Archive for the ‘Crime/Law Enforcement’ Category

Hell Freezes Over: Are The Feds Actually Cooperating With The NYPD In Counterterrorism?

Saturday, October 3rd, 2009

By Tommy Brown

A piece from Newsweek on the recent arrest of a mope planning to set off a bomb in NYC:

This, according to these same [NYPD and FBI] officials, is what the countdown looked like:

It is Wednesday, Sept. 9, two days before the anniversary of 9/11 and just five days before Obama is scheduled to make a major speech on Wall Street, only a few hundred yards from Ground Zero. A week after that, the U.N. General Assembly will be in full session, with some 150 heads of state gridlocking Manhattan. And now the FBI tells the NYPD it’s concerned about the activities of this guy, Najibullah Zazi, whom agents have been watching for months in Colorado. The Feds have good reason to believe he’s been trained in bombmaking in Pakistan. They say they know he’s been stockpiling the same kind of chemical components—hydrogen peroxide and acetone—used to concoct the explosives used in the horrific London subway bombings in 2005. Over the past few days surveillance suggests he’s not only been cooking them up, he’s allegedly been calling friends to make sure he gets the mixture just right. The New York City connection? He was brought up in Queens in a neighborhood long known to be full of Taliban supporters. And at this moment he is in a rental car headed east. The FBI is watching him. The bureau normally works with more than 100 NYPD detectives in the Joint Terrorism Task Force, but on this one it wants Cohen’s Intelligence Division working the case, too.

Now this is how domestic counterterrorism is supposed to work. “Breaking down stovepipes” and all that, actually sharing intel instead of engaging in the usual law enforcement agency pissing matches over jurisdiction or credit for the collar.

A couple of years ago, that kind of cooperation didn’t exist. After Police Commissioner Ray Kelly reorganized the force in the wake of 9/11 and brought in Cohen, the Intelligence Division had an extremely rocky relationship with the FBI field office. Cohen’s detectives focus on preventing new attacks, not pulling together cases for prosecution after the fact, which is what FBI agents traditionally have been tasked to do. The NYPD intelligence unit works undercover and gathers human intelligence in New York City, in the wider United States, and even overseas. FBI agents, used to believing they have a monopoly on that kind of work, wanted to keep it, and the infighting was legendary.

Despite all that, FBI Director Robert Mueller—who has tried to shift the FBI law-enforcement culture from after-the-fact prosecution toward more aggressive measures to prevent terrorism—has developed a good working relationship with Kelly. And since Joseph Demarest took over as the head of the FBI field office in New York late last year, according to law-enforcement officials, cooperation on the ground has improved dramatically. One of those officials says that the FBI has worked closely with the NYPD intel detectives on more than two dozen important cases in the past several months.

“An extremely rocky relationship” is a very very mild way of putting it concerning the interactions of the NYPD and FBI. Even before 9/11, the rivalry and contempt between “the Feebs” and the “local yokels” was the stuff of legend. In the Joint Terrorism Task Force, which was tasked with Al Qaeda investigations worldwide before 9/11, the federal agents constantly short-shrifted the NYPD detectives on cases or treated them like gofers.

After 9/11, Mayor Bloomberg and Police Commissioner Ray Kelly were so incensed at the lack of federal cooperation (and lack of federal counterterrorism funds) in the city that is the biggest terrorist target on the planet that they literally created their own CIA and a sort of municipal hybrid of the FBI and Britain’s MI-5.

The Intelligence Division sent detectives all over the country and even the world to sniff out plots against NYC before they had a chance to become operational. The fact that the Deputy Commissioner for the Intel Division is the former head of the CIA’s clandestine service says it all. The CT Divsion was focused on preemptive action and rolling up terrorist networks in the city, using the kind of preemptive action that the FBI had a deep institutional aversion to (and with good reason, but that’s another story).

It’s Sept. 11. FBI agents and Intelligence Division detectives meeting that morning believe they have a good handle on the Zazi case. They have found this source, Afzali, who knows quite a lot about Zazi and his friends. The suspect is under surveillance, and a warrant has been obtained to search his rental car and the laptop inside. Then word comes that a phone call has been intercepted from someone telling Mohammed Zazi the cops are asking about his son. The name of the caller is not the one the cops have been using. The top Intelligence Division detective at the meeting steps out of the room to phone his office and check. Yeah, that’s Afzali, he says when he comes back in.

