TSA’s New Security Directive for Enhanced Screening

Here’s a new announcement from TSA:

Today, the Transportation Security Administration issued new security directives to all United States and international air carriers with inbound flights to the U.S. effective January 4, 2010.
The new directive includes long-term, sustainable security measures developed in consultation with law enforcement officials and our domestic and international partners. Because effective aviation security must begin beyond our borders, and as a result of extraordinary cooperation from our global aviation partners, TSA is mandating that every individual flying into the U.S. from anywhere in the world traveling from or through nations that are state sponsors of terrorism or other countries of interest will be required to go through enhanced screening. The directive also increases the use of enhanced screening technologies and mandates threat-based and random screening for passengers on U.S. bound international flights.
WaPo reports that TSA officials declined to name all the “countries of interest” on Sunday, but confirmed that the directive applies to the State Department’s list of state sponsors of terrorism. The department’s Web site lists Cuba, Iran, Sudan and Syria as state sponsors of terrorism. The report also says that “a senior administration official identified the following as terrorism-prone nations or countries of interest to U.S. intelligence agencies: Afghanistan, Algeria, Iraq, Lebanon, Libya, Nigeria, Pakistan, Saudi Arabia, Somalia and Yemen.”
The NYT on its coverage (U.S. Intensifies Air Screening for Fliers From 14 Nations) points out that these new changes will mean that “any citizen of Pakistan or Saudi Arabia will for the first time be patted down automatically before boarding any flight to the United States. Even if that person has lived in a country like Britain for decades, he now will be subject to these extra security checks.”
Nigeria has already criticized its inclusion under the new air passenger screening saying “It is unfair to discriminate against 150 million people because of the behaviour of one person.”

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What drove prosecutorial zeal in the Nisour Square Case?

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United States District Judge Ricardo Urbina in dismissing the indictment of Paul Slough, Evan Liberty, Dustin Heard, Donald Ball and Nicholas Slatten [USA v. Paul A. Slough et al. | Criminal Action No.: 08-0360 (RMU)] (security guards employed by Blackwater Worldwide/Xe to provide security services to U.S. government employees operating in Iraq) — on the Nisour Square Baghdad incident writes:

“Before the beginning of jury deliberations, a judge instructs the jury that it must perform its duty to deliberate “without prejudice, fear, sympathy or favoritism.” A judge has a concomitant obligation. When a judge, upon close examination of the procedures that bring a criminal matter before the court, concludes that the process aimed at bringing the accused to trial has compromised the constitutional rights of the accused, it behooves the court to grant relief in the fashion prescribed by law. Such is the case here.”
Perhaps cognizant of the possible impact of this ruling beyond our borders, the judge prefaced his memorandum opinion with this:  
[T]he basic purposes that lie behind the privilege against self-incrimination do not relate to protecting the innocent from conviction, but rather to preserving the integrity of a judicial system in which even the guilty are not to be convicted unless the prosecution  shoulder the entire load.
In its decision the Court did not minced words: “[T]he government has utterly failed to prove that it made no impermissible use of the defendants’ statements or that such use was harmless beyond a reasonable doubt.  Accordingly, the court must dismiss the indictment against all of the defendants.”
The Court also faulted the prosecutors’ excessive fervor and disregard of warning that lead to the collapse of the prosecution’s case:

“In their zeal to bring charges against the defendants in this case, the prosecutors and investigators aggressively sought out statements the defendants had been compelled to make to government investigators in the immediate aftermath of the shooting and in the subsequent investigation. In so doing, the government’s trial team repeatedly disregarded the warnings of experienced, senior prosecutors, assigned to the case specifically to advise the trial team on Garrity and Kastigar issues, that this course of action threatened the viability of the prosecution. The government used the defendants’ compelled statements to guide its charging decisions, to formulate its theory of the case, to develop investigatory leads and, ultimately, to obtain the indictment in this case. The government’s key witnesses immersed themselves in the defendants’ compelled statements, and the evidence adduced at the Kastigar hearing plainly demonstrated that these compelled statements shaped portions of the witnesses’ testimony to the indicting grand jury. The explanations offered by the prosecutors and investigators in an attempt to justify their actions and persuade the court that they did not use the defendants’ compelled testimony were all too often contradictory, unbelievable and lacking in credibility.”
The question then becomes –what drove prosecutorial zeal in this case? The Nisour Square Baghdad incident occurred on September 16, 2007.  On December 2008, the Justice Department announced they were charging five of the Blackwater employees, and ordered them to surrender themselves to the FBI.
Here are a few quotes from that 2008 DOJ announcement:
Patrick Rowan, Assistant Attorney General for National Security: “Today’s indictment and guilty plea demonstrate that those who engage in unprovoked and illegal attacks on civilians, whether during times of conflict or times of peace, will be held accountable.” J. Patrick Rowan is currently a partner at McGuireWoods LLP.
Jeff Taylor, U.S. Attorney for the District of Columbia: “We honor the brave service of the many U.S. contractors who are employed to support the mission of our Armed Forces in extremely difficult circumstances.  Today, we honor that service by holding accountable the very few individuals who abused that employment by committing some very serious crimes against dozens of innocent civilians.” (Taylor had resigned from public office on May 29, 2009).
Joseph Persichini, Jr., Assistant Director in Charge, FBI Washington Field Office: “Today’s indictments illustrate the FBI’s expanded responsibilities and its dedication to respond to any crime scene; be it in the United States or on foreign soil. The FBI will continue to work with its law enforcement partners in this country and abroad to ensure that the nation’s federal laws are enforced.” (Persichini retired on December 25, 2009 according to this WaPo report).  
According to the indictment, the defendants were all employed by the Armed Forces outside the United States — that is, the defendants were employed as independent contractors and employees of Blackwater Worldwide, a contractor of the Department of State, to provide personal security services related to supporting the mission of the Department of Defense in the Republic of Iraq, within the meaning of MEJA.

