The head of online security company McAfee told another Davos debate Friday that China, the United States, Russia, Israel and France are among 20 countries locked in a cyberspace arms race and gearing up for possible Internet hostilities.

Mundie and other experts have said there is a growing need to police the internet to clampdown on fraud, espionage and the spread of viruses.

"People don't understand the scale of criminal activity on the internet. Whether criminal, individual or nation states, the community is growing more sophisticated," the Microsoft executive said.

"We need a kind of World Health Organization for the Internet," he said.

"When there is a pandemic, it organizes the quarantine of cases. We are not allowed to organize the systematic quarantine of machines that are compromised."

He also called for a "driver's license" for internet users.

"If you want to drive a car you have to have a license to say that you are capable of driving a car, the car has to pass a test to say it is fit to drive and you have to have insurance."

Andre Kudelski, chairman of Kudelski Group, said that a new internet might have to be created forcing people to have two computers that cannot connect and pass on viruses. "One internet for secure operations and one internet for freedom."

The revelation last week that the FBI nearly routinely broke the Electronic Communications Privacy Law between 2002 and 2006, wiretapping phones on the basis of "emergencies" that didn't exist, sparked a justified, but all too brief flurry of media attention.

By and large, however, the mechanism by which the FBI flouted the law, the issuance of "exigent letters" (aka "post-it note" warrants) has seldom gotten sufficient legal or political scrutiny.

In an important post on the American Constitutional Society blog Gregory Nojeim, Senior Counsel and Director of the Project on Freedom, Security & Technology at the Center for Democracy & Technology, provides useful context on these self-serving creations of the FBI, and how Congress has failed to stop them. 

ACS blog writes

A national security letter is a simple form document issued by the FBI and other agencies of the government to obtain telephone call records, email to/from information, and other records about communications, as well as financial, credit, and other records, without any prior judicial authorization. NSLs are served on the business entities that hold the records and the businesses that receive NSLs must comply or challenge them in court, and with limited exceptions, are barred from disclosing to anyone that they have received or complied with the demand for records.The Patriot Act removed most of the legal restraints on issuing NSLs, including the requirement that the NSL seek information that pertains to a spy, a terrorist or another agent of a foreign power, and the requirement that agents articulate a factual basis for seeking records with an NSL. But it left in place the very minimal requirement that the NSL be issued only to seek information relevant to an investigation to protect against international terrorism or clandestine intelligence activities. Rather than comply with this minimal requirement, FBI officials issued "exigent letters" to obtain information that should have been sought with NSLs even when no investigation had been opened, and in some cases, even though the information was not sought in an emergency situation. "Exigent letters" were a creation of the FBI and have no basis in law.

"The requirement of "due process" is not a fair-weather or timid assurance," Felix Frankfurter once wrote. "It must be respected in times of calm and in times of trouble; it protects aliens as well as citizens."

Frankfurter's notion that to truly be the law of the land the constitution must apply across the board until recently has been widely accepted as historical common sense.

No longer. At least not in the Beltway.

Last week, in response to hearing that suspected "Christmas bomb" plotter Umar Abdulmuttallab had been charged in criminal court without prior consultation with US intelligence officials, a "gang of four" senators including Joe Lieberman (ID-CT) and Susan Collins ((R-Me.) introduced legislation to effectively make the constitutional guarantee of due process "fair-weather only". Their bill would require the Attorney General to to consult with the Director of National Intelligence, the Director of the National Counterterrorism Center, the Secretary of Homeland Security, and the Secretary of Defense, before initiating a custodial interrogation of foreign terrorists or filing civilian criminal charges against them.

When dealing with suspected terrorists Sen. Ensign said, "The fact that Umar Farouk Abdulmuttalab was read his Miranda rights and was placed under civilian court jurisdiction is as perplexing as it is dangerous."

Echoing the Gang of Four The Washington Post argued that "Whether to charge terrorism suspects or hold them is a judgement call."

On Sunday the ACLU took aim at the proposal to make due process a provisional call, akin to whether to wear a blazer or skirt on casual Friday.

