Should Alfreda Bikowsky’s Lawyer Really Be in Charge of Declassifying the Torture Report?

It took McClatchy 21 paragraphs to illustrate why it was such a big conflict of interest for Director of National Intelligence General Counsel to lead negotiations over how much of the torture report would be declassified, as he currently is doing.

According to reports in The Washington Post, Litt previously represented a CIA analyst, Alfreda Frances Bikowsky, who played a central role in the bungled rendition of Khaled el-Masri. El-Masri, who was revealed to be innocent, claimed to have been tortured by the agency.

As the rest of the article explains, Litt reviewed his role brokering the declassification process with ODNI’s Ethics officer — who is his subordinate — and she approved his participation.

But it still probably conflicts with Litt’s promises, made during his confirmation process, to recuse himself from matters affecting his former clients. And given the centrality of CIA’s absurd demand to hide even the pseudonyms making clear that the same woman who got El-Masri tortured also went out of her way to watch Khalid Sheikh Mohammed be tortured (among a fairly substantial list of other things — here’s a reminder of details on how she got promoted after the El-Masri debacle), it is a problem that Litt is brokering this process.

Don’t worry, National Security Council spokesperson Caitlin Hayden insists (fresh off insisting it’s a good thing that the White House cybersecurity czar doesn’t have a technical background), Bob Litt — the same guy hiding known dates in Internet dragnet documents, almost certainly to avoid legal repercussions — is one of the administration’s strongest proponents of what it calls “transparency.”™

“Bob Litt is one of the administration’s strongest proponents of transparency in intelligence, consistent with our national security, and he and we are fully committed to ensuring there is no conflict of interest as the administration continues to work to see the results of the committee’s review made public,” Hayden said in a statement.

Calling Bob Litt a proponent of “transparency”™ is itself cause for concern.

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Abdullah Becomes Serial Quitter While Dempsey Continues Denying Reality

The last 24 hours in Afghanistan are a perfect summation of the insanity imposed by endless US occupation.

On the election recount front, after warning for several days that he might do so, Abdullah Abdullah has withdrawn his observers from the audit process. The UN is desperate to see the process through to the end, as tweeted by ToloNews:

The Washington Post, in its article on Abdullah’s withdrawal, holds out hope that he will continue to take part in the negotiations on Kerry’s extra-constitutional shared governance plan:

It was not immediately clear Wednesday whether Abdullah still planned to participate in a unity government with Ghani.

Ghafour Liwal, a Kabul-based political analyst, said Abdullah’s campaign may be using the boycott to seek more concessions from Ghani about his future role in a new government.

“Abdullah’s team is using the withdrawal from the audit process as political pressure,” he said.

Those talks about possible power-sharing are “far more important than” the technical issue of how to conduct the audit, Liwal said.

The New York Times, though, sees Abdullah as likely withdrawing from the entire process:

Both Mr. Abdullah and Mr. Ghani pledged to Secretary of State John Kerry that they would accept the audit’s conclusions about who had won the election and then would form a government of national unity including officials from both campaigns.

But it was unclear Wednesday whether Mr. Abdullah planned to keep that commitment. He had yet to make a public comment on the matter, but statements from his aides have been negative. On Tuesday, his chief auditor, Fazul Ahmad Manawi, said that if the campaign’s demands for changes to the audit were not met, Mr. Abdullah would pull out of both the audit and the broader election process. “We will not continue to be part of the process, and any result coming out of it will not be acceptable to us and will have no credibility to us,” he said.

Gosh, Abdullah withdraws in the face of widespread fraud that he is unable to overcome. We’ve seen this movie before. Remember that was eligible to take part in a runoff election against Karzai in 2009 but withdrew just a few days before the election, knowing that Karzai would make sure of his own victory. The runoff was canceled and Karzai served a second term.

