Sunday, June 19, 2011

Killing Democracy One File at a Time: Justice Department Loosens FBI Domestic Spy Guidelines

While the Justice Department is criminally inept, or worse, when it comes to prosecuting corporate thieves who looted, and continue to loot, trillions of dollars as capitalism's economic crisis accelerates, they are extremely adept at waging war on dissent.

Last week, The New York Times disclosed that the FBI "is giving significant new powers to its roughly 14,000 agents, allowing them more leeway to search databases, go through household trash or use surveillance teams to scrutinize the lives of people who have attracted their attention."

Under "constitutional scholar" Barack Obama's regime, the Bureau will revise its "Domestic Investigations and Operations Guide." The "new rules," Charlie Savage writes, will give agents "more latitude" to investigate citizens even when there is no evidence they have exhibited "signs of criminal or terrorist activity."

As the Bill of Rights Defense Committee (BORDC) recently pointed out, "When presented with opportunities to protect constitutional rights, our federal government has consistently failed us, with Congress repeatedly rubber-stamping the executive authority to violate civil liberties long protected by the Constitution."

While true as far it goes, it should be apparent by this late date that no branch of the federal government, certainly not Congress or the Judiciary, has any interest in limiting Executive Branch power to operate lawlessly, in secret, and without any oversight or accountability whatsoever.

Just last week, The New York Times revealed that the Bush White House used the CIA "to get" academic critic Juan Cole, whose Informed Comment blog was highly critical of U.S. imperial adventures in Iraq and Afghanistan.

The former CIA officer and counterterrorism official who blew the whistle and exposed the existence of a Bush White House "enemies list,", Glenn L. Carle, told the Times, "I couldn't believe this was happening. People were accepting it, like you had to be part of the team."

Ironically enough, the journalist who broke that story, James Risen, is himself a target of an Obama administration witchhunt against whistleblowers. Last month, Risen was issued a grand jury subpoena that would force him to reveal the sources of his 2006 book, State of War.

These latest "revisions" will expand the already formidable investigative powers granted the Bureau by former Attorney General Michael B. Mukasey.

Three years ago, The Washington Post informed us that the FBI's new "road map" permits agents "to recruit informants, employ physical surveillance and conduct interviews in which agents disguise their identities" and can pursue "each of those steps without any single fact indicating a person has ties to a terrorist organization."

Accordingly, FBI "assessments" (the precursor to a full-blown investigation) already lowered by the previous administration will, under Obama, be lowered still further in a bid to "keep us safe"--from our constitutional rights.

The Mukasey guidelines, which created the "assessment" fishing license handed agents the power to probe people and organizations "proactively" without a shred of evidence that an individual or group engaged in unlawful activity.

In fact, rather than relying on a reasonable suspicion or allegations that a person is engaged in criminal activity, racial, religious or political profiling based on who one is or on one's views, are the basis for secretive "assessments."

Needless to say, the presumption of innocence, the bedrock of a republican system of governance based on the rule of law, like the right to privacy, becomes one more "quaint" notion in a National Security State. In its infinite wisdom, the Executive Branch has cobbled together an investigative regime that transforms anyone, and everyone, into a suspect; a Kafkaesque system from which there is no hope of escape.

Under Bushist rules, snoops were required to open an inquiry "before they can search for information about a person in a commercial or law enforcement database," the Times reported. In other words, somewhere in the dank, dark bowels of the surveillance bureaucracy a paper trail exists that just might allow you to find out your rights had been trampled.

But our "transparency" regime intends to set the bar even lower. Securocrats will now be allowed to rummage through commercial databases "without making a record about their decision."

The ACLU's Michael German, a former FBI whistleblower, told the Times that "claiming additional authorities to investigate people only further raises the potential for abuse."

Such abuses are already widespread. In 2009 for example, the ACLU pointed out that "Anti-terrorism training materials currently being used by the Department of Defense (DoD) teach its personnel that free expression in the form of public protests should be regarded as 'low level terrorism'."

As I reported in 2009, citing a report by the Electronic Frontier Foundation (EFF), the Bureau's massive Investigative Data Warehouse (IDW), is a data-mining Frankenstein that contains more "searchable records" than the Library of Congress.