The ACLU writes

"It is extremely disturbing that members of the U.S. Congress are essentially calling for Obama administration officials to discard the Constitution when a terrorist suspect is apprehended - as if the Constitution should be applied on a case by case basis. The whole idea of having constitutional protections is that they be applied across the board for all those accused of a crime. That is the only way for us to rely on our justice system and its results. Obeying the Constitution is not optional.

"The FBI was right to place Umar Farouk Abdulmutallab in the criminal justice system. Terrorism is a crime, and to treat terrorism that takes place far from any battlefield as an act of war is to propose that the entire world is a battlefield, to give criminals the elevated status of warriors and to invest whoever the current president may be with the authority to imprison a broad category of people potentially forever, without ever being afforded an opportunity to defend themselves. To abandon due process in terrorism cases turns the rule of law on its head and flies in the face of the values that we are fighting to protect in the first place. Our criminal justice system is fully capable of accommodating the government's legitimate security interests while at the same time providing fundamental rights to defendants.

"If we have learned nothing else over the last decade, we've learned that disregarding the rule of law leads to tragic consequences. This country is still trying to deal with the repercussions of the previous administration's illegal torture and detention policies, which did immeasurable damage to America's standing in the world.

Police, in a criminal complaint on the incident, say "closed fist strikes" were used by the undercover police officers, but only to subdue the teenager as he tried to get away.

His mother said she plans to file a civil rights claim against the officers.

Terez Miles said her son, Jordan Miles, who is black, thought his life was in jeopardy when three white men jumped out of a car on the night of January 11 as he walked not far from his home.

"My son tried to run thinking his life was in jeopardy," Terez Miles said. "He made three steps before he slipped and fell." After that, she said, the police used a stun gun and beat him, pulling out a chunk of his hair.

The officers "delivered 2-3 closed fist strikes to Miles' head/face with still no effect," and then a "knee strike to Miles' head causing him to momentarily stop resisting," so that he could be handcuffed, the document says.

Miles' mother said the officers did not identify themselves as police to her son, a viola player and student at the city's Creative and Performing Arts High School.

Thanks to Jonathan Turley

A drug bust of two Bronx men wasn't all it was cracked up to be - and now they're looking for a sweet payday from the city.

Cops accused Cesar Rodriguez and Jose Pena of having crack cocaine in their work van, but it was only coconut candy, they said Friday.

Charges were dropped after tests showed they were telling the truth, but the two men plan to file a $2 million suit against the NYPD.

"I spent five days in jail for possession of coconut candy," said Rodriguez, 33, an ex-con who works as a plumber's assistant.

He and Pena were parked near an Arthur Ave. bodega Jan. 15 when two police officers asked to search their green Chevy Venture van, the men said.

The cops found pieces of the crystalline candy - known as crema de coco and sold in bodegas across the city - in a plastic baggie.

Officer Anthony Burgos of the 48th Precinct arrested the duo for drug possession despite their insistence they were guilty only of a sweet tooth, Rodriguez said.

"I kept telling him it is candy," he said.

Rodriguez and Pena were locked up on a Friday night and didn't see a judge for arraignment until that Sunday, said their lawyer, Neil Wollerstein.

Pena was released after arraignment, but Rodriguez couldn't make the $5,000 bail a judge imposed because of a prior armed robbery conviction. He wasn't let go until this Thursday, the lawyer said.

The Electronic Frontier Foundation, a privacy watchdog that participated in the lawsuit, described the judge's ruling as declaring "that mass surveillance of Americans is immune from judicial review."

Nine plaintiffs -- five customers of telecom companies from California and four others from Brooklyn -- had sued the NSA arguing that their rights had been infringed by the wiretapping program, which potentially could have spied on anyone in the United States.

"This ruling robs innocent telecom customers of their privacy rights without due process of law," EFF legal director Cindy Cohn said in a statement. "Setting limits on executive power is one of the most important elements of America's system of government, and judicial oversight is a critical part of that."

When President Barack Obama took office last year, he promised to "restore the standards of due process and the core constitutional values that have made this country great." Toward that end, the president issued an executive order declaring that the extra-constitutional prison camp at Guantánamo Naval Base "shall be closed as soon as practicable, and no later than one year from the date of this order." Obama has failed to fulfill his promise. Some prisoners there are being charged with crimes, others released, but the date for closing the camp seems to recede steadily into the future. Furthermore, new evidence now emerging may entangle Obama's young administration with crimes that occurred during the George W. Bush presidency, evidence that suggests the current administration failed to investigate seriously--and may even have continued--a cover-up of the possible homicides of three prisoners at Guantánamo in 2006.

