevant to a national security investigation.

Section 215 is among the sections of the Patriot Act that have periodically come up for renewal. Since around 2009, a handful of Democratic senators briefed on the program — including Ron Wyden of Oregon — have sought to tighten that standard to require a specific nexus to terrorism before someone’s records could be obtained, while warning that the statute was being interpreted in an alarming way that they could not detail because it was classified.

On Thursday, Mr. Wyden confirmed that the program is what he and others have been expressing concern about. He said he hoped the disclosure would “force a real debate” about whether such “sweeping, dragnet surveillance” should be permitted — or is even effective.

But just as efforts by Mr. Wyden and fellow skeptics, including Senators Richard J. Durbin of Illinois and Mark Udall of Colorado, to tighten standards on whose communications logs could be obtained under the Patriot Act have repeatedly failed, their criticism was engulfed in a clamor of broad, bipartisan support for the program.

“If we don’t do it,” said Senator Lindsey Graham, Republican of South Carolina, “we’re crazy.”

And Representative Mike Rogers, Republican of Michigan and the chairman of the House Intelligence Committee, claimed in a news conference that the program helped stop a significant domestic terrorist attack in the United States in the last few years. He gave no details.

It has long been known that one aspect of the Bush administration’s program of surveillance without court oversight involved vacuuming up communications metadata and mining the database to identify associates — called a “community of interest” — of a suspected terrorist.

In December 2005, The New York Times revealed the existence of elements of that program, setting off a debate about civil liberties and the rule of law. But in early 2007, Alberto R. Gonzales, then the attorney general, announced that after months of extensive negotiation, the Foreign Intelligence Surveillance Court had approved “innovative” and “complex” orders bringing the surveillance programs under its authority.


Reporting was contributed by Eric Schmitt, Jonathan Weisman

and James Risen from Washington;

Brian X. Chen from New York; Vindu Goel, Claire Cain Miller,

Nicole Perlroth, Somini Sengupta

and Michael S. Schmidt from San Francisco;

and Nick Wingfield from Seattle.

    U.S. Says It Gathers Online Data Abroad, NYT, 6.5.2013,






U.S. Is Secretly

Collecting Records of Verizon Calls


June 5, 2013
The New York Times


WASHINGTON — The Obama administration is secretly carrying out a domestic surveillance program under which it is collecting business communications records involving Americans under a hotly debated section of the Patriot Act, according to a highly classified court order disclosed on Wednesday night.

The order, signed by Judge Roger Vinson of the Foreign Intelligence Surveillance Court in April, directs a Verizon Communications subsidiary, Verizon Business Network Services, to turn over “on an ongoing daily basis” to the National Security Agency all call logs “between the United States and abroad” or “wholly within the United States, including local telephone calls.”

The order does not apply to the content of the communications.

Verizon Business Network Services is one of the nation’s largest telecommunications and Internet providers for corporations. It is not clear whether similar orders have gone to other parts of Verizon, like its residential or cellphone services, or to other telecommunications carriers. The order prohibits its recipient from discussing its existence, and representatives of both Verizon and AT&T declined to comment Wednesday evening.

The four-page order was disclosed Wednesday evening by the newspaper The Guardian. Obama administration officials at the F.B.I. and the White House also declined to comment on it Wednesday evening, but did not deny the report, and a person familiar with the order confirmed its authenticity. “We will respond as soon as we can,” said Marci Green Miller, a National Security Agency spokeswoman, in an e-mail.

The order was sought by the Federal Bureau of Investigation under a section of the Foreign Intelligence Surveillance Act, the 1978 law that regulates domestic surveillance for national security purposes, including “tangible things” which the law defines as business records. The provision was expanded by Section 215 of the Patriot Act, which Congress enacted after the 9/11 terrorist attacks.

The order was marked “TOP SECRET//SI//NOFORN,” referring to communications-related intelligence information that may not be released to noncitizens. That would make it among the most closely held secrets in the federal government, and its disclosure comes amid a furor over the Obama administration’s aggressive tactics in its investigations of leaks.

The collection of call logs is set to expire in July unless the court extends it.

The mass collection of communications logs, or calling “metadata,” was believed to be a major component of the Bush administration’s surveillance program that took place without court order under the Foreign Intelligence Surveillance Act. The order would suggest that the government later continued a form of that aspect of the program by bringing it under the Patriot Act.