EFF researchers discovered that "In addition to storing vast quantities of data, the IDW provides a content management and data mining system that is designed to permit a wide range of FBI personnel (investigative, analytical, administrative, and intelligence) to access and analyze aggregated data from over fifty previously separate datasets included in the warehouse."

Accordingly, "the FBI intends to increase its use of the IDW for 'link analysis' (looking for links between suspects and other people--i.e. the Kevin Bacon game) and to start 'pattern analysis' (defining a 'predictive pattern of behavior' and searching for that pattern in the IDW's datasets before any criminal offence is committed--i.e. pre-crime)."

Once new FBI guidelines are in place, and congressional grifters have little stomach to challenge government snoops as last month's disgraceful "debate" over renewing three repressive provisions of the USA Patriot Act attest, "low-level" inquiries will be all but impossible to track, let alone contest.

Despite a dearth of evidence that dissident groups or religious minorities, e.g., Muslim-Americans have organized violent attacks in the heimat, the new guidelines will permit the unlimited deployment of "surveillance squads" that "surreptitiously follow targets."

In keeping with the Bureau's long-standing history of employing paid informants and agents provocateurs such as Brandon Darby and a host of others, to infiltrate and disrupt organizations and foment violence, rules governing "'undisclosed participation' in an organization by an F.B.I. agent or informant" will also be loosened.

The Times reports that the revised manual "clarifies a description of what qualifies as a "sensitive investigative matter"--investigations, at any level, that require greater oversight from supervisors because they involve public officials, members of the news media or academic scholars."

According to the Times, the manual "clarifies the definition of who qualifies for extra protection as a legitimate member of the news media in the Internet era: prominent bloggers would count, but not people who have low-profile blogs."

In other words, if you don't have the deep pockets of a corporate media organization to defend you from a government attack, you're low-hanging fruit and fair game, which of course, makes a mockery of guarantees provided by the First Amendment.

As I reported last month, with requests for "National Security Letters" and other opaque administrative tools on the rise, the Obama administration has greatly expanded already-repressive spy programs put in place by the previous government.

Will data extracted by the Bureau's Investigative Data Warehouse or its new Data Integration and Visualization System retain a wealth of private information gleaned from commercial and government databases on politically "suspect" individuals for future reference? Without a paper trail linking a person to a specific inquiry you'd have no way of knowing.

Even should an individual file a Freedom of Information Act request demanding the government turn over information and records pertaining to suspected wrongdoing by federal agents, as Austin anarchist Scott Crow did, since the FBI will not retain a record of preliminary inquiries, FOIA will be hollowed-out and become, yet another, futile and meaningless exercise.

And with the FBI relying on secret legal memos issued by the White House Office of Legal Counsel justifying everything from unchecked access to internet and telephone records to the deployment of government-sanctioned malware on private computers during "national security" investigations, political and privacy rights are slowly being strangled.

Sunday, June 12, 2011

The Fire This Time. Pentagon Ramps-Up Cyberwar Plans

As the Obama administration expands Bush-era surveillance programs over the nation's electronic communications' infrastructure, recent media reports provide tantalizing hints of Pentagon plans for waging cyberwar against imperialism's geopolitical rivals.

On May 31, The Wall Street Journal disclosed that the Pentagon now asserts "that computer sabotage coming from another country can constitute an act of war, a finding that for the first time opens the door for the U.S. to respond using traditional military force."

One sound bite savvy wag told journalist Siobhan Gorman, "if you shut down our power grid, maybe we will put a missile down one of your smokestacks."

Also on May 31, The Washington Post reported that America's shadow warriors have "developed a list of cyber-weapons and -tools, including viruses that can sabotage an adversary's critical networks, to streamline how the United States engages in computer warfare."

That "classified list of capabilities has been in use for several months," with the approval of "other agencies, including the CIA." Post reporter Ellen Nakashima informed us that this "sensitive program ... forms part of the Pentagon's set of approved weapons or 'fires' that can be employed against an enemy."

Not to be left in the dust by their U.S. and Israeli allies, The Guardian reported that the "UK is developing a cyber-weapons programme that will give ministers an attacking capability to help counter growing threats to national security from cyberspace."

Armed Forces Minister Nick Harvey told The Guardian that "action in cyberspace will form part of the future battlefield" and will become "an integral part of the country's armoury."