Admittedly, I’m not a lawyer, but I still think that was a convoluted interpretation of the MEJA. Can you read the above paragraph and actually make sense of that without drooling in confusion? Because they were contractors for DOS, they were supporting the mission of DOD?! Agh! My head hurts!  

The 2008 DOJ statement also identified who handled the prosecution of this case: Assistant U.S. Attorneys Kenneth C. Kohl and Jonathan M. Malis from the U.S. Attorney’s Office for the District of Columbia, as well as Barry Jonas, Trial Attorney from the Justice Department’s National Security Division.

What else happened between the incident and the filing of complaint by DOJ in 2008? Why did the government’s trial team “repeatedly disregarded the warnings of experienced senior prosecutors” on the Garrity and Kastigar issues?

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Pete Hoektra’s Exquisite Art of the Non-Answer

This Week had Terry Moran with Deputy National Security Adviser John Brennan and a congressional panel with Representative Jane Harman, Sens. Susan Collins, Joe Lieberman and Representative Pete Hoekstra who is currently running for Governor in Michigan. You have to give it to Terry, for trying. Excerpted from the transcript.  

MORAN: One more note on politics, Congressman Hoekstra. Once upon a time, there was a tradition of solidarity in refraining from criticizing the president at the time the nation was under attack. Three days after this attempt to kill 300 people over the skies of Detroit, you sent out a fundraising letter, and I’d — I’d like to read a portion of it so our audience gets the full flavor of it.
You said, “I have pledged that I will do everything possible to prevent these terrorists from coming to Michigan, but I need your help. If you agree that we need a governor who will stand up to the Obama-Pelosi efforts to weaken our security, please make a most generous contribution of $25, $50 or $100, or even $250, to my campaign.” Given that tradition, that once was part of this country, are you proud of that, of fundraising off of a national crisis like that?
HOEKSTRA: Well, I’ve been leading on national security for the last nine years that I’ve been on the Intelligence Committee. You know, over the last two to three months, I’ve been very concerned about where there administration has taken us on national security issues.
The refusal to acknowledge that the Fort Hood attack was a terrorist attack…
MORAN: But I’m asking about raising money off the attempted murder of 300 people three days after it occurred.
HOEKSTRA: I — I am proud of the role that I have played in making sure that America is safe.
MORAN: And raising money off it?
HOEKSTRA: I’ve been right on the facts all along on this — on the recent attacks, the connections with Yemen. The — the differences between this administration and myself have been purely substantive. They have been policy. I’ve been trying to drive this administration in a policy direction that keeps America safe.
I think if you listen to the language that we have heard over this — this morning, with the guests that you’ve had on the program, we are now at a point where we have come back. We’ve got — we’ve got some political disagreements or policy — excuse me — we’ve got some policy agreements, but we also have a recognition that this threat is real, it is imminent, and that we need to come together in a bipartisan basis to fix it.
MORAN: All right.
Ah, shame on you, Terry Moran! How dare you question that somebody who has been leading on national security for years?  Just because he’s running for governorship in a state with over 15% unemployment, raising funds off the attempted murder of 300 people three days after it occurred doesn’t mean he is an opportunistic loaf of bread … or does it? We need more people like him who can scare us out of our wits; because if not him, who will? If not now, when?

No better time than now to say boo!

Watch out! This is going to get louder, folks…

This Week had Terry Moran with Deputy National Security Adviser John Brennan and a congressional panel with Representatives Pete Hoekstra and Jane Harman, Sens. Susan Collins, and Joe Lieberman. Excerpted from the transcript.  

COLLINS: The problem with profiling is, if you take that approach, you’re going to miss the Richard Reids, who do not fit the profile. But what we have in this case was a failure to act on a very credible report from the terrorist’s father that should, at the very least, have caused the State Department to revoke his visa.
To me, that is the biggest question. Why wasn’t this individual’s visa revoked once we had such a credible report that he posed a threat? That, to me, is an even bigger failure than the failure to screen him effectively.
LIEBERMAN: We know from past experience that some of them will be back in the fight against us. The leader of Al Qaida in the Arabian Peninsula broke out of a jail there until we killed him, apparently, in the raid Christmas week.
So we’ve — we’ve got a lot to investigate. But I think we’ve learned a lot already about how to close some of the holes. I believe, incidentally, that we ought to take a look at taking that visa application and admission responsibility from the State Department. It doesn’t really fit with foreign policy anymore. And in an age of terrorism, I think the Department of Homeland Security ought to be handling visas abroad.
I also think that we ought to be very much tougher about terrorism watch list. If somebody — somebody’s father comes in and — and says he may be an extremist, he ought to go on a list that is — is alerted any time he approaches, as Abdulmutallab did…

Visa Officers as Future Perfect Scapegoats

“U.S. consular officers are instructed to issue full-validity visas as often as possible. In an act of reciprocity, we issue visas of the same duration as those issued to Americans by the host government. The challenge in training new consular officers, however, is that because of this popular misunderstanding of what a visa actually is, many fear “being on the hook” for the next ten years (a common visa validity). Sure, the applicant looks qualified now. But what if he becomes a jihadi in seven years? He’s still got the visa, and Uncle Sam and the general public may look for a scapegoat if he tries anything stupid. And that scapegoat may very well be me.”

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