The disclosure late Wednesday seemed likely to set off a new furor over the scope of government surveillance. Kate Martin of the Center for National Security Studies, a civil liberties advocacy group, said that “absent some explanation I haven’t thought of, this looks like the largest assault on privacy since the N.S.A. wiretapped Americans in clear violation of the law” under the Bush administration. “On what possible basis has the government refused to tell us that it believes that the law authorizes this kind of request?” she said.

For several years, two Democrats on the Senate Intelligence Committee, Senator Ron Wyden of Oregon and Senator Mark Udall of Colorado, have been cryptically warning that the government was interpreting its surveillance powers under that section of the Patriot Act in a way that would be alarming to the public if it knew about it.

“We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted section 215 of the Patriot Act,” they wrote last year in a letter to Attorney General Eric H. Holder Jr.

They added: “As we see it, there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows. This is a problem, because it is impossible to have an informed public debate about what the law should say when the public doesn’t know what its government thinks the law says.”

A spokesman for Senator Wyden did not respond Wednesday to a request for comment on the Verizon order.

The senators were angry because the Obama administration described Section 215 orders as being similar to a grand jury subpoena for obtaining business records, like a suspect’s hotel or credit card records, in the course of an ordinary criminal investigation. The senators said the secret interpretation of the law was nothing like that.

Section 215 of the Patriot Act made it easier to get an order from the Foreign Intelligence Surveillance Court to obtain business records so long as they were merely deemed “relevant” to a national-security investigation.

The Justice Department has denied being misleading about the Patriot Act. Department officials have acknowledged since 2009 that a secret, sensitive intelligence program is based on the law and that its statements about the matter have been accurate.

The New York Times filed a Freedom of Information Act lawsuit in 2011 seeking access to a report describing the program. But the Obama administration withheld the report as entirely classified, and a federal judge, after declined to order it released.

    U.S. Is Secretly Collecting Records of Verizon Calls, NYT, 5.6.2013,






Gitmo’s Other Prisoner


May 29, 2013
9:00 pm
The New York Times


Opinionator - A Gathering of Opinion From Around the Web


On the front page of its Memorial Day weekend edition last Friday, USA Today ran an arresting article under the headline: From Boyhood to the Battlefield. The photo of a young boy with a baseball bat over his shoulder, staring forthrightly into the camera, promised a feel-good holiday story, a promise quickly dashed by the headline’s smaller type: “These children of 9/11 died fighting its war.”

The article profiled three young men, too young at the time to have grasped the import of the events of Sept. 11, 2001, who eventually felt the call to military service. Each died this spring in Afghanistan.

The article made no mention of President Barack Obama’s speech the previous day, in which the president declared that “this war, like all wars, must end.” Clearly, the editors planned and scheduled the story some time ago, not in response to the president’s speech at the National Defense University. But if anything could underscore the urgent necessity of the recalibration the president called for, this was it.

President Obama’s articulation and defense of his policy on targeted killing by drones got the most attention. I was equally interested in what he had to say about the Guantánamo Bay prison in Cuba, where most of the 166 detainees are on a hunger strike. What the president said was not particularly new: Guantánamo is terrible advertising for the United States; he wants to close it and bring the detainees into the United States for trial and maximum-security imprisonment; and Congress won’t let him.

“There is no justification beyond politics for Congress to prevent us from closing a facility that should never have been opened,” the president said in obvious frustration, speaking an obvious truth. What occurred to me is that he, too, has become a prisoner: imprisoned not at Guantánamo but by it.

To test the validity of this observation, it’s worth looking back at the speech President Obama gave almost exactly four years earlier, at the National Archives on May 21, 2009. That speech was in many ways the more challenging assignment, a more audacious staking of ground.

The president, in office only four months, was untested on national security. Osama bin Laden was still at large. The war in Iraq was grinding on. There was no exit strategy in Afghanistan. In contrast to the decimated terrorist leadership the president depicted last week, he referred back then to the “nimble enemy” the country faced.

Yet despite those daunting circumstances, the new president’s tone four years ago was not only forceful but hopeful. There were 240 prisoners at Guantánamo then. He had earlier ordered the prison camp closed within one year, and that goal appeared well within his grasp. In the speech, the president outlined a multipart strategy: transferring detainees to domestic prisons; bringing as many as possible to trial in federal court; releasing those whom courts had already ordered freed; sending others to custody and eventual release in other countries; reserving military commission trials for those charged with violating the laws of war.

It all sounded, on that long-ago spring morning, not exactly simple, but straightforward and achievable. “As president, I refuse to allow this problem to fester,” Mr. Obama said, adding: “Our courts won’t allow it.”

Except, of course, that the courts did.