It appears that Western military establishments are in the grips of a full-blown cyber panic or, more likely, beating the war drums as they roll out new product lines with encouragement from corporate partners eager to make billions developing new weapons systems for their respective political masters.

And why not? As Bloomberg News reported back in 2008, both Lockheed Martin and Boeing "are deploying forces and resources to a new battlefield: cyberspace."

Bloomberg averred that military contractors and the wider defense industry are "eager to capture a share of a market that may reach $11 billion in 2013," and "have formed new business units to tap increased spending to protect U.S. government computers from attack."

Linda Gooden, executive vice president of Lockheed's Information Systems & Global Services unit told Bloomberg, "The whole area of cyber is probably one of the faster-growing areas" of the U.S. budget. "It's something that we're very focused on."

As part of the new strategy to be released later this month, the Post reports that the military needs "presidential authorization to penetrate a foreign computer network and leave a cyber-virus that can be activated later."

However, when it comes to espionage or other activities loudly denounced as illegal intrusions into the sacrosanct world of government and corporate crime and corruption, the "military does not need such approval."

We're told such "benign" activities "include studying the cyber-capabilities of adversaries or examining how power plants or other networks operate."

"Military cyber-warriors," Nakashima writes, "can also, without presidential authorization, leave beacons to mark spots for later targeting by viruses," an "unnamed military official" told the Post.

But wait, aren't those precisely the types of covert actions decried by politicians, media commentators and assorted experts when they're directed against the heimat? Is there a double standard here? Well, of course there is!

Along with a flurry of Defense Department leaks designed to ratchet-up the fear factor and lay the groundwork for billions more from Congress for giant defense firms servicing the Pentagon's unquenchable thirst for ever-deadlier weapons systems--cyber, or otherwise--"threat inflation" scaremongering described by researchers Jerry Brito and Tate Watkins in their essential paper, Loving the Cyber Bomb?, take center stage.

Just last week, former Democratic party congressional hack, current CIA Director and Obama's nominee to lead the Defense Department, Leon Panetta, told the Senate Armed Services Committee that "the next Pearl Harbor that we confront could very well be a cyberattack that cripples America's electrical grid and its security and financial systems," The Christian Science Monitor reported.

Cripple the financial system? Why greedy banksters and corporate bottom-feeders seem to be doing a splendid job of it on their own without an assist from shadowy Russian hackers, the People's Liberation Army or LulzSec pranksters!

However, the Pentagon's propaganda blitz (courtesy of a gullible or complicitous corporate media, take your pick) is neither meant to inform nor educate the public but rather, to conceal an essential fact: the United States is already engaged in hostile cyber operations against their geopolitical rivals--and allies--and have been doing so since the 1990s, if not earlier, as journalist Nicky Hager revealed when he blew the lid off NSA's Echelon program in a 1997 piece for CovertAction Quarterly.

Botnets and Root Kits: What the HBGary Hack Revealed

When The Wall Street Journal informed readers that the "Pentagon's first formal cyber strategy ... represents an early attempt to grapple with a changing world in which a hacker could pose as significant a threat to U.S. nuclear reactors, subways or pipelines as a hostile country's military," what the Journal didn't disclose is that the Defense Department is seeking the technological means to do just that.

Implying that hacking might soon constitute an "act of war" worthy of a "shock and awe" campaign, never mind that attributing an attack by a criminal or a state is no simple matter, where would the Pentagon draw the line?

After all as The Guardian reported, with the "underground world of computer hackers ... so thoroughly infiltrated in the US by the FBI and secret service," will some enterprising criminal acting as a catspaw for his/her U.S. handlers, gin-up an incident thereby creating Panetta's "cyber Pearl Harbor" as a pretext for a new resource war?

While fanciful perhaps, if recent history is any guide to future American actions (can you say "Iraq" and "weapons of mass destruction"), such fabrications would have very deadly consequences for those on the wrong side of this, or some future, U.S. administration.

But we needn't speculate on what the Pentagon might do; let's turn our attention instead to what we know they're doing already.

Back in February, The Tech Herald revealed that the private security firms HBGary Federal, HBGary, Palantir Technologies and Berico Technologies were contacted by the white shoe law firm Hunton & Williams on behalf of corporate clients, Bank of America and the U.S. Chamber on Commerce, to "develop a strategic plan of attack against Wikileaks."