The next day, Saturday, Najibullah Zazi is on a plane back to Denver, and there are a lot of loose ends. How much of a network was Zazi involved with? (“You study these things and they get bigger, then smaller, then bigger—like an accordion,” as one veteran counterterrorism analyst puts it.) Where are the explosives or their components? No one seems to know.

On Wednesday the 16th, the FBI in Denver began questioning Zazi directly. His father was brought in as well, and Afzali was picked up in New York. On Saturday the 19th all three men were charged with allegedly lying to federal officers. On Sept. 24, Najibullah Zazi was indicted for conspiracy to use weapons of mass destruction.

The investigation continues. More than 120 detectives from the NYPD Intelligence Division remain assigned to the case.

With the (almost entirely true) horror stories about the dearth of actual domestic security against these kind of threats, this pitch-perfect CT investigation ending in the roll-up of most of the cell before they could achieve their explosive aims is quite heartening. In fact, one may notice that the Department of Homeland Security did not seem to be involved in this investigation in any way, which speaks volumes about their effectiveness.

Hopefully, this will be the beginning of a golden era of cooperation between the NYPD Intel detectives  and the federales . Given the traditional Bureau disdain for the CIA and spook types in general (the saying goes, “FBI catches bank robbers for a living; CIA robs banks”), I wouldn’t hold my breath. While I would love to believe that all the stuff about the two agencies playing nice is as rosy as this article portrays, both the Bureau and the NYPD have a reputation for snowballing the media for positive press coverage.

Oh yeah, one more thing. The lead sentence of the article:

“The ticking bomb” is a cliché in movies about cops and spies and terrorists, but sometimes in real life, with real terrorists, it’s the real deal.

This was not a ticking time bomb scenario. This was rolling up a network before they could become operational.

Please stop it Newsweek. There is no reason to give the Jack Bauer counterterrorism crowd more ammunition for their fallacious arguments.

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Supreme Court Gets Wingnuttier

Saturday, June 20th, 2009

by Brien Jackson

You can’t make this stuff up:

In 1993, William Osburne was convicted of kidnapping, assaulting and raping a woman in Anchorage, Alaska. He spent the next 14 years of his life behind bars. Osburne insists that he is innocent, the State of Alaska has in its possession DNA evidence which will once and for all prove his guilt or innocence, and Osburne has offered to pay for DNA testing out of his own pocket. Allowing Osburne to prove—or disprove–his claim of innocence will cost Alaska literally nothing.

Nevertheless, the Supreme Court held today in a 5-4 decision by Chief Justice Roberts that Osburne is out of luck. Although Roberts conceded that “[i]t is now often possible to determine whether a biological tissue matches a suspect with near certainty,” he determined that Osburne has no right to pay for a test that could exonerate him for a crime he did not commit. Allowing Osburne to prove his potential innocence, Roberts said, risks “unnecessarily overthrowing the established system of criminal justice.”

I was going to compare the decision to Dred Scott, but that’s not really fair; Dred Scott was probably decided correctly given the law of the day. But there really isn’t anyway to defend this decision, and I’d be very interested in seeing how someone tried to defend it. Scott Lemieux seems to classify it as a case of federalism run amok but, assuming some level of seriousness by the Justices, I’m really not sure how that could be the case. The 14th amendment pretty clearly extends the due process requirement to the states, which would trump any “state’s rights” claim, it would seem. Of course, it’s entirely possible that the Justices decided to just ignore the plain text (ignoring the ver existence of the 9th amendment is a cornerstone of conservative legal theory after all), or that the conservative members onthe court simply don’t think due process includes the right to present exonerating evidence in court.

It seems to me, however, that this is probably just an isolated case, and the Justices are primarily concerned with protecting the image of the criminal justice system. If the decision is absurd (and it is), it’s really not that much more absurd than the nature of the system itself, which prizes process over truth, and then tilts heavily in its own favor upon conviction.

