(Via Anarchogeek 2006-12-03.)

The FBI appears to have begun using a novel form of electronic surveillance in criminal investigations: remotely activating a mobile phone’s microphone and using it to eavesdrop on nearby conversations.

The technique is called a roving bug, and was approved by top U.S. Department of Justice officials for use against members of a New York organized crime family who were wary of conventional surveillance techniques such as tailing a suspect or wiretapping him.

Nextel cell phones owned by two alleged mobsters, John Ardito and his attorney Peter Peluso, were used by the FBI to listen in on nearby conversations. The FBI views Ardito as one of the most powerful men in the Genovese family, a major part of the national Mafia.

The surveillance technique came to light in an opinion published this week by U.S. District Judge Lewis Kaplan. He ruled that the roving bug was legal because federal wiretapping law is broad enough to permit eavesdropping even of conversations that take place near a suspect’s cell phone.

Kaplan’s opinion said that the eavesdropping technique functioned whether the phone was powered on or off. Some handsets can’t be fully powered down without removing the battery; for instance, some Nokia models will wake up when turned off if an alarm is set.

… A BBC article from 2004 reported that intelligence agencies routinely employ the remote-activiation method. A mobile sitting on the desk of a politician or businessman can act as a powerful, undetectable bug, the article said, enabling them to be activated at a later date to pick up sounds even when the receiver is down.

For its part, Nextel said through spokesman Travis Sowders: We’re not aware of this investigation, and we weren’t asked to participate.

Other mobile providers were reluctant to talk about this kind of surveillance. Verizon Wireless said only that it works closely with law enforcement and public safety officials. When presented with legally authorized orders, we assist law enforcement in every way possible.

A Motorola representative said that your best source in this case would be the FBI itself. Cingular, T-Mobile, and the CTIA trade association did not immediately respond to requests for comment.

… Surreptitious activation of built-in microphones by the FBI has been done before. A 2003 lawsuit revealed that the FBI was able to surreptitiously turn on the built-in microphones in automotive systems like General Motors’ OnStar to snoop on passengers’ conversations.

When FBI agents remotely activated the system and were listening in, passengers in the vehicle could not tell that their conversations were being monitored.

— Declan McCullagh and Anne Broache, c|Net News (2006-12-01): FBI taps cell phone mic as eavesdropping tool

As uninteresting as I may be to the FBI or other government spooks, I can’t say that I’m particularly reassured by this little private-public partnership, or by its innovative steps towards a more robust Stasi-statism.

If you want to say something without sharing it with government agents, the best thing to do is to leave your cell phone in the car, or to remove the battery until you finish talking.

Note also the following:

This week, Judge Kaplan in the southern district of New York concluded that the roving bugs were legally permitted to capture hundreds of hours of conversations because the FBI had obtained a court order and alternatives probably wouldn’t work.

The FBI’s applications made a sufficient case for electronic surveillance, Kaplan wrote. They indicated that alternative methods of investigation either had failed or were unlikely to produce results, in part because the subjects deliberately avoided government surveillance.

Bill Stollhans, president of the Private Investigators Association of Virginia, said such a technique would be legally reserved for police armed with court orders, not private investigators.

There is no law that would allow me as a private investigator to use that type of technique, he said. That is exclusively for law enforcement. It is not allowable or not legal in the private sector. No client of mine can ask me to overhear telephone or strictly oral conversations.

— Declan McCullagh and Anne Broache, c|Net News (2006-12-01): FBI taps cell phone mic as eavesdropping tool

And that’s precisely what’s wrong with it. You and I have no right at all to treat our neighbors like this, and neither does any agent that we might voluntarily hire. Judges tolerate this kind of snooping only from government agencies such as the FBI, and then only because the prerogatives of the National Security state are taken to confer special privileges to its anointed agents and to rob ordinary folks like you and me of the privacy and immunities we would ordinarily expect. But putting on a government badge actually does nothing at all to confer the virtue, the knowledge, or the right to be trusted with that kind of invasive power. If private citizens, who at least are spending their own money and are in principle accountable for their actions, cannot be trusted with the power to snoop on their neighbors like this, then a secretive armed faction, which has a long history of criminal misconduct, and which is in effect accountable to none save God alone, certainly cannot be trusted with it, either.

Further reading:

• GT 2006-05-22: Spy vs. Spy
• GT 2005-11-05: Dramatic Irony, Part II
• GT 2006-01-11: The A Fortiori War Powers Quiz, Take One
• GT 2006-01-05: An Open Question for Constitutionalist Liberals

You know, I hear people say, Well, civil war this, civil war that. The Iraqi people decided against civil war when they went to the ballot box. And a unity government is working to respond to the will of the people.