The scheme concocted by "Team Themis" was to have included a dirty tricks campaign targeting journalists, WikiLeaks supporters, their families and the whistleblowing group itself through "cyber attacks, disinformation, and other potential proactive tactics."

But when the CEO of HBGary Federal boasted to the Financial Times that he had penetrated the cyber-guerrilla collective Anonymous, the group struck back and pwned ("owned") HBGary's allegedly "secure" servers, seizing a treasure trove of some 70,000 internal emails and other documents, posting them on the internet.

As I reported earlier this year, Team Themis looked like a smart bet. After all, HBGary and the other firms touted themselves as "experts in threat intelligence and open source analysis" with a focus on "Information Operations (INFOOPS); influence operations, social media exploitation, new media development."

Palantir, which was fronted millions of dollars by the CIA's venture capitalist arm, In-Q-Tel, bragged that they could deliver "the only platform that can be used at the strategic, operational, and tactical levels within the US Intelligence, Defense, and Law Enforcement Communities," and that they can draw "in any type of data, such as unstructured message traffic, structured identity data, link charts, spreadsheets, SIGINT, ELINT, IMINT and documents."

In other words, these firms subsisted almost entirely on U.S. government contracts and, in close partnership with mega-giant defense companies such as General Dynamics, SRA International, ManTech International and QinetiQ North America, were actively building cyber weapons for the Defense Department.

In the aftermath of the HBGary sting, investigative journalist Nate Anderson published an essential piece for Ars Technica which described how HBGary and other firms were writing "backdoors for the government."

"In 2009," Anderson wrote, "HBGary had partnered with the Advanced Information Systems group of defense contractor General Dynamics to work on a project euphemistically known as 'Task B.' The team had a simple mission: slip a piece of stealth software onto a target laptop without the owner's knowledge."

HBGary's CEO Greg Hoglund's "special interest," Anderson reported, "was in all-but-undetectable computer 'rootkits,' programs that provide privileged access to a computer's innermost workings while cloaking themselves even from standard operating system functions. A good rootkit can be almost impossible to remove from a running machine--if you could even find it in the first place."

The secret-shredding web site Public Intelligence published HBGary's 2008 paper, Windows Rootkit Analysis Report. Amongst the nuggets buried within its 243 pages we learned that Hoglund suggested to his secret state and corporate clients that "combining deployment of a rootkit with a BOT makes for a very stealth piece of malicious software."

Readers should recall that back in 2008, an article published in the influential Armed Forces Journal advocated precisely that.

Col. Charles W. Williamson III's piece, "Carpet Bombing in Cyberspace," advocated "building an robot network (botnet) that can direct such massive amounts of traffic to target computers that they can no longer communicate and become no more useful to our adversaries than hunks of metal and plastic."

It would appear that the project envisioned by HBGary and General Dynamics would combine the stealthy features of a rootkit along with the destructive capabilities of a botnet.

One can only presume that defense firms are building malware and other attack tools for the Defense Department, the CIA, the National Security Agency and USCYBERCOM, and that they constitute the short list of "approved weapons or 'fires'" alluded to by The Washington Post.

A 2009 HBGary contract proposal released by Public Intelligence, DoD Cyber Warfare Support Work Statement, disclosed that the "contract will include efforts to examine the architecture, engineering, functionality, interface and interoperability of Cyber Warfare systems, services and capabilities at the tactical, operational and strategic levels, to include all enabling technologies."

The firm proposed an "operational exercise design and construction," as well as "operations and requirements analysis, concept formulation and development, feasibility demonstrations and operational support."

"This will include," the proposal averred, "efforts to analyze and engineer operational, functional and system requirements in order to establish national, theater and force level architecture and engineering plans, interface and systems specifications and definitions, implementation, including hardware acquisition for turnkey systems."

Under terms of the contract, the company will "perform analyses of existing and emerging Operational and Functional Requirements at the force, theater, Combatant Commands (COCOM) and national levels to support the formulation, development and assessment of doctrine, strategy, plans, concepts of operations, and tactics, techniques and procedures in order to provide the full spectrum of Cyber Warfare and enabling capabilities to the warfighter."