It was already becoming clear as the recount progressed and Ghani was looking more and more likely to retain an edge in the “final” count that he had no intention of really sharing power with Abdullah, so it seems likely to me that Ghani will assume the role of president in the next few weeks. It seems unlikely that there will be time for this to play out before the NATO summit at the end of next week, but the US (and by extension, NATO) stands ready to allow extra time for the eventual winner to sign the Bilateral Security Agreement.

And that brings us to the other insanity front in Afghanistan in the last 24 hours. Visiting Afghanistan to preside over the handing off of ISAF command from Joseph Dunford to John Campbell, Joint Chiefs Chair Martin Dempsey proved he is genetically incapable of straying from the military’s constant Afghanistan script of “We have the Taliban on the run and things are improving” no matter how dismal the situation: Continue reading

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SPCMA and ICREACH

Within weeks of Michael Mukasey’s confirmation as Attorney General in November 2007, Assistant Attorney General Ken Wainstein started pitching him to weaken protections then in place for US person metadata collected overseas; Mukasey did so, under an authority that would come to be known as SPCMA, on January 3, 2008.

In 2007, Wainstein explained the need to start including US person data in its metadata analysis, in part, because CIA wanted to get to the data — and had been trying to get to it since 2004.

(3) The Central Intelligence Agency’s (CIA) Interest in Conducting Similar Communications Metadata Analysis. On July 20, 2004 [days after CIA had helped NSA get the PRTT dragnet approved], the General Counsel of CIA wrote to the General Counsel ofNSA and to the Counsel for Intelligence Policy asking that CIA receive from NSA United States communications metadata that NSA does not currently provide to CIA. The letter from CIA is attached at Tab C. Although the proposed Supplemental Procedures do not directly address the CIA’s request, they do resolve a significant legal obstacle to the dissemination of this metadata from NSA to CIA. (S//SII/NF)

Wainstein also noted other DOD entities might access the information.

That’s important background to the Intercept’s latest on ICREACH, data sharing middleware that permits other intelligence agencies to access NSA’s metadata directly — and probably goes some way to answer Jennifer Granick’s questions about the story.

As the documents released by the Intercept make clear, ICREACH arose out of an effort to solve a data sharing effort (though I suspect it is partly an effort to return to access available under Bush’s illegal program, in addition to expanding it). A CIA platform, PROTON, had been the common platform for information sharing in the IC. NSA was already providing 30% of the data, but could not provide some of the types of data it had (such as email metadata) and could not adequately protect some of it. Nevertheless, CIA was making repeated requests for more data. So starting in 2005, NSA  proposed ICREACH, a middleware platform that would provide access to both other IC Agencies as well as 2nd parties (Five Eyes members). By June 2007, NSA was piloting the program.

Right in that same time period, NSA’s Acting General Counsel Vito Potenza, Acting OLC head Steven Bradbury, and Wainstein started changing the rules on contact chaining including US person metadata. They did so through some word games that gave the data a legal virgin birth as stored data that was therefore exempt from DOD’s existing rules defining the interception or selection of a communication.

For purposes of Procedure 5 of DoD Regulation 5240.1-R and the Classified Annex thereto, contact chaining and other metadata analysis don’t qualify as the “interception” or “selection” of communications, nor do they qualify as “us[ing] a selection term,” including using a selection term “intended to intercept a communication on the basis of … [some] aspect of the content of the communication.”

See this post for more on this amazing legal virgin birth.

Significantly, they would define metadata the same way ICREACH did (page 4), deeming certain login information to be metadata rather than content.

“Metadata” also means (1) information about the Internet-protocol (IP) address of the computer from which an e-mail or other electronic communication was sent and, depending on the circumstances, the IP address of routers and servers on the Internet that have handled the communication during transmission; (2) the exchange of an IP address and e-mail address that occurs when a user logs into a web-based e-mail service; and (3) for certain logins to web-based e-mail accounts, inbox metadata that is transmitted to the user upon accessing the account.