— George W. Bush, August 7, 2006

Well, then, good to hear that’s been cleared up.

Maybe next we can all have a vote on the nuclear arms race, or perhaps the Second Coming of Jesus.

(Via Reason November 2006, and Crooks and Liars 2006-08-07.)

(Link via Le Revue Gauche 2006-10-14.)

But remember, it doesn’t really count as torture unless a government lawyer decides that it’s bad enough to count.

In a new court filing on behalf of alleged dirty bomber Jose Padilla, his lawyers allege that government interrogators forced him to take LSD, Gerstein reported.

Additionally, Padilla was given drugs against his will, believed to be some form of lysergic acid diethylamide (LSD) or phencyclidine (PCP), to act as a sort of truth serum during his interrogations, he quotes the filing.

— Justin Rood, TPMmuckraker (2006-10-12): Is U.S. Government Using LSD for Interrogations?

I have no way of knowing how credible Padilla’s specific claims are. But I do know this:

… in 2002, Justice Department lawyers carefully considered the issue and advised the White House that it was okay. In their view, it was acceptable to force detainees to ingest mind-altering substances, as long as it was not intended to cause months-long bouts of serious mental illness.

How do we know that? Because in August 2002, the Justice Department gave then-White House counsel Alberto Gonzales a 50-page document saying so. And a follow-up document in 2004 reaffirmed it.

The now-infamous 2002 Bybee Memo was leaked to the press in 2004, at which time the administration quickly disavowed it. (In December 2004, Justice released a new version of guidance for detainee treatment.)

For nearly two years, the Bybee Memo was the administration’s guiding document for how detainees were to be treated. The document which replaced it does not appear to substantively alter its conclusions on forced drug use by detainees.

In the 2002 Bybee Memo, then-Assistant Attorney General Jay S. Bybee (now a federal appellate judge) concluded that giving detainees mind altering substances (that’s a commonly used synonym for drugs, he noted for the squares in the White House) was legal, as long as doing so did not cause prolonged mental harm by disrupt[ing] profoundly the senses or personality, and was not intended to do so.

Bybee wrote that conditions such as months-long bouts of post-traumatic stress disorder or even chronic depression could be considered prolonged mental harm. As for what constituted a profound disruption of senses or personality that would cause such long-term suffering, he included:

• the inabliity to retain any new information or recall information about things previously of interest to the individual.

• deterioration of language function, e.g., repeating sounds or words over and over again;

• impaired ability to execute simple motor activities, e.g., inability to dress or wave goodbye;

• inability to recognize and identify objects such as chairs or pencils despite normal visual functioning;

• the onset of ‘brief psychotic disorder, in which a detainee suffers psychotic symptoms, including. . . delusions, hallucinations, or even a catatonic state [which] can last for one day or even one month;

and more. (These examples, of course, are in no way intended to be an exhaustive list, Bybee noted.)

Oh — and for this to constitute torture, the government handler who’s forcing drugs into the detainee has to specifically intend to cause prolonged mental harm, according to Bybee.

— Justin Rood, TPMmuckraker (2006-10-13): LSD Mystery: In 2002, Justice Dept. OK’d Dosing Detainees

Please bear in mind that this government has no particular qualms about forcing psychotropic drugs on prisoners against their will, if they find it useful to deliberately destroy the prisoner’s sense of reality in the course of an interrogation, just as long as the psychotic break that they force on you wasn’t specifically intended to be more prolonged than a government lawyer thinks it ought to be.

Welcome to life in Red State America.

Further reading:

• GT 2006-05-11: Free Carol Fischer! State of Ohio puts a political dissident into psychiatric confinement
• GT 2002-08-10: Judge Doumar has made his ruling; now let him enforce it.
• GT 2002-06-11: An Important Update from the War Information Council

Secretary of Defense Donald Rumsfeld, meeting with troops in Qatar, 28 April 2003:

And there have not been large numbers of civilian casualties because the coalition took such great care to protect the lives of innocent civilians as well as holy sites. … When the dust is settled in Iraq, military historians will study this war. They’ll examine the unprecedented combination of power, precision, speed, flexibility and, I would add also, compassion that was employed.

General Tommy Franks, Bagram Air Force Base, 19 March 2002:

I don’t believe you have heard me or anyone else in our leadership talk about the presence of 1,000 bodies out there, or in fact how many have been recovered. You know we don’t do body counts.