In fact, during an early roll-out of the Pentagon's cyber panic product line five years ago, Dr. Lani Kass, a former Israeli Air Force major and acolyte of neocon war criminals Dick Cheney and Donald Rumsfeld, and who directs the Air Force Cyber Space Task Force under Bush and Obama, submitted a provocative proposal.

During a 2006 presentation titled, A Warfighting Domain: Cyberspace, Kass asserted that "the electromagnetic spectrum is the maneuver space. Cyber is the United States' Center of Gravity--the hub of all power and movement, upon which everything else depends. It is the Nation's neural network." Kass averred that "Cyber superiority is the prerequisite to effective operations across all strategic and operational domains--securing freedom from attack and freedom to attack."

Accordingly, she informed her Air Force audience that "Cyber favors the offensive," and that the transformation of a militarized internet into a "warfighting domain" will be accomplished by "Strategic Attack directly at enemy centers of gravity; Suppression of Enemy Cyber Defenses; Offensive Counter Cyber; Defensive Counter Cyber; Interdiction."

In the years since that presentation such plans are well underway.

In another leaked file, Public Intelligence disclosed that HBGary, again in partnership with General Dynamics, are developing "a software tool, which provides the user a command line interface, that will enable single file, or full directory exfiltration over TCP/IP."

Called "Task Z," General Dynamics "requested multiple protocols to be scoped as viable options, and this quote contains options for VoIP (Skype) protocol, BitTorrent protocol, video over HTTP (port 80), and HTTPS (port 443)."

As I reported last year, the Obama administration will soon be seeking legislation that would force telecommunications companies to redesign their system and information networks to more readily facilitate internet spying.

And, as the administration builds upon and quietly expands previous government programs that monitor the private communications of the American people, The New York Times revealed that our "change" regime will demand that software and communication providers build backdoors accessible to law enforcement and intelligence agencies.

Such "backdoors" will enable spooks trolling "encrypted e-mail transmitters like BlackBerry, social networking Web sites like Facebook and software that allows direct 'peer to peer' messaging like Skype" the means "to intercept and unscramble encrypted messages."

These are precisely the technological "fixes" which firms like HBGary, General Dynamics and presumably other defense contractors are actively building for their secret state security partners.

The Fire This Time

While denouncing China, Russia and other capitalist rivals over cyber espionage and alleged hacking escapades, the deployment of digital weapons of mass destruction against selected adversaries, Iran for one, is an essential feature of Pentagon targeting profiles and has now been fully integrated into overall U.S. strategic military doctrine.

This is hardly the stuff of wild speculation considering that evidence suggests that last year's attack on Iran's civilian nuclear program via the highly-destructive Stuxnet worm was in all probability a joint U.S.-Israeli operation as The New York Times disclosed.

Nor should we forget, that U.S. Cyber Command (USCYBERCOM), the Pentagon satrapy directed by NSA Director, Gen. Keith Alexander, is "a sub-unified command subordinate to U. S. Strategic Command," the lead agency charged with running space operations, information warfare, missile defense, global command, control, intelligence, surveillance and reconnaissance (C4ISR), global strike and strategic deterrence; the trigger finger on America's first-strike nuclear arsenal.

Will the next crisis trigger an onslaught against an adversary's civilian infrastructure? The Washington Post informs us that an unnamed U.S. official acknowledged that "'the United States is actively developing and implementing' cyber-capabilities 'to deter or deny a potential adversary the ability to use its computer systems' to attack the United States."

However, while the "collateral effects" of such an attack are claimed to be "unpredictable," one can be sure that civilian populations on the receiving end of a Pentagon cyber attack will suffer mass casualties as water and electrical systems go offline, disease and panic spreads and social infrastructures collapse.

Welcome to America's brave new world of high-tech war crimes coming soon to a theater near you (3D glasses optional).

Sunday, June 5, 2011

They Call This Justice. Supreme Court Gives CIA Torturers, Boeing a Free Pass

On May 16, in another shameless capitulation to the Executive Branch, the U.S. Supreme Court declined to review a lawsuit brought by victims of CIA torture, handing Jeppesen DataPlan, a subsidiary of defense giant Boeing, a free pass for services "rendered" as the Agency's booking agent.