It would take several years to roll out SPCMA (remember, that’s the authority to chain on US person data, as distinct from the sharing platform); a pilot started in NSA’s biggest analytical unit in 2009. When it did, NSA made it clear that personnel could access this data to conduct analysis, but that existing dissemination rules remained the same (which is consistent with the 2006-2008 proposed activity).

Additionally, the analyst must remain cognizant of minimization procedures associated with retention and dissemination of US person information. SPCMA covers analytic procedures and does not affect existing procedures for collection, retention or dissemination of US person information. [emphasis original]

Accessing data in a database to do analysis, NSA appears to have argued, was different than disseminating it (which is a really convenient stance when you’re giving access to other agencies and trying to hide the use of such analysis).

Of course, the pitch to Mukasey only nodded to direct access to this data by CIA (and through them and PROTON, the rest of the IC) and other parts of DOD. In what we’ve seen in yesterday’s documents from the Intercept and earlier documents on SPCMA, NSA wasn’t highlighting that CIA would also get direct access to this data under the new SPCMA authority, and therefore the data would be disseminated via analysis outside the NSA. (Note, I don’t think SPCMA data is the only place NSA uses this gimmick, and as I suggested I think it dates back at least to the illegal dragnet.)

In response to yesterday’s Intercept story, Jennifer Granick suggested that by defining this metadata as something other than communication, it allows the NSA to bypass its minimization procedures.

The same is true of the USSID18 procedures. If the IC excludes unshared stored data and other user information from the definition of communications, no minimization rules at all apply to protect American privacy with regard to metadata NSA collects, either under 12333 or section 702.

[snip]

NSA may nevertheless call this “minimized”, in that the minimization rules, which require nothing to be done, have been applied to the data in question. But the data would not be “minimized” in that it would not be redacted, withheld, or deleted. 

Given what we’ve seen in SPCMA — the authority permitting the analysis of expansively defined metadata to include US person data — she’s partly right — that the NSA has defined this metadata as something other than communication “selection” — but partly missing one of NSA’s gimmicks — that NSA distinguishes “analysis” from “dissemination.”

And if a bunch of agencies can access this data directly, then it sort of makes the word “dissemination” meaningless.  Continue reading

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ICREACH and the 2009 Phone Violations

The Intercept has an article on ICREACH, the middleware NSA implemented between 2005 and 2007 to permit greater sharing of metadata with its IC partners. The article makes this claim.

ICREACH does not appear to have a direct relationship to the large NSA database, previously reported by The Guardian, that stores information on millions of ordinary Americans’ phone calls under Section 215 of the Patriot Act. Unlike the 215 database, which is accessible to a small number of NSA employees and can be searched only in terrorism-related investigations, ICREACH grants access to a vast pool of data that can be mined by analysts from across the intelligence community for “foreign intelligence”—a vague term that is far broader than counterterrorism.

I’m fairly certain that is inaccurate.

As I reported on February 6 (at a time when I technically had been hired by the Intercept but not to “report” for them), the circa January 4, 2008 phone dragnet primary order for the first time revealed that the 215 data had been combined with other data “for the purposes of analytical efficiency.”

The Court understands that for the purposes of analytical efficiency a copy of meta data obtained pursuant to the Court’s Orders in this matter will be stored in the same database with data obtained pursuant to other NSA authorities and data provided to NSA from other sources. Access to such records shall be strictly limited in accordance with the procedures set forth in paragraphs A – G.

This happened just after ICREACH got generally rolled out in late 2007.

Given the violations “discovered” in 2009, given that NSA used federated queries with Section 215 and PRTT Internet dragnet data at least as late as 2012, I’m fairly certain that the 215 (and PRTT) repositories were made accessible to a more general interface via ICREACH (which one of the documents describes as middleware) at that point. As I’ve been explaining patiently for over 6 months, the Section 215 phone dragnet we’ve been arguing about is just one small part of the more  general dragnet.