Donald Rumsfeld, interview on FOX News Sunday, 9 November 2003:

Well, we don’t do body counts on other people ….

Gilbert Burnham, Shannon Doocy, Elizabeth Dzeng, Riyadh Lafta, and Les Roberts (principal authors): The Human Cost of the War in Iraq: A Mortality Study, 2002–2006:

A new household survey of Iraq has found that approximately 600,000 people have been killed in the violence of the war that began with the U.S. invasion in March 2003.

The survey was conducted by an American and Iraqi team of public health researchers. Data were collected by Iraqi medical doctors with analysis conducted by faculty of the Johns Hopkins School of Public Health. The results will be published in the British medical journal, The Lancet.

The survey is the only population-based assessment of fatalities in Iraq during the war. The method, a survey of more than 1800 households randomly selected in clusters that represent Iraq's population, is a standard tool of epidemiology and is used by the U.S. Government and many other agencies.

The survey also reflects growing sectarian violence, a steep rise in deaths by gunshots, and very high mortality among young men. An additional 53,000 deaths due to non-violent causes were estimated to have occurred above the pre-invasion mortality rate, most of them in recent months, suggesting a worsening of health status and access to health care.

Methods: Between May and July 2006 a national cluster survey was conducted in Iraq to assess deaths occurring during the period from January 1, 2002, through the time of survey in 2006. Information on deaths from 1,849 households containing 12,801 persons was collected. This survey followed a similar but smaller survey conducted in Iraq in 2004. Both surveys used standard methods for estimating deaths in conflict situations, using population-based methods.

Key Findings: Death rates were 5.5/1000/year pre-invasion, and overall, 13.2/1000/year for the 40 months post-invasion. We estimate that through July 2006, there have been 654,965 excess deaths–fatalities above the pre-invasion death rate–in Iraq as a consequence of the war. Of post-invasion deaths, 601,027 were due to violent causes. Non-violent deaths rose above the pre-invasion level only in 2006. Since March 2003, an additional 2.5% of Iraq's population have died above what would have occurred without conflict.

The proportion of deaths ascribed to coalition forces has diminished in 2006, though the actual numbers have increased each year. Gunfire remains the most common reason for death, though deaths from car bombing have increased from 2005. Those killed are predominantly males aged 15-44 years.

…

Deaths were recorded only if the person dying had lived in the household continuously for three months before the event. In cases of death, additional questions were asked in order to establish the cause and circumstances of deaths (while considering family sensitivities). At the conclusion of the interview in a household where a death was reported, the interviewers were to ask for a copy of the death certificate. In 92% of instances when this was asked, a death certificate was present.

White House Press Conference, 11 October 2006:

Q Thank you, Mr. President. Back on Iraq. A group of American and Iraqi health officials today released a report saying that 655,000 Iraqis have died since the Iraq war. That figure is 20 times the figure that you cited in December, at 30,000. Do you care to amend or update your figure, and do you consider this a credible report?

George Bush: No, I don’t consider it a credible report. Neither does General Casey and neither do Iraqi officials. I do know that a lot of innocent people have died, and that troubles me and it grieves me. And I applaud the Iraqis for their courage in the face of violence. I am amazed that this is a society which so wants to be free that they’re willing to — that there’s a level of violence that they tolerate. And it’s now time for the Iraqi government to work hard to bring security in neighborhoods so people can feel at peace.

No question, it’s violent, but this report is one — they put it out before, it was pretty well — the methodology was pretty well discredited. But I talk to people like General Casey and, of course, the Iraqi government put out a statement talking about the report.

Q — the 30,000, Mr. President? Do you stand by your figure, 30,000?

Bush: You know, I stand by the figure. A lot of innocent people have lost their life — 600,000, or whatever they guessed at, is just — it’s not credible. Thank you.

Harry Frankfurt, On Bullshit (1986/2005):

One of the most salient features of our culture is that there is so much bullshit. …The realms of advertising and of public relations, and the nowadays closely related realm of politics, are replete with instances of bullshit so unmitigated that they can serve among the most indisputable and classic paradigms of the concept.

Further reading:

• Lindsay Beyerstein, Majikthise (2006-10-11): Over half a million additional deaths in Iraq since US invasion
• Glenn Greenwald, Unclaimed Territory (2006-10-11): Counting Iraqi Deaths

If you were listening to Morning Edition on NPR a couple of days ago, you had a remarkable opportunity to hear the Banality of Evil demonstrated concretely for you, within your own earshot. I’m talking about Steve Inskeep’s interview with John Yoo, a former lawyer for the Bush administration. Here are some of his remarks on the recently-passed Star Chamber law. I’ll reprint them, but you really must listen to Yoo to understand it fully–there is no way to convey the sheer blandness of Yoo’s plain-spoken, calm explanation and apologetics for the most despicable sort of Stasi-statism.