In 2007, the American Civil Liberties filed a landmark lawsuit, Mohamed et. al. vs. Jeppesen DataPlan, Inc., on behalf of five victims of the Bush administration's so-called "extraordinary rendition" kidnap and torture program.

The five men, Binyam Mohamed, Ahmed Agiza, Abou Elkassim Britel, Mohamed Farag Ahmad Bashmilah and Bisher al-Rawi, claimed with copious evidence to back their assertions, that their "rendition" and torture was facilitated by the Boeing subsidiary.

Not a single plaintiff was ever charged with a so-called "terrorism" offense let alone convicted of a crime in open court. That didn't stop America's shadow warriors from kidnapping, drugging and then whisking them away--aboard aircraft provided by Jeppesen--to CIA "black sites" or the dungeons of close U.S. allies in Europe and the Middle East.

In 2006, the firm's filthy role in CIA torture programs was exposed by investigative journalist Jane Mayer in The New Yorker.

Indeed, one Bob Overby, Jeppesen's managing director, said during a breakfast for new hires in San Jose, Calif., "We do all of the extraordinary rendition flights--you know, the torture flights. Let's face it, some of these flights end up that way."

Technical writer Sean Belcher blew the whistle on the firm and told Mayer that Overby, extolling the virtues of the corporatist bottom line, said: "It certainly pays well. They"--the CIA--"spare no expense. They have absolutely no worry about cost. What they have to get done, they get done."

Another recipient of the CIA tender mercies was Khaled el-Masri, a German citizen, who was kidnapped while on vacation in 2004 by the Agency after attempting to cross the border between Serbia and Macedonia.

According to The New Yorker, Masri charged in court papers that "Macedonian authorities turned him over to a C.I.A. rendition team. Then, he said, masked figures stripped him naked, shackled him, and led him onto a Boeing 737 business jet."

"Flight plans, Mayer reported, "prepared by Jeppesen show that from Skopje, Macedonia, the 737 flew to Baghdad, where it had military clearance to land, and then on to Kabul. On board, Masri has said, he was chained to the floor and injected with sedatives. After landing, he was put in the trunk of a car and driven to a building where he was placed in a dank cell. He spent the next four months there, under interrogation."

The CIA claimed it was all a case of "mistaken identity" when he was finally released, and dumped penniless, along the side of a road in the former Yugoslavia.

Mayer disclosed that after delivering their human cargo up to torture, "the American flight crew fared better than their passenger. Documents show that after the 737 delivered Masri to the Afghan prison it flew to the resort island of Majorca, where, for two nights, crew members stayed at a luxury hotel, at taxpayers' expense."

As a corporate entity directly profiting from the CIA's torture programs by planning and facilitating Agency ghost flights, Jeppesen bears equal responsibility for serious breeches of U.S. and international law. As a co-conspirator with the CIA, Jeppesen was complicitous in the Agency's illegal kidnapping and disappearance of "terrorism" suspects into CIA black sites across Europe, Asia and the Middle East.

While American "justice" is now a euphemism for impunity for the ruling rich and a maximum security prison cell for the poor, others are far less squeamish when it comes to pointing the finger, and naming names.

As the Council of Europe reported back in 2007, "The Legal Affairs and Human Rights Committee now considers it factually established that secret detention centres operated by the CIA have existed for some years in Poland and Romania, though not ruling out the possibility that secret CIA detentions may also have occurred in other Council of Europe member states."

The Council "earnestly deplores the fact that the concepts of state secrecy or national security are invoked by many governments (United States, Poland, Romania, 'the former Yugoslav Republic of Macedonia', Italy and Germany, as well as the Russian Federation in the Northern Caucasus) to obstruct judicial and/or parliamentary proceedings aimed at ascertaining the responsibilities of the executive in relation to grave allegations of human rights violations."

"The Committee also stresses," human rights rapporteur Dick Marty wrote, "the need to rehabilitate and compensate victims of such violations. Information as well as evidence concerning the civil, criminal or political liability of the state's representatives for serious violations of human rights must not be considered as worthy of protection as state secrets."

Not that any of this mattered to the U.S. government. Shortly after the ACLU's suit was filed, Bush's Justice Department intervened, claiming that the case could not go forward and asserted the "state secrets privilege," arguing that evidence presented by the plaintiffs in court detailing their horrific treatment would undermine U.S. "national security."