Late in the evening on June 9 that year, three prisoners at Guantánamo died suddenly and violently. Salah Ahmed Al-Salami, from Yemen, was thirty-seven. Mani Shaman Al-Utaybi, from Saudi Arabia, was thirty. Yasser Talal Al-Zahrani, also from Saudi Arabia, was twenty-two, and had been imprisoned at Guantánamo since he was captured at the age of seventeen. None of the men had been charged with a crime, though all three had been engaged in hunger strikes to protest the conditions of their imprisonment. They were being held in a cell block, known as Alpha Block, reserved for particularly troublesome or high-value prisoners.

As news of the deaths emerged the following day, the camp quickly went into lockdown. The authorities ordered nearly all the reporters at Guantánamo to leave and those en route to turn back. The commander at Guantánamo, Rear Admiral Harry Harris, then declared the deaths "suicides." In an unusual move, he also used the announcement to attack the dead men. "I believe this was not an act of desperation," he said, "but an act of asymmetrical warfare waged against us." Reporters accepted the official account, and even lawyers for the prisoners appeared to believe that they had killed themselves. Only the prisoners' families in Saudi Arabia and Yemen rejected the notion.

Two years later, the U.S. Naval Criminal Investigative Service, which has primary investigative jurisdiction within the naval base, issued a report supporting the account originally advanced by Harris, now a vice-admiral in command of the Sixth Fleet. The Pentagon declined to make the NCIS report public, and only when pressed with Freedom of Information Act demands did it disclose parts of the report, some 1,700 pages of documents so heavily redacted as to be nearly incomprehensible. The NCIS report was carefully cross-referenced and deciphered by students and faculty at the law school of Seton Hall University in New Jersey, and their findings, released in November 2009, made clear why the Pentagon had been unwilling to make its conclusions public. The official story of the prisoners' deaths was full of unacknowledged contradictions, and the centerpiece of the report--a reconstruction of the events--was simply unbelievable.

According to the NCIS, each prisoner had fashioned a noose from torn sheets and T-shirts and tied it to the top of his cell's eight-foot-high steel-mesh wall. Each prisoner was able somehow to bind his own hands, and, in at least one case, his own feet, then stuff more rags deep down into his own throat. We are then asked to believe that each prisoner, even as he was choking on those rags, climbed up on his washbasin, slipped his head through the noose, tightened it, and leapt from the washbasin to hang until he asphyxiated. The NCIS report also proposes that the three prisoners, who were held in non-adjoining cells, carried out each of these actions almost simultaneously.

Al-Zahrani, according to the report, was discovered first, at 12:39 a.m., and taken by several Alpha Block guards to the camp's detention medical clinic. No doctors could be found there, nor the phone number for one, so a clinic staffer dialed 911. During this time, other guards discovered Al-Utaybi. Still others discovered Al-Salami a few minutes later. Although rigor mortis had already set in--indicating that the men had been dead for at least two hours--the NCIS report claims that an unnamed medical officer attempted to resuscitate one of the men, and, in attempting to pry open his jaw, broke his teeth.

The fact that at least two of the prisoners also had cloth masks affixed to their faces, presumably to prevent the expulsion of the rags from their mouths, went unremarked by the NCIS, as did the fact that standard operating procedure at Camp Delta required the Navy guards on duty after midnight to "conduct a visual search" of each cell and detainee every ten minutes. The report claimed that the prisoners had hung sheets or blankets to hide their activities and shaped more sheets and pillows to look like bodies sleeping in their beds, but it did not explain where they were able to acquire so much fabric beyond their tightly controlled allotment, or why the Navy guards would allow such an obvious and immediately observable deviation from permitted behavior. Nor did the report explain how the dead men managed to hang undetected for more than two hours or why the Navy guards on duty, having for whatever reason so grievously failed in their duties, were never disciplined.

The FBI illegally collected more than 2,000 U.S. telephone call records between 2002 and 2006 by invoking terrorism emergencies that did not exist or simply persuading phone companies to provide records, according to internal bureau memos and interviews. FBI officials issued approvals after the fact to justify their actions.