That doesn’t mean FBI and DEA and CIA had access to the raw Section 215 metadata (though it ought to raise questions, especially with regards to the Internet dragnet data, for reasons I’ll return to). As far as we know, those agencies only got direct access to FISC-authorized phone and Internet dragnet query results, not raw data.

The documents released by the Intercept make it clear other Agencies’ analysts would need PKI to log into ICREACH. And that’s how — at least after the 2009 phone violations — NSA restricted phone dragnet access to limited numbers of analysts (even while John Bates made the PRTT Internet dragnet data accessible to just about all NSA analysts in 2010). In other words, what the interface did (again, after the 2009 violations anyway) was to ensure that only those with PKI permitting access to the FISC-authorized data could get in and — this was another addition added in 2009 — could only conduct queries using identifiers approved under the more narrow permissions tied to the FISC data. But those NSA analysts who qualified definitely had access to both FISC-authorized and EO 12333 authorized data from the same one-step shop, and for at least a year the FISC-authorized dragnets got subjected to the automatic processes implemented for EO 12333.  That was the problem (or one major source of the problem): FISC-authorized phone and Internet data was being exposed to the processes permitted with EO 12333 data but not permitted with FISC data.

If I’m correct, the inclusion of FISC-approved data in ICREACH led to (or exacerbated) FISC-approved data being treated as EO 12333 data for at least a year. That is, it led to the violations that included (among other things) 3,000 US persons being watchlisted without First Amendment review.

I will have more about what the Intercept documents show later (as well as some thoughts on what the structure of ICREACH might suggest about the NSA’s technical problems with the phone dragnet). They answer a number of questions about the metadata dragnet I’ve been posing for months.

Update: Adding that the point of this sharing is two-way. Not only does NSA share huge amounts of metadata with FBI and CIA, but NSA can contact chain its own metadata with non-metadata from the other agencies (documents mention things like passenger data and clandestine collection). That is, while I don’t think FBI and CIA had access to raw BR FISA data (at least not after 2009), I do think NSA was chaining on more than BR FISA.

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PCLOB Member Rachel Brand Asked NSA General Counsel to Help Her Dissent from PCLOB

Let me say straight out: Privacy and Civil Liberties Oversight Board member Rachel Brand is no slouch. She’s very smart and very accomplished.

All that said, I am rather intrigued by the way she consulted NSA General Counsel Raj De several times – as illustrated by these emails Jason Leopold liberated from PCLOB —  as she worked on her dissent to the Democratic PCLOB members’ conclusion that the Section 215 dragnet is illegal.

On January 6, Brand emailed De. “Do you have a couple minutes to talk about a PCLOB matter today or tomorrow?” They scheduled some time to talk at midday the next day — though a request from Keith Alexander appears to have forced De to delay. Nevertheless, by 1:30 on January 7, it appears De and Brand spoke, because De forwarded two things: I Con the Record’s press release announcing the FISA Court had reauthorized the dragnet even after Judge Richard Leon ruled it unconstitutional (De makes no mention in his email, but the order had considered Leon’s ruling before reauthorizing the program), and the GPO transcript of Robert Mueller’s claim in a June 2013 House Judiciary Committee hearing that the dragnet would have prevented 9/11.

Ten days later, on January 17, Brand was emailing De again, after having seen each other that morning (that was the morning President Obama announced his own reforms to the dragnet, so it may have been in that context). She sent NSA’s General Counsel a paragraph, with one sentence highlighted, asking if it was accurate. He responded with “some suggestions for accuracy for your consideration … Feel free to give a call if you want to discuss, or would like more detail.”