Breaking: The Criminal Justice System is Corrupt

Saturday, May 16th, 2009

by Brien Jackson

Via John Cole, I’m actually depressingly unsurprised by the revelation that a person was put on death row based on the testimony of an “expert witness” who was completely fabricating his testimony. I find it oddly disturbing that anyone is surprised by this, in fact. Forensic experts have a cottage industry built around doing work for police forces and prosecutors, captive juries who barely understand what they’re saying, and certainly aren’t in a position to question the veracity of their work, and judges who, principally, are concerned with maintaining the system itself. What’s more, the profession has been highly glamorized and put up as infalliable by shows like CSI. It’s good work if you can get it.

The truly outrageous part, however, is this:

West failed Plourd’s test in 2001. Yet as late as 2003, the Mississippi State Supreme Court still upheld West’s bite-mark testimony in a murder case. In rejecting an appeal by convicted murderer and death row inmate Eddie Lee Howard, the court wrote that “Just because Dr. West has been wrong a lot, does not mean, without something more, that he was wrong here.”

It’s not outrageous because it’s so specious actually, it’s outrageous because (with the large caveat that I haven’t double checked the legal standards), it’s probably a correct application of the law. One of the maor reasons I’m against the death penalty is because, in many states, the standard for getting a conviction over turned is “definitive proof of innocence.” That is, while the prosecutor is only required to prove your guilt beyond a reasonable doubt, once you’re convicted you have to definitively prove your innocence. Simply undermining facts presented as trial, even facts central to the prosecution’s case, doesn’t do that, so it doesn’t necessarily guarantee you anything. We wouldn’t want too many guilt verdicts being over turnedd, after all, that might make people question the accuracy of the system.

But there’s very little in the way of criminal-justice corruption that can surprise me at this point. And this doesn’t even get to a 5 on the meter.

 

The Rule of Law is No Excuse

Wednesday, April 29th, 2009

by Brien Jackson

Tyler Cowen ruminates on the potential downside of torture prosecutions:

At many blogs (Sullivan, Yglesias, DeLong, among others) you will find ongoing arguments for prosecuting the torturers who ran our government for a while.  I am in agreement with the moral stance of these critics but I don’t agree with their practical conclusions.  I believe that a full investigation would lead the U.S. public to, ultimately, side with torture, side with the torturers, and side against the prosecutors.  That’s why we can’t proceed and Obama probably understands that.  If another attack happened this would be all the more true.

I’m not really sure I agree with this or not, but on that note, I definitely don’t agree with the counterargument put forward (earlier) by Greenwald:

But leave aside the question of whether prosecutions would produce good or bad outcomes.  After all, the notion that the law can and should be ignored whenever we think doing so would produce good results or would constitute good policy was the engine that drove Bush lawlessness. 

This is just ridiculous. At best, it’s a dystopian outlook where outcomes are of no consequence, at worst, it’s the flip-side of the “I was just following orders” defense, wherein “I was just applying the letter of the law” becomes a way to shirk responsibilty for whatever outcomes your choices yield. You can imagine a police officer who decides to hold up someone rushing to the emergency room using it to defend himself when someone dies waiting for him to finish writing a speeding ticket on the side of the freeway. Obviously the torture question is a bit more serious, than that, but at the same time, assuming that Greenwald would agree that rushing to the hospital is a legitimate excuse for taking some leniency with traffic laws, and that police officers should be sensitive to such mitigating circumstances, then he would be admitting that discretion in applying the law is a fundamental part of a nation of laws. Or does Glenn think that local police actually should write citations to people mowing there lawns in shorts between the hours of 5 P.M. and 8 P.M. Monday to Friday?

The question then isn’t so much whether discretionary authority exists, but what circumstances make it proper to decline to prosecute. In particular it seems the question is whether the unlikelihood of earning a conviction, or the likelihood of producing a bad outcome in the larger society, is a legitimate reason to decline to prosecute someone. With regards to the former, I think the answer has to be yes. Especially considering double jeopardy protections, if a prosecutor thinks that someone has committed a crime, but feels that a conviction is unlikely, I would argue that he has a  duty not to bring charges, because doing so would prevent action if and when a conviction was more likey (assuming he’s right on both counts). The latter is a bit of a stickier question, but I would imagine there are some circumstances in which the potential cultural outcome is so dire as to compel the use of discretion, although such situations are certainly rare.