E-mails obtained by The Washington Post detail how counterterrorism officials inside FBI headquarters did not follow their own procedures that were put in place to protect civil liberties. The stream of urgent requests for phone records also overwhelmed the FBI communications analysis unit with work that ultimately was not connected to imminent threats.

A Justice Department inspector general's report due out this month is expected to conclude that the FBI frequently violated the law with its emergency requests, bureau officials confirmed.

The records seen by The Post do not reveal the identities of the people whose phone call records were gathered, but FBI officials said they thought that nearly all of the requests involved terrorism investigations.

FBI general counsel Valerie Caproni said in an interview Monday that the FBI technically violated the Electronic Communications Privacy Act when agents invoked nonexistent emergencies to collect records.

"We should have stopped those requests from being made that way," she said. The after-the-fact approvals were a "good-hearted but not well-thought-out" solution to put phone carriers at ease, she said. In true emergencies, Caproni said, agents always had the legal right to get phone records, and lawyers have now concluded there was no need for the after-the-fact approval process. "What this turned out to be was a self-inflicted wound," she said.

Caproni said FBI Director Robert S. Mueller III did not know about the problems until late 2006 or early 2007, after the inspector general's probe began.

Documents show that senior FBI managers up to the assistant director level approved the procedures for emergency requests of phone records and that headquarters officials often made the requests, which persisted for two years after bureau lawyers raised concerns and an FBI official began pressing for changes.

"We have to make sure we are not taking advantage of this system, and that we are following the letter of the law without jeopardizing national security," FBI lawyer Patrice Kopistansky wrote in one of a series of early 2005 e-mails asking superiors to address the problem.

The FBI acknowledged in 2007 that one unit in the agency had improperly gathered some phone records, and a Justice Department audit at the time cited 22 inappropriate requests to phone companies for searches and hundreds of questionable requests. But the latest revelations show that the improper requests were much more numerous under the procedures approved by the top level of the FBI.

FBI officials told The Post that their own review has found that about half of the 4,400 toll records collected in emergency situations or with after-the-fact approvals were done in technical violation of the law. The searches involved only records of calls and not the content of the calls. In some cases, agents broadened their searches to gather numbers two and three degrees of separation from the original request, documents show.

It's a question that rarely gets asked: from where does the Obama administration locate the legal authority to launch missiles from the CIA's unmanned drones into Pakistani (and, this week, Afghan) territory? The ACLU wants to know.

The civil liberties group today filed a Freedom of Information Act request with the CIA and the Departments of State, Justice and Defense for documentation establishing the legal basis for the drone strikes. Drone strikes in Pakistan have risen substantially during the first year of the Obama administration.

Additionally, the civil liberties group wants to see the government's estimates for how many civilians the drone program is responsible for killing. A recent New America Foundation report arguing that most drone critics overstate overstate civilian casualties still found that one in every three Pakistanis killed by the drones is a civilian, not a combatant.

In the ironically named Liberty County Jail since December 11 sits Army Specialist and Iraq War veteran Marc Hall, a rap musician who had the audacity to write a song attacking the Pentagon for subjecting him to a so-called stop-loss order after he had finished his Army tour and had returned from a posting in Iraq.

Hall, whose hip-hop alias is Marc Watercus, wrote the song and sent it to the Pentagon as a protest. His commander at Ft. Stewart initially had him arrested after he went to his base commander to protest his stop-loss order. He had planned to leave the service when his contract was up on Feb. 27. The Pentagon then upped the charges, claiming that in sending his song to the Pentagon, he had "communicated a threat" to he military. In the song lyrics, Hall says he will shoot officers if he is stop-lossed.

The Pentagon reports that since 2001 it has prevented 120,000 soldiers from leaving the service using the stop-loss policy, which critics say is being grossly mis-used. Originally intended to keep the military from having to withdraw active troops from the battlefield if their contracts expire while they are engaged in the field, the policy has become instead a way of compensating from low enlistment and re-enlistment rates, with stop-loss orders generally hitting soldiers who have already returned home from the wars and who, like Hall, who has a wife and child, are preparing to return to civilian life.

The ironies of Hall's incarceration and prosecution--he is being held without bail, pending a court-martial proceeding, which could be months off--are stunning.