There are many reasons Guantánamo is still with us: cynical Republicans who conveniently forgot that closing Guantánamo was once a bipartisan goal (President Obama saw around that corner, warning in his speech about “the fear-mongering that emerges whenever we discuss this issue”); timorous Democrats who failed to provide him with cover when things got hot; disputes within the administration that resulted in squandered momentum; understandable concern about releasing detainees from Yemen, the biggest group among 23 nationalities represented at Guantánamo, into the chaos there. (In last week’s speech, the president announced that he was lifting the moratorium on transfers to Yemen.) The military commission system bogged down hopelessly; while President Obama expressed wonderment in 2009 that the system had produced only three convictions, four years later it has yielded only four more, and several of those remain tied up in appeals.

And then there were the courts. There are two courts that have mattered in this saga: the United States Court of Appeals for the District of Columbia Circuit and the Supreme Court. I don’t mean to suggest that judges and justices have been the main barriers to clearing out Guantánamo. But their role — more precisely, with respect to the Supreme Court, absence of a role — has played and continues to play a part that shouldn’t be overlooked as discussion resumes about the future of the island prison.

It will be five years next month since the Supreme Court has had anything to say about Guantánamo. In June 2008, the court decided Boumediene v. Bush, declaring that Guantánamo detainees had a constitutional right to challenge their confinement by means of habeas corpus petition in federal court. The court was divided 5 to 4, and the dissenting opinions were vigorous, but Justice Anthony M. Kennedy’s strongly worded majority opinion appeared to have some teeth.

In the first two years following Boumediene, the majority’s message seemed to resonate as federal district judges within the D.C. Circuit took seriously Justice Kennedy’s injunction to “conduct a meaningful review” of the basis for each detainee’s continued imprisonment. In those years, the trial judges granted habeas corpus petitions more often than not — 20 of the first 34 petitions. In ruling for the detainees, the judges typically found that the government’s evidence didn’t even meet the low standard of proof required — “preponderance of the evidence,” meaning only “more likely than not,” a far cry from the criminal-trial standard of “beyond a reasonable doubt.”

This pattern changed in mid-2010 when the appeals court, in Al-Adahi v. Obama overturned a grant of habeas corpus and instructed the district judges to take a more forgiving approach to the government’s evidence. A case against a detainee typically involves numerous elements such as the individual’s travel history, connections with others, motivation and circumstances of capture. In the Al-Adahi case, the appeals court instructed the district judges not to require the government to prove every allegation — not to require every piece of the puzzle to fit — but rather to look at the evidence as an integrated whole. The Supreme Court denied review in early 2011.

The Al-Adahi ruling figured to be a game-changer, and it was. The rate of habeas corpus grants plummeted as the district judges absorbed the message. Of the next 12 petitions, only one was granted, and the D.C. Circuit reversed that decision. In its ruling in that case, Latif v. Obama, the appeals court established a still more deferential standard for reviewing the government’s evidence. Judges should presume that the government’s evidence was reliable, the appeals court ruled, in effect shifting to the detainee the burden of refuting that presumption.

Last June, the Supreme Court refused to review the Latif decision. Several months later, the detainee, Adnan Farhan Abdul Latif, a Yemeni who had been held at Guantánamo for 10 years, was found dead in his cell of an overdose of psychiatric medication, a possible suicide. When Mr. Latif had been captured by Pakistani police near the Afghan border in 2001, he claimed to have left Yemen in search of medical care for a head wound suffered in a car accident. He had his medical records with him, and no weapon. In granting his petition for habeas corpus in the ruling that the appeals court overturned, Federal District Judge Henry H. Kennedy Jr. had found Mr. Latif’s account plausible and the government’s evidence to the contrary “not sufficiently reliable.”

It bears noting that the Obama administration has not been a passive observer of these developments. Most of the time, when habeas corpus has been granted, the Department of Justice has not only appealed to the increasingly friendly D.C. Circuit but has also opposed the detainees’ efforts to obtain Supreme Court review. (One major appeal in a military commission case will be argued before the D.C. Circuit in September. ) In the one case since 2008 that the justices did agree to hear, the Obama administration changed the facts in a way that led the Supreme Court to dismiss the case.

That case, Kiyemba v. Obama, was an appeal brought by a group of Uighurs, Chinese Muslims who had taken refuge in Afghanistan from Chinese persecution before 9/11 and who were sold for a bounty to the United States military in the chaos that followed. The Bush administration had eventually conceded that the Uighurs had never been enemy combatants, but it appealed a federal district judge’s decision ordering them released into the United States.