Then, over that weekend, Brand and De exchanged the following emails:

Saturday, January 18, 12:31: Brand sends “the current draft of my separate statement” stating she wants “to be sure there is nothing factually or legally inaccurate in it;” she says it is currently 5 pages and tells De she needs to give PCLOB Chair David Medine the final by Sunday night

Saturday, January 18, 2:11: De responds, “happy to”

Sunday, January 19, 10:51: De responds, saying, “not that you need or want my validation, but for what’s [sic] it is worth it really reads quite well.” De then provides 3 “additional factual details” which “might fit in if you wanted to use them;” those bullets are redacted

Sunday, January 19, 3:47: Brand replies, stating that Beth (Elisebeth Collins Cook, the other Republican on PCLOB) “explicitly makes the first two in her separate statement” and that she’s “trying to keep this short, so have to forego making every available point”

Continue reading

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With Clock Still Ticking, Afghanistan No Closer to Resolving Election Crisis

Reuters reminds us this morning that under one previous set of plans, today was to have been inauguration day for Afghanistan’s new president. Karzai is now insisting that the candidates must work out the vote audit and their power sharing agreement very quickly because he intends to stand by September 2 as the definite inauguration day. But that doesn’t look like a realistic deadline, either, according to Reuters:

But officials from the rival camps, as well as from the election commission, doubt that the Sept. 2 date would be met.

“Honestly, I cannot come out with something definite on that, but I hope. It’s Afghanistan. Things are unpredictable,” said Abdullah’s spokesman, Mujib Rahman Rahimi.

An official for Ghani’s campaign, who declined to be identified, said little progress had been made in interpreting the framework for a power-sharing deal.

“Nothing yet has added to the political framework and the commission couldn’t reach an agreement in most of the areas,” the official said, adding that the candidates were meeting to try to break the deadlock.

Many Western diplomats also say the process is unlikely to be resolved in time.

“I don’t see how there will be any space for compromise, because the pie is too small and there are too many people who want a piece,” said one Western official.

BBC chimes in with a report today that the small pie is getting even smaller:

Afghanistan’s finance minister has said deadlock over the disputed presidential election has cost the economy $5bn.

Omar Zakhilwal told the BBC he would have to cut salaries and lay off government workers if the crisis was not resolved by the end of the month.

Foreign investment is at a standstill and government revenues have fallen sharply since the April vote.

Khaama Press adds that in addition to the $5 billion in lost revenues, Afghanistan also has seen around $6 billion in capital flight due to the election dispute.

The final process of invalidating votes is apparently underway this afternoon in Kabul, but as Carlotta Gall noted Saturday in the New York Times, the math of the audit is daunting:

The huge scale of the fraud — involving perhaps more than two million ballots out of roughly eight million reported cast, according to independent international estimates — has stymied efforts to achieve a democratic transition. Secretary of State John Kerry has intervened twice to keep the campaigns in agreement on a unity government and a complete audit of the vote, but the process has repeatedly broken down in disputes.

/snip/

Mr. Abdullah was the clear leader in the first round, with a 900,000-vote margin over Mr. Ghani. But the preliminary results of the runoff showed a gigantic improvement for Mr. Ghani — an “impossible” one, according to one Western official — of 1.9 million votes.

Hmm, some dirty hippie had come up with very similar math on the dramatic change in vote numbers–back on July 8.

Oh, and even if by some miracle, a new “final” vote tally does appear before September 2, don’t look for an agreement on the structure of the power sharing government any time soon.

With the NATO summit still planned for September 4, that looms as the real deadline for the West to decide if the zero option on troop deployment after the end of this year becomes the only option.

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Behold, John Brennan’s Scary Memo!

Brennan with TortureI’ve been writing for a long time about the “Scary Memos” the government used to justify its dragnet.

As the Joint IG Report described, they started in tandem with George Bush’s illegal wiretap program, and were written before each 45-day reauthorization to argue the threat to the US was serious enough to dismiss any Fourth Amendment concerns that the President was wiretapping Americans domestically.

Jack Goldsmith relied on one for his May 6, 2004 memo reauthorizing some — but not all — of the dragnet.

Yesterday, James Clapper’s office released the Scary Memo included in the FISA Court application to authorize the Internet dragnet just two months later, on July 14, 2004.