Never mind that these programs were hardly secret and had been disclosed by multiple investigations by journalists and human rights organizations. Shortly after taking office in 2009, this position was defended by Barack Obama's discredited "change" regime, claiming that the entire case was a "state secret."

During arguments before the Ninth Circuit in early 2009, the San Francisco Chronicle reported that Justice Department attorney Douglas Letter told the court in a thinly-veiled warning that "judges shouldn't play with fire."

However, ACLU attorney Ben Wizner said during oral arguments "that the supposedly ultra-secret rendition program is widely known." Wizner noted "that Sweden recently awarded $450,000 in damages to one of the plaintiffs, Ahmed Agiza, for helping the CIA transport him to Egypt, where he is still being held and allegedly has been tortured."

"The notion that you have to close your eyes and ears to what the whole world knows is absurd," Wizner told the court.

Winding its way through the U.S. Ninth Circuit Court of Appeals, a three-judge panel overturned the District Court's dismissal of the suit, ruling that the government cannot dismiss the case and that the "state secrets privilege" can only be invoked after specific evidence is presented. The three-judge panel went further however, and stated forcefully in their opinion:

At base, the government argues ... that state secrets form the subject matter of a lawsuit, and therefore require dismissal, any time a complaint contains allegations, the truth or falsity of which has been classified as secret by a government official. The district court agreed, dismissing the case exclusively because it "involves allegations about [secret] conduct by the CIA." This sweeping characterization of the "very subject matter" bar has no logical limit--it would apply equally to suits by US citizens, not just foreign nationals; and to secret conduct committed on US soil, not just abroad. According to the government's theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.

But there's the rub: the secret state had no intention of ever presenting evidence that the plaintiffs' treatment was "legal," and in fact, sought to cover their tracks and those of their defense industry partners in the hope of completely erasing this case, and others, including those involving the government's illegal warrantless wiretapping programs which most certainly "cordon off all secret government actions from judicial scrutiny," effectively expunging evidence of government crime from the public record.

Undaunted, the Obama administration appealed the decision before a full panel of 11 judges, and in September 2010, that panel reversed the Ninth Circuit's earlier ruling by a 6-5 vote.

Last December, the ACLU petitioned the Supreme Court to review the lower court's decision dismissing the lawsuit, but the Court declined.

"With today's decision, Ben Wizner, the litigation director of the ACLU's National Security Project, said in a press release, that "the Supreme Court has refused once again to give justice to torture victims and to restore our nation's reputation as a guardian of human rights and the rule of law."

Decrying the court's refusal to review the case against Jeppesen, Wizner said that "to date, every victim of the Bush administration's torture regime has been denied his day in court. But while the torture architects and their enablers have escaped the judgment of the courts, they will not escape the judgment of history."

Last month's dismissal of the ACLU's petition is all the more ironic considering that the Court, in an 8-1 ruling, permits police to conduct searches of private homes without benefit of obtaining a warrant if they believe an "exigent [emergency] circumstance" prevails.

In other words, we're to meekly submit to the further erosion of Fourth Amendment protections and can no longer seek relief from the courts simply because police, whom we know never lie or frame criminal defendants, have reason to "suspect" that illegal behavior is taking place behind closed doors!

But as the World Socialist Web Site points out, "a host of recent decisions, all of which in one way or another purport to show 'deference' to the executive, whether for reasons of 'national security,' 'state secrets,' or the 'exigencies' of police work, the Supreme Court is abandoning any effort to restrain the exercise of executive power."

Socialist critic Tom Carter writes, "These decisions, taken together, effectively relegate a US judge to the same role as a judge in a police state, who functions merely as an after-the-fact rubber stamp for executive decisions," and "should be taken as a warning of things to come."

While the three Ninth Circuit judges who slapped down the Obama administration's spurious claim of "state secrets" in the Mohamed vs. Jeppesen case believe that "the Founders of this Nation knew well ... arbitrary imprisonment and torture under any circumstance is a gross and notorious act of despotism," it should be abundantly clear by now that America's ruling class has no interest in defending basic democratic rights as the drift towards a police state under Bush and Obama has become a repressive tsunami.

(Image courtesy of Alex Constantine's Anti-Fascist Encyclopedia)