The D.C. Circuit overturned that ruling and the Supreme Court agreed in mid-2009 to hear the Uighurs’ appeal, over the opposition of what was now the Obama Justice Department. In February 2010, two days before its brief was due at the court in advance of the scheduled argument, the administration managed to persuade the Swiss government to admit the two remaining Uighurs for whom no other home had been found. The justices then dismissed the case, thus avoiding — and permitting the Obama administration to avoid — a potentially consequential clash of executive and judicial authority.

And still Guantánamo festers. And yet, although the president’s speech last week drew the usual negative responses from the usual suspects it could well be that time, at last, is on his side. Polls in recent weeks indicate that public opinion is shifting, for the first time since 9/11, on the appropriate balance between individual liberty and national security. A Fox News poll last month found more people unwilling than willing to sacrifice personal freedom in order to reduce the threat of terrorism. A Washington Post poll, also last month, found more people worried that the government would go “too far in compromising constitutional rights in order to investigate terrorism” than worried that the government wouldn’t go far enough. A Rasmussen Reports poll, conducted, as were the others, after the Boston Marathon bombing, found a majority of the respondents more worried about the economy than about terrorism.

What this suggests is there are, finally, diminishing returns for political demagoguery on Guantánamo and other terrorism-related issues. In his speech last week, President Obama invited the American public to reclaim its pre-9/11 equilibrium — not by assuming that the country faces no threat at all, but by recognizing that the threats it faces have been and can be managed smartly. If the public accepts that invitation, we will see not only Guantánamo closed, but the president himself freed from Guantánamo’s chains.

    Gitmo’s Other Prisoner, NYT, 29.5.2013,






Former Detainee’s Appeal

Cites Long Wait for a Trial


May 8, 2013
The New York Times


A lawyer for the only terrorist detainee to be held at the military prison at Guantánamo Bay, Cuba, and then tried in the civilian court system asked a federal appeals court on Wednesday to overturn his conviction, on the grounds that his long detention violated his right to a speedy trial.

The former detainee, Ahmed Khalfan Ghailani, who was captured in 2004, had been held for two years in a secret overseas jail run by the Central Intelligence Agency, and then later at Guantánamo. In 2009, the Obama administration moved him into the civilian system and tried him the next year on charges stemming from Al Qaeda’s 1998 bombings of two American embassies in East Africa, which killed 224 people.

Mr. Ghailani’s appeal comes amid continuing debate, revived recently by the Boston Marathon attack, over whether the criminal justice system is the proper place to try terrorists, and President Obama’s renewed call to close the prison at Guantánamo. Critics of the decision to try Mr. Ghailani in civilian court note that the jury in Manhattan acquitted him of all but one of the more than 280 charges against him; proponents argue that he was nevertheless sentenced to life in prison, in a proceeding that is far less vulnerable to legal challenge than that of military tribunals.

Much focus of the argument before a three-judge panel of the United States Court of Appeals for the Second Circuit was on Mr. Ghailani’s two years in C.I.A. custody, at a “black site,” where he was subjected to so-called enhanced interrogation techniques and, the government says, where he provided “actionable intelligence” about terrorist plots.

“We have never disputed the right of the executive or the government to question someone under those circumstances in the name of national security,” his lawyer, Peter E. Quijano, told the panel. But, he added, the two years in C.I.A. custody was excessive and too long a period “to suspend his right to a speedy trial.”

The trial judge, Lewis A. Kaplan of Federal District Court, had rejected Mr. Ghailani’s speedy trial claim, finding, among other things, that the delay had not impaired his ability to defend himself. The judge noted that his period in C.I.A. custody had “served compelling interests of national security” and that the interrogation program had been “effective in obtaining useful intelligence from Ghailani.”

Michael Farbiarz, a prosecutor, argued on Wednesday that Judge Kaplan’s ruling had not been an abuse of discretion, the legal standard. He also cited a classified finding by the judge, based on a declaration and chart provided by the C.I.A. showing how productive Mr. Ghailani’s interrogation had been.

“There was useful information being supplied,” Mr. Farbiarz said, and value for the United States to be able to “run down” information from Mr. Ghailani “without the world knowing” he was in custody.

Mr. Farbiarz noted Mr. Ghailani, during six years as a fugitive after the embassy attacks, worked “at literally the highest level of Al Qaeda on operational matters,” serving as Osama bin Laden’s bodyguard and a document forger. By the time he was captured, Mr. Farbiarz said, the United States was “in what might colloquially be called a hot war with Al Qaeda.”

“He knows things that, for the sake of saving lives, the United States needs to know,” he added.