But what’s most troubling is Greenwald’s apparent lack of concern for the outcome of actions. Greenwald could certainly disagree with the premise that prosecutions are likely to produce bad outcomes, but I haven’t seen him make those arguments. Rather, I’ve seen him make arguments like the one above, that the question is completely irrelevant. Greenwald should respond to Cowen, and clearly articulate whether he agrees with Cowen’s conclusion or not. If he doesn’t, that’s certainly fair, and Greenwald can make that argument (and again, I’m not really sure if I agree with Cowen or not). But if he does, I don’t see how a logical person can rectify calling for an action you believe will produce bad outcomes. At best, it belies someone who is far too attached to rigidity, and unable to process exigent circumstances or concerns. At worst, David Broder is right, and Greenwald just wants vengeance against political opponents, consequences be damned. And I don’t want David Broder to be right.

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Robertson: If You Remember Timothy McVeigh, You Must Be Gay

Sunday, April 19th, 2009

Albeit, not the dumbest thing he’s ever said:

For the past few days, the right wing has been going after a new Department of Homeland Security (DHS) report warning that “rightwing extremists…may be gaining new recruits” because of Barack Obama’s election and the “economic downtown.” Many conservatives have been claiming that it’s an attack on veterans, while others have declared that it was a politically motivated attempt to “smear” conservatives and their tea parties.

Televangelist Pat Robertson went even further on the 700 Club yesterday. Not only did he echo the belief that the report was produced by liberal DHS officials, but he claimed that their “sexual orientation is somewhat in question.” He offered no proof for his remark:

ROBERTSON: It shows somebody down in the bowels of that organization is either a convinced left winger or somebody whose sexual orientation is somewhat in question. But it’s that kind of thing, somebody who doesn’t think that we should have abortion on demand, is labeled a terrorist! It’s outrageous!

Obviously, the “substance” of Robertson’s comment is completely wrong. The report was written by a career DHS employee and merely detailed a potential threat risk for domestic terrorism that isn’t exactly unheard of. What I don’t really understand, however, is the right’s need to attack this report. I assume it’s one thing to misrepresent the wording of the report or to simply make things up about it to try to make political hay, but on a more general level, a lot of conservatives seem to be attacking the very idea of worrying about right-wing domestic terrorism, bordering on, or crossing the line of, defending the very sort of people who might engage in such action. I suppose that’s not unusual considering the way the right has remembered things like Waco and, particularly, Ruby Ridge, but you’d think a political movement would want to distance themselves from this sort of thing. It’s not as though Oklahoma City is a matter of ancient history that’s largely removed from the public conciousness, after all.

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The Torture Memos

Friday, April 17th, 2009

by Brien Jackson

Having read through the Office of Legal Counsel memos pertaining to torture under the Bush administration, I’m downright shocked by how banal it all is. The particulars didn’t really get me, indeed, it’s almost shocking how much of this we already knew. What is deeply disturbing, as several others have already pointed out, is how utterly dry the language and “reasoning” is. This is a cold, detached, nearly inhuman endeavor to justify inflicting torture on other people, and it almost reads like they’re arguing the statutory implications of some obscure corner of the tax code or something.

I’ll leave interpreting the memos themselves to someone else because, frankly, the content is rather dull to me (as I said, there’s really nothing in them we didn’t already know). Personally, I’m more interested in the question of prosecutions now. President Obama, as everyone has pointed out by now, reassured everyone yesterday that there would be no prosecutions of CIA operatives who were involved in carrying out the acts, and I think that’s the right call, on a number of levels. From a practical standpoint, I really don’t see how you’re going to win a conviction against a lower level operative. Their defense would almost certainly be centered around the OLC’s opinion, and the idea that these were guys who just wanted to defend their country, and wanted to stay within the law, but were lied to about the legality of various actions by a group of lawyers and politicians (incredibly unpopular politicians at that) is going to be a hard sentiment to overcome in a jury trial.