In the movie Animal House Faber College's shifty Dean Wormer invokes many a sleazy tactic in his quest to expel and revoke the charter of the Delta house fraternity, most famously "Double Secret Probation", a "little known codicil" in the school constitution giving the Dean unlimited power.

Though at first glance Barack Obama may seem most unlike Dean Wormer (a very Cheney-esque character) some of his emerging executive practices, David Swanson showed in a must-read piece in Counterpunch  might make Dean Wormer blush in their hocus pocus invocation of executive powers to subtly increase government secrecy (beyond Bush era levels) and undermine accountability.

Counterpunch reports

At best, Congress writes a law at the careful instruction of the president, reversing the appropriate relationship between legislators and an executive. Once a law is created by Congress, it can be altered with a signing statement, a practice Bush engaged in with great frequency and Obama used in the same manner, but less frequently, for the first five months of his presidency, after having campaigned against it.

It would be reassuring to imagine that once a law, or a portion of a law, makes it onto the books without being signing statemented, it is then safely and securely a law. Alas, this is not the case. The president can ask the OLC to write a memo, publicly or in secret, declaring blatant violation of a law to be legal. Or a president can simply violate the law without a word of justification. It is to these two alternatives that President Obama began resorting just as his use of signing statements began to face objections from Congress and the public. From day one he also made laws with executive orders.

Obama has created a modified version of the simply-commit-crimes approach by arguing that he can silently rely on previous signing statements by himself or Bush without repeating anything in a new signing statement. This means that the series of events runs as follows: Congress passes a law; the president undoes it with a signing statement; Congress passes the same law again; the president silently considers the law meaningless; Congress erroneously assumes the new law is law.

But, what happens if Congress passes a law and no previous signing statement or other decree has dealt with it. What can a president do (other than veto the bill or sign and obey it)? Obama has chosen to ask the OLC to write memos. Remember, this is the same office that claimed the power to legalize aggressive wars and torture in secret memos that were (are) treated as law. President Obama has publicly forbidden the prosecution of these crimes, and has kept the Justice Department's own report on the matter secret for another year.

Obama has created other new techniques as well, such as undoing our laws banning torture by declaring his own ability to ban, and therefore un-ban, torture. Meanwhile he's forbidden the prosecution for torture of anyone in the federal government except those who may have strayed from the sadistic formulae of the secret memos, thereby strengthening their importance. He's also perfected the approach of announcing one's illegal powers in important speeches, including claiming the power to launch illegal wars in a Nobel Peace Prize acceptance speech, and tossing out habeas corpus in front of the U.S. Constitution at the National Archives.

Silence has long shrouded the men and women who die in the nation's immigration jails. For years, they went uncounted and unnamed in the public record. Even in 2008, when The New York Times obtained and published a federal government list of such deaths, few facts were available about who these people were and how they died.

But behind the scenes, it is now clear, the deaths had already generated thousands of pages of government documents, including scathing investigative reports that were kept under wraps, and a trail of confidential memos and BlackBerry messages that show officials working to stymie outside inquiry.

The documents, obtained over recent months by The Times and the American Civil Liberties Union under the Freedom of Information Act, concern most of the 107 deaths in detention counted by Immigration and Customs Enforcement since October 2003, after the agency was created within the Department of Homeland Security.

The Stop Terrorists Entry Program Act (STEP) was first introduced by Rep. J. Gresham Barrett (R-SC) in 2003 [PDF link]. The updated version, he explained in a media advisory, would bar citizens of Cuba, Iran, Sudan, Yemen and Syria from entry into the United States. It would further require citizens of those nations who are legally visiting or residing in the United States to be deported within 60 days.

And he's doing this as a response to an American who killed 12 other soldiers at Fort Hood, and a Nigerian who allegedly attempted to blow up an airplane on Christmas Day.

If the apparent problems with such a proposal are not not abundantly clear, the Iranian-American blog niacINsight puts it another way: "The American Army major and Nigerian alleged to have committed those attacks would not have been affected by the STEP Act."

"Twice in the past two months, radical Islamic terrorists have attacked our nation and the Administration has failed to adapt its national security and immigration policies to counter the renewed resolve of those who seek to harm our citizens," Barrett opined.