Members of the panel, which included Judges José A. Cabranes, Pierre N. Leval and Barrington D. Parker Jr., pressed Mr. Quijano repeatedly.

At one point, Judge Cabranes asked whether Mr. Quijano conceded that the government had been entitled to keep Mr. Ghailani at a black site as an intelligence asset.

“For a period of time,” Mr. Quijano said, “but shorter than two years, and I don’t think it was a reasonable reason for delay in his trial.”

    Former Detainee’s Appeal Cites Long Wait for a Trial, NYT, 8.5.2013,






Autopsy Says Boston Bombing Suspect

Died of Gunshot


May 4, 2013
The New York Times
Wounds and Blunt Trauma



WORCESTER, Mass. — Tamerlan Tsarnaev, the 26-year-old man who the authorities say is one of two brothers who carried out the Boston Marathon bombing, died of gunshot wounds and blunt trauma, according to his death certificate.

A copy of the document, signed by Dr. Henry M. Nields, the chief medical examiner for Massachusetts, was on file at Graham Putnam & Mahoney Funeral Parlors, where Mr. Tsarnaev’s body is being kept.

Mr. Tsarnaev died after an exchange of gunfire with police officers following a pursuit on April 18, not long after the Federal Bureau of Investigation released grainy surveillance photographs showing him and his brother, Dzhokhar, at the marathon.

Law enforcement officials say the two placed the explosives that killed three people and wounded more than 260.

The night of the shootout, the authorities say, the Tsarnaev brothers shot and killed a campus police officer at the Massachusetts Institute of Technology, Sean A. Collier, and then stole a car in Boston, which they eventually drove to nearby Watertown, Mass.

There, officials say, the brothers threw explosives and exchanged gunfire with the police before Dzhokhar Tsarnaev, 19, climbed back into the car and drove off, apparently hitting his older brother. The younger brother was apprehended the next evening in Watertown and is being held at a federal medical prison in Devens, Mass.

The certificate says Tamerlan Tsarnaev’s cause of death was “gunshot wounds of torso and extremities” and also cites “blunt trauma to head and torso.” It says Mr. Tsarnaev was “shot by police then run over and dragged by motor vehicle.” He was pronounced dead on April 19 at 1:35 a.m. after being taken to Beth Israel Deaconess Medical Center. The death was ruled a homicide.

The certificate says an autopsy has been performed, but Peter A. Stefan, the owner of the funeral home, said he expected another to take place before the burial.

He said he had been contacted by lawyers for Dzhokhar Tsarnaev, who told him that they wanted to have a second autopsy performed.

As of Saturday morning, Mr. Stefan said he had not found a cemetery that would accept the body. He said he was seeking help from state and federal authorities.

“If you don’t want to bury the body, give me another option,” Mr. Stefan said with some frustration. “What am I going to do?”

Mr. Stefan has been widely criticized for accepting Mr. Tsarnaev’s body, and on Saturday his funeral parlor was guarded by a police detail.

But the funeral home also received at least a dozen calls from individuals wanting to make donations to assist with the burial, Mr. Stefan said. The funeral home said individuals should instead donate to the bombing’s victims through the One Fund Boston.

    Autopsy Says Boston Bombing Suspect Died of Gunshot, NYT, 4.5.2013,






Send Judges to Guantánamo,

Then Shut It


May 3, 2013
The New York Times



PRESIDENT OBAMA has once again pledged to close the Guantánamo Bay prison. But can he back up his brave words with decisive action?

The answer is yes, if he chooses to.

At present, legislation bars him from sending the Guantánamo detainees to the mainland United States to receive justice from the federal courts, leaving them to be tried by slow-moving military commissions that deny them many of the guarantees of civilian legal procedure. Nevertheless, the president has a way forward. He can, on his own authority, send federal judges to Guantánamo, where they could resolve the remaining cases in trials everyone can respect.

Previous presidents have established federal civilian courts on territory under American military control without going through Congress. The clearest precedent was set in postwar Germany.

Exercising his authority as commander in chief, President Harry S. Truman created a system of civilian courts in the American zone of occupation. In the 1950s, Dwight D. Eisenhower used the same power to create a special United States Court for Berlin, which remained under occupation even after the Federal Republic regained full sovereignty in western Germany. A regular federal judge presided over a criminal trial in that court as late as 1979 — a year after President Jimmy Carter gained Chief Justice Warren E. Burger’s consent to dispatch a federal district judge, Herbert J. Stern, to Berlin.