ODNI calls it the Tenet Declaration — indeed it is signed by him (which, given that he left government on July 11, 2004 and that final FISC applications tend to be submitted days before their approval, may suggest signing this Scary Memo was among the very last things he did as CIA Director).

Yet the Memo would have been written by the Terrorist Threat Integration Center, then headed by John Brennan.

Much of the Scary Memo describes a “possible imminent threat” that DOJ plans to counter by,

seeking authority from this Court [redacted] to install and use pen register and trap and trace devices to support FBI investigations to identify [redacted], in the United States and abroad, by obtaining the metadata regarding their electronic communications.

There is no mention of NSA. There is no mention that the program operated without legal basis for the previous 2.5 years. And there’s a very curious redaction after “this Court;” perhaps CIA also made a show of having the President authorize it, so as to sustain a claim that all this could be conducted exclusively on Presidential authority?

After dropping mention of WMD – anthrax! fissile material! chemical weapons! — the Scary Memo admits it has no real details about this “possible imminent threat.”

[W]e have no specific information regarding the exact times, targets, or tactics for those planned attacks, we have gathered and continue to gather intelligence that leads us to believe that the next terrorist attack or attacks on US soil could be imminent.

[snip]

Reporting [redacted] does not provide specific information on the targets to be hit or methods to be used in the US attack or attacks.

But based on “detainee statements and [redacted] public statements since 9/11,” the Scary Memo lays out, CIA believes al Qaeda (curiously, sometimes they redact al Qaeda, sometimes they don’t) wants to target symbols of US power that would negatively impact the US economy and cause mass casualties and spread fear.

It took an “intelligence” agency to come up with that.

Based on that “intelligence,” it appears, but not on any solid evidence, CIA concludes that the Presidential conventions would make juicy targets for al Qaeda.

Attacks against or in the host cities for the Democratic and Republican Party conventions would be especially attractive to [redacted].

And because of that — because CIA’s “intelligence” has decided a terrorist group likes to launch attacks that cause terror and therefore must be targeting the Presidential conventions — the FBI (though of course it’s really the NSA) needs to hunt out “sleeper cells.”

Identifying and disrupting the North American-based cells involved in tactical planning offers the most direct path to stopping an attack or attacks against the US homeland. Numerous credible intelligence reports since 9/11 indicate [redacted] has “sleepers” in North America. We judge that these “sleepers” have been in North American, and the US in general, for much of the past two years. We base our judgment, in part, [redacted] as well as on information [redacted] that [redacted] had operatives here.

Before we get to what led CIA to suggest the US was targeted, step back and look at this intelligence for a moment. This report mentions detainee reporting twice. It redacts the name of what are probably detainees in several places. Indeed, several of the claims in this report appear to match those from the exactly contemporaneous document CIA did on Khalid Sheikh Mohammed to justify its torture program, thus must come from him.

Yet, over a year after KSM had been allegedly rendered completely cooperative via waterboarding, CIA still did not know the answer to a question that KSM was probably one of the only people alive who could answer.

We continue to investigate whether the August 2001 arrest of Zacarias Moussaoui may have accelerated the timetable for the 9/11 attacks because he knew of al-Qa’ida’s intention to use commercial aircraft as weapons.

Nevertheless, they believed KSM was being totally straight up and forthcoming.

Note, too, the CIA relied on claims of sleeper cells that were then two years old, dating back to the time they were torturing Abu Zubaydah, whom we know did give “intelligence” about sleeper cells.

To be sure, we know CIA’s claims of a “possible imminent threat” in the US do not derive exclusively from CIA’s earlier torture (though CIA had claimed, just months earlier, that their best intelligence came from that source for the Inspector General’s report).