But from a moral/ethical standpoint as well, I don’t really think it’s right to prosecute the operatives. It’s easy to say they should have known better but, really, should they have? Yes torturing another human, even if it’s to “defend your country,” seems very bad, and seems like the sort of thing someone couldn’t possibly do without knowing it was wrong, but consider, for a second, that we train millions of young people to kill other human beings if necessary to defend the country, or even just to carry out a mission. And certainly, in that narrow context, very few people regard that as a bad thing. And yes, we expect that military personnel should refuse to carry out an obviously unlawful order from a superior, but the military operates in a world, and under a governing code, of much less ambiguity than the CIA. This is what, to me, makes the OLC’s actions especially pernicious; CIA operatives who are genuinely unsure of the legal boundaries at which they operate should be able to trust that the legal opinions they’re getting are good ones, designed to protect them as much as anything else. On some level, these people are victims of John Yoo as well, having been exposed legal liability, and having to live with their actions for the rest of their lives. There’s also a certain amount of discomfort, for me, in punishing non-legal experts for not knowing that the advice they were being given from lawyers who had reached a very high level of authority, and so presumably are very smart people with a very deep understanding of the law, was not, in fact, legitimate.

On the other hand, I very much hope that as many policy makers as possible are prosecuted and convicted for this sordid affair. That said, I think that’s a much more difficult task than many people are allowing. For one thing, prosecuting high level political officials is going to be difficult any time, as it’s going to be extremely hard to find a jury that’s largely unbiased by their own political opinions. Moreover, the policy makers can hide behind the OLC as well; after all, we established the OLC and the taxpayers provide a salary to its staff in order for them to give legal advice to the President and other policy makers, so if said policy makers can’t actually expect that they can rely on the OLC’s opinion regarding any given policy’s legality, what’s the point of even having the office, right? This is obviously bogus, but at the same time, it seems to me that overcoming it in a court of law would be exceedingly difficult.

Which brings us back to John Yoo, who seems, to me, to be the keystone to the whole enterprise. If it can be established that Yoo’s memos were written in bad faith, that is, that he knew the opinions were utter bullshit and was writing them, with the knowledge of senior policy makers, simply to facilitate policies he knew to be illegal and to cover for senior policy makers, then it becomes possible to snare everyone else as well. The question then, is how do you prove bad faith in the writing of a legal opinion? It seems like an incredibly hard thing to do to me, which is why I hope there are smarter people than I working on this sort of thing somewhere. But I think the last thing you want to do is rush into this sort of prosecution. The last thing you want is an acquital, which would be a tacit endorsement of the policies in question and, because of double jeopardy, would likely mean the guilty parties would get away with it forever.

Update: What A.L. said. More A.L. please, much less Glenn Greenwald.

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No More Enemy Combatants

Monday, March 16th, 2009

by Brien Jackson

Well, in name at least:

The Obama administration said Friday that it would abandon the Bush administration’s term “enemy combatant” as it argues in court for the continued detention of prisoners at Guantánamo Bay, Cuba, in a move that seemed intended to symbolically separate the new administration from Bush detention policies.

But in a much anticipated court filing, the Justice Department argued that the president has the authority to detain terrorism suspects there without criminal charges, much as the Bush administration had asserted. It provided a broad definition of those who can be held, which was not significantly different from the one used by the Bush administration.

I’m not a legal expert, nor do I play one on teevee, so I’ll try to stay away from discussing the legal finer points of this decision. I will, however, say that I think a lot of the progressive disappointement over the decision is somewhat misplaced. To get right to the point, the problem facing the Obama administration is that the Bush administration screwed this pooch so badly that they really don’t have any good option for responsibly handling this matter. Also, some of the seemingly cosmetic changes actually have pretty important practical implications, according to Anonymous Liberal.

But I’d also point out that the idea of bringing criminal charges against suspected terrorists isn’t really a silver bullet either. From a diplomatic standpoint, I think you’re kidding yourself if you think that such a claim to US authority, the right to apprehend suspects and then try them in domestic courts for actions taken outside of your jurisdiction, isn’t going to be met with skepticism in its own right from other countries, particularly the other great powers. A new round of international agreements to deal specifically with this issue might be our best bet, but short of that, I think we’re probably best served by sticking with the standards laid out by the international agreements we currently have. So, as far as I can tell, our best bet is to stick as closely as possible to the Geneva standards. I really don’t see the need to fix something that wasn’t particularly broken in the first place.

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