Nothing prevents President Obama from establishing a similar court at Guantánamo, where 166 prisoners remain under indefinite detention and about 100 have gone on a hunger strike. Acting under his authority as commander in chief, the president should quickly direct a team of district judges to try the detainee cases in Guantánamo under civilian criminal procedures. Such an order should also create a panel of federal judges to hear appeals.

The current chief justice, John G. Roberts Jr., could be expected to follow Burger’s precedent in recognition of President Obama’s constitutional obligation to “take care that the laws be faithfully executed.”

Decisive intervention is particularly important now, since the work of the military commissions has been interrupted by revelations that Defense Department computers gained access to e-mail messages among the defense lawyers, and potentially with their clients.

These discoveries came on the heels of reports that microphones in the courtroom and a hidden microphone in a defense lawyers’ meeting room permitted eavesdropping on confidential conversations.

Another hidden hand became visible in another episode. Since some testimony involves secrets, there was a plausible basis for allowing the military judge, Col. James L. Pohl of the Army, to control the audio stream available to journalists and spectators viewing the proceedings. But it turned out that he wasn’t the only one making these decisions. An unseen censor who the government said was working for the “original classification authority” — presumably the C.I.A. — was also in control of a cutoff switch behind the scenes.

We have reached the point of no return. Since President George W. Bush revived military commissions in 2001, half a dozen prosecutors have resigned in protest and Congress has twice passed legislation in efforts to create a system that might win public confidence.

Now the escalating hunger strike has led to forced feedings and physical confrontations in which guards have used nonlethal bullets to quell unrest. It is only a matter of time before suicide attempts further intensify the cycle of resistance and repression.

Presidential speeches will not suffice to cut short the series of tragic episodes that loom ahead. Only dramatic action will induce the prisoners, and the larger world, to take seriously America’s determination to end this legal nightmare.

Though holding the trials will address a shameful failure of the American government to deliver due process speedily, it will not solve all of the problems evident at Guantánamo. The government must also find a way to resolve the cases of prisoners who are not presently under charges but are deemed too dangerous to release, or for whom no country willing to accept them can be found.

But by joining together to bring federal judges to Guantánamo, the president and the chief justice would be doing more than vindicating the rule of law. They would be setting an example for collaboration, between the branches of government, and a commitment to seeing justice done, that might encourage Congress to take a fresh look at the other obstacles to closing the prison. Then, perhaps, Congress and Mr. Obama would finally take whatever other steps are needed to bring a decade of blunders to an end.


Bruce Ackerman, the author of “Before the Next Attack,”

and Eugene R. Fidell, the founding president

of the National Institute of Military Justice,

teach at Yale Law School.

    Send Judges to Guantánamo, Then Shut It, NYT, 3.5.2013,






Three Are Accused

of Impeding Boston Bombing Inquiry


May 1, 2013
The New York Times


They were perhaps Dzhokhar Tsarnaev’s closest friends during his two years at college, an American classmate from high school and two Russian-speaking students from Kazakhstan. The Kazakhs seemingly had money and drove expensive cars. They entertained Mr. Tsarnaev at their off-campus apartment, and he partied with them in New York. One of them lent Mr. Tsarnaev a black BMW after he smashed his Honda Civic in an accident.

And in the wake of the twin bombs that exploded last month at the finish line of the Boston Marathon, federal prosecutors now say, the three showed just how close their friendship was: two of them decided to put a backpack and fireworks linking Mr. Tsarnaev to the blasts into a black trash bag, and toss it into a Dumpster. Prosecutors say the third later lied to investigators when asked about it.

The two Kazakhs, Dias Kadyrbayev and Azamat Tazhayakov, were charged on Wednesday with destroying evidence to obstruct the federal inquiry into the marathon bombings. Their American friend, Robel K. Phillipos, was charged with lying to impede the investigation.

The story behind their arrest, detailed in lengthy affidavits, paints a vivid portrait of Mr. Tsarnaev in the days after the bombing, and portrays a dorm-room scene of confusion as the three young men, stunned to realize that their friend was being sought as a terrorist, debated whether and how to help him.

And it chillingly lays bare the skill with which Mr. Tsarnaev appears to have concealed plans for the bombing from even his most intimate associates. Three days after the blasts, as photographs of the then-unidentified suspects blanketed television and the Internet, Mr. Kadyrbayev sent Mr. Tsarnaev a text message: one photograph, he wrote, bore a marked resemblance to him.

“lol,” Mr. Tsarnaev coolly replied. “you better not text me.”

He added: “come to my room and take whatever you want.”

Later that evening, he told interrogators, he came to see that request as a thinly veiled plea to cover up his crime.