Inskeep: Now [if you’re a citizen accused of being an enemy combatant] you can challenge your status in court, but if you lose that, are you entitled to a trial, as a U.S. citizen?

Yoo: No, and that’s something that the Supreme Court made clear two years ago, is that if you are an enemy combatant, there is no constitutional requirement that you get a criminal trial. You can be held until hostilities are over.

Of course, the rules for imprisoning enemy soldiers were developed in a context where hostilities meant wars between two or more particular States, which had declared beginnings and definite endings. How long will it take for these hostilities, which are part of an undeclared global war waged against a vaguely-specified enemy with no identifiable central authority, and pursued with no defined conditions for victory, for surrender, or for truce, to count as over? But we’d best hurry along. Now that you are being held, quite possibly until you die in prison….

Inskeep: Now what if you’re a non-citizen, what happens then? Same scenario. The government has some suspicions about you, they think you’ve done something, they arrest you, they say you’re an enemy combatant, you disagree. What can you do?

Yoo: Well, first, according to the law passed by Congress last week, I’d have the right to go to what’s called a combatant status review tribunal, which is set up by the Defense Department, where I’d have a hearing, where I could challenge the evidence against me, that I’m an enemy combatant.

Oh, well then. That sounds reasonable enough.

Inskeep: –Wait, let me stop you for a second. When you go to that hearing, do you get a lawyer?

Yoo: I believe you don’t get a lawyer. You have representation from an officer, but not necessarily one who’s a military lawyer.

Oh.

Inskeep: And when you say that you could challenge your detention, how would you gather evidence to show that you’re not an enemy combatant?

Yoo: Well, first you can tell your own story, and also I think you would have the abliity to see unclassified evidence against you, and to challenge it.

Um.

Inskeep: You said unclassified evidence. So classified evidence, that the government says, We have evidence against you and we can’t share it with you, that’s the end of the story?

Yoo: I believe so. I believe that classified evidence is not provided to the defendant. It’s not even provided under the military commissions, or often in civilian trials, even, for terrorism or spying.

Well.

Inskeep: If you’re an enemy combatant, who decides if you ever get a full-blown trial–a military commission trial as it’s been called?

Yoo: That’s ultimately up to the President. I think it’s still up to the President and the Secretary of Defense who’s going to be tried by a military commission.

Inskeep: The government will decide that when it’s in the government’s best interest, a trial will be held, and when it’s not, the person will be held without a trial?

Yoo: That’s right.

Full stop.

Then Inskeep asks the next question.

Inskeep: Do you think it’s inevitable that some people who are innocent are going to end up in this system, spending years and years at Guantanmo Bay?

Yoo: There’s no perfect system. I agree, Steve, there’s always the chance that there will be people who are detained who are not enemy combatants. The same is true of our criminal justice system. There’s no doubt that we have people in the criminal justice system who are innocent. That’s why we have all these processes, that’s why we have all these appeals levels, is to try to correct any mistakes that were made, and prevent errors.

Inskeep: You said there’s always the chance. I mean, isn’t a certainty, especially given that some cases have already been found, to be almost indisputably cases of people who were innocent being held at Guantanamo for a long time, or held elsewhere.

Yoo: I would say, look, in wartime, there’s always going to be people who might be picked up. It’s also the case in wartime that you have mistaken targets attacked and people killed by accident. But my only point is that you also have that in the criminal justice system. No system is going to be perfect.

Inskeep: Do you, as a lawyer who’s worked in the Bush administration, and obviously thought about these isues, think that this law does everything possible to prevent error?

Yoo: Well, I think we could probably do a lot more, but it would be a lot more expensive. I think what we have here is something that’s very close to the civilian system.

Inskeep: Are you saying it would be too expensive to give habeas corpus protection to non-citizens?

Yoo: Yeah, I think that’s what Congress decided when it passed this law last week, is that, you could have the possibility of hundreds and hundreds of habeas corpus proceedings, and they do impose a cost. They impose a cost on our judicial system. They impose a cost on our government, on our military. Think about… you’d have to pull in witnesses in from abroad, you’d have the cost of potentially releasing classified information… all this process does have a cost on our system. It’s not free.

Inskeep: John Yoo is author of War by Other Means, which is out this week.

Good night, and good luck.