Should the three men be found guilty, they would face potentially stiff penalties: up to five years in prison for the two Kazakhs, eight years for Mr. Phillipos and up to $250,000 fines for each of the three. Mr. Kadyrbayev, 19, and Mr. Tazhayakov, 20, have been held in jail since last week, ostensibly on suspicion of violating their student visas by not attending class at the University of Massachusetts at Dartmouth, where they had studied with Mr. Tsarnaev.

All four men entered classes there in the fall of 2011, but Mr. Phillipos dropped out and returned to Cambridge, where he and Mr. Tsarnaev had attended Cambridge Ringe and Latin High School together. A university spokesman said that Mr. Kadyrbayev was not currently enrolled, and that Mr. Tazhayakov remained a student but had been suspended until the charges against him were resolved.

In one respect, the two Kazakh students seem an odd match for Mr. Tsarnaev and Mr. Phillipos. Sent from oil-rich Kazakhstan to study in the United States, Mr. Tazhayakov and Mr. Kadyrbayev appear to have come from wealthy families. Mr. Kadyrbayev’s Facebook page features photographs of him on beaches in Fort Lauderdale, Fla., and Dubai. Mr. Tazhayakov’s page indicates he comes from Atyrau, a petroleum center at the mouth of the Ural River. By contrast, the Cambridge homes of Mr. Tsarnaev and Mr. Phillipos are hard-worn apartment houses in working-class neighborhoods.

But the four quickly became close after starting classes, the affidavit and interviews with friends suggest, in part because Mr. Tsarnaev and the two Kazakh students all spoke fluent Russian. Mr. Tazhayakov struck up a friendship with Mr. Tsarnaev first, and appeared the closest to him, said Jason Rowe, a sophomore who was Mr. Tsarnaev’s freshman dorm roommate.

A Cambridge friend of Mr. Tsarnaev’s said their friendship began to ebb after Mr. Tsarnaev met the two Kazakhs. Photographs posted online suggest a deepening relationship with the foreign students; in one undated shot, Mr. Tsarnaev drapes an arm over a broadly smiling Mr. Kadyrbayev as the two sit at a kitchen table, plates of food laid out before them.

Despite dropping out of school and returning to Cambridge, Mr. Phillipos also appears to have become fast friends with the Kazakh students, visiting them frequently in the apartment they shared in New Bedford, about three miles from the Dartmouth campus.

And Mr. Kadyrbayev and Mr. Tazhayakov apparently traveled often to Cambridge, Mr. Kadyrbayev to meet “repeatedly” with the Tsarnaev family, the criminal complaint against him states.

By last year, Mr. Tsarnaev and the two Kazakhs appear to have become constant companions. A 2012 photograph, possibly from last November, shows the three posing in Times Square, bundled against the cold, the Kazakh students grinning broadly. “New York is so ratchet on black Friday it’s ridiculous,” Mr. Tsarnaev wrote on Twitter that month. “I’m on to bed son.”

That world would rapidly begin to come apart a few months later.

An affidavit by Special Agent Scott P. Cieplik of the F. B.I. released Wednesday did not detail the men’s reactions to the bombings — one of their lawyers said they had been “shocked and horrified” — but it makes clear that for days afterward, they had no inkling that Mr. Tsarnaev might have been involved.

On Wednesday, two days after the explosions, Mr. Kadyrbayev drove to Mr. Tsarnaev’s dormitory and, standing outside, chatted while Mr. Tsarnaev smoked a cigarette, the affidavit quotes Mr. Kadyrbayev as saying. Later, Mr. Tsarnaev drove to the New Bedford apartment and stayed until about midnight.

Only one detail seemed amiss. Mr. Tsarnaev, whose long and unmanageable hair had been an object of wry posts on his Twitter account, had suddenly cut his mop short.

The next day, Mr. Tazhayakov told the F.B.I., Mr. Tsarnaev drove him home from a university class, dropping him off about 4 p.m. An hour or more later, Mr. Kadyrbayev called Mr. Phillipos as he was driving to the apartment from Boston with an urgent message: turn on the television news when you get home.

Investigators had released grainy photographs of two bombing suspects, lifted from video surveillance cameras. One of the suspects, Mr. Phillipos said, looked familiar.

The sequence of events that followed, patched together from separate F.B.I. interviews with Mr. Phillipos and the two Kazakhs, is not precisely clear. Sometime before 7 p.m., the three men drove to Mr. Tsarnaev’s Pine Dale Hall dormitory room. His roommate said Mr. Tsarnaev had left a couple of hours earlier.

As the visitors watched a movie, the affidavit states, they noticed a backpack stuffed with fireworks that had been emptied of their powder. Mr. Kadyrbayev “knew when he saw the empty fireworks that Tsarnaev was involved in the bombing,” the affidavit states.

He resolved to protect him.

At 8:43 p.m., Mr. Kadyrbayev sent the text message to Mr. Tsarnaev noting his resemblance to the photographs, and read the nonchalant reply. Mr. Tazhayakov told the F.B.I. that when Mr. Kadyrbayev showed him Mr. Tsarnaev’s request to “take whatever you want,” he concluded that he would never see his friend again alive.

Later that evening, Mr. Phillipos and Mr. Tazhayakov said, the three went back to Mr. Tsarnaev’s dorm room. When they returned to their apartment, they were carrying the backpack, fireworks, a jar of Vaseline and Mr. Tsarnaev’s laptop, all of which are now in the custody of federal agents.

Mr. Phillipos initially told the F.B.I. he did not recall going to Mr. Tsarnaev’s dorm room that night, then said later that they had gone there, but left without entering, the authorities said. Only six days later would he recant: actually, Mr. Kadyrbayev texted him at 9 p.m. to “go to Jahar’s room,” where the three men took the laptop and evidence.

Back home, Mr. Phillipos said, the three “started to freak out, because it became clear from a CNN report that we were watching that Jahar was one of the Boston Marathon bombers.” Mr. Kadyrbayev asked him “if he should get rid of the stuff.”

“Do what you have to do,” he said he told him.

Shortly thereafter, the bag and the fireworks were tossed into the apartment complex Dumpster.

The next afternoon, as Mr. Tazhayakov watched, a garbage truck emptied it and drove away.


Reporting was contributed by Ian Lovett

and Jess Bidgood from Boston;

Michael S. Schmidt from Washington;

William K. Rashbaum and Serge F. Kovaleski from New York;

and Kitty Bennett from St. Petersburg, Fla.

    Three Are Accused of Impeding Boston Bombing Inquiry, NYT, 1.5.2013,






Funeral Home Accepts Suspect’s Body,

and Problems


May 3, 2013
The New York Times


WORCESTER, Mass. — Peter A. Stefan sat straight up in a leather chair in the funeral home he owns and looked purposefully at the city councilor who had come to ask him why he of all people was storing the body of Tamerlan Tsarnaev.

“How did Worcester have to get involved in all this?” said Sarai Rivera, who represents the city’s Fourth District. Onlookers gathered outside, many incredulous that the suspect in the Boston Marathon bombings had come to rest here.

“Why didn’t they send him to Russia?” Ms. Rivera asked.

“They didn’t want him either,” said Mr. Stefan, who heard last week from friends of Mr. Tsarnaev’s family. They wanted his body to go to a funeral home like his, which has experience doing Muslim burials.

“My first thought was to hide,” said Mr. Stefan, 66. “Initial reaction was, why do I need this?”

Mr. Tsarnaev was wounded in a gunfight with law officers, and then, law enforcement officials and witnesses said, was hit by a car his brother used to escape. His death certificate shows he died from gunshot wounds and blunt trauma to his head and torso, The Associated Press reported Friday night.

It seemed that nobody else wanted Mr. Tsarnaev’s body, said Mr. Stefan, who has experience laying some of society’s less venerated members to rest. “I’ve had murderers here, people that murder their kids, people that murder their parents,” he said. “A lot of hullabaloo that we’ve had here.”

So he had a two-hour meeting on Thursday with Mr. Tsarnaev’s uncle Ruslan Tsarni, and agreed to accept the body. It was released later that afternoon, but mistakenly taken to another funeral home in North Attleboro, Mass., where protesters quickly lined up. Mr. Tsarnaev’s body was transported to Mr. Stefan’s funeral home, Graham Putnam & Mahoney Funeral Parlors, shortly afterward.

Mr. Stefan said Mr. Tsarni requested a simple graveside service, after the body is washed in accordance with Muslim custom.

None of that can happen until Mr. Stefan finds a burial place; as of Friday afternoon, he had been turned down by several cemeteries.

“You call and they say, ‘We don’t want to do it,’ ” said Mr. Stefan, who said he would seek help from the F.B.I. or the state if he kept getting rejected.

“I’m not burying a terrorist, I’m burying a dead body,” Mr. Stefan said. “We’re trying to exercise some character here.”

    Funeral Home Accepts Suspect’s Body, and Problems, NYT, 3.5.2013,




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