Less than 3 weeks after this Scary Memo was written, we’d begin to see public notice of this “possible imminent threat,” when Tom Ridge raised the threat level on August 1, 2004 because of an election year plot, purportedly in response to the capture of Muhammad Naeem Noor Khan in Pakistan on July 13 (which could only have been included in “the Tenet declaration” if Khan were secretly arrested and flipped earlier, because Tenet was no longer CIA Director on July 13). But what little basis the election year plot had in any reality dated back to the December 2003 British arrest and beating of Khan’s cousin, Babar Ahmed, which would lead to both Khan’s eventual capture as well as the British surveillance of Dhiren Barot as early as June 10 and the latter’s premature arrest on August 3. KSM’s nephew, Musaad Aruchi, was also handed over by Pakistan to CIA on June 12; best as I know, he remains among those permanently disappeared in CIA’s torture program. This would also lead to a new round of torture memos reauthorizing everything that had been approved in the August 1, 2002 Bybee Memo plus some.

The claims the US was a target derive, based on the reporting in the NYT, from Dhiren Barot. Barot apparently did want to launch a terrorist attack. Both KSM and Hambali had identified Barot during interrogations in 2003, and he had scouted out attack sites in the US in 2000 and 2001. But his active plots in 2004 were all focused on the UK. In 2007 the Brits reduced his sentence because his plots weren’t really all that active or realistic.

Which is to say this election plot — the Scary Plot that drives the Scary Memo that provided the excuse for rolling out (or rather, giving judicial approval for continuing) an Internet dragnet that would one day encompass all Americans — arose in significant part from 2003 torture-influenced interrogations that led to the real world detention of men who had contemplated attacking the US in 2000, but by 2004 were aspirationally plotting to attack the UK, not the US, as well as men who may have been plotting in Pakistan but were not in the US.

That, plus vague references to claims that surely were torture derived, is what John Brennan appears to have laid out in his case for legally justifying a US dragnet.

You see, it’s actually John Brennan’s dragnet — it all goes back to his Scary Memo — and his role in it is presumably one of the reasons he doesn’t want us to know how many lies went into the CIA torture program.

Brennan’s Scary Memo provides yet more evidence how closely linked are torture and the surveillance of every American.

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Adventures in Credulous NSA Journalism, Episode 2,524

The Hill sees fit to quote NSA’s Compliance Officer John DeLong boasting that the NSA put in (one of) the reforms Obama announced the day he announced it — which (DeLong claimed) was proof that NSA’s compliance system works.

Earlier this year, Obama directed the NSA to get court approval before it searched a database of Americans’ phone records and limited those searches to people two “hops” away from a suspect.

DeLong said on Thursday that the changes were put into effect the same day that the president announced them.

“It helped to have a compliance program — a compliance workforce — that was already in place,” he said. That way, the agency was not operating “from a cold start.”

As I noted in January when commentators first started hailing what the Administration billed as a great change, it was instead presidential codification of a policy that had been in place since 2011.

I’m seeing a lot of enthusiasm about President Obama’s promise to limit the NSA to 2 hops on its phone dragnet.

Effective immediately, we will only pursue phone calls that are two steps removed from a number associated with a terrorist organization instead of three.

But it’s not that big of a limit.

As far back as 2011, the NSA had standardized on 2-hops, only permitting a 3rd with special approval. (See page 13.)

While the BR Order permits contact chaining for up to three hops, NSA has decided to limit contact chaining to only two hops away from the RAS-approved identifier without prior approval from your Division management to chain the third hop.

So in effect, Obama has replaced the NSA’s internal directive limiting the hops to 2 with his own directive (which can be pixie dusted with no notice) limiting the hops to 2.

What NSA’s ability to implement this change immediately shows is not the great performance of its compliance program, but rather the ability to do nothing while claiming a great victory over the status quo.

But don’t look for that to appear in most reporting on the NSA.

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Translation Issues Put Zarif’s Remarks Somewhere Between Arak and a Hard Place (Iraq)

On Wednesday night, Iranian Foreign Minister Mohammad Zarif was interviewed by Iranian state television. Reports about what he said in the interview provided quite the adventure yesterday. Here is Reuters this morning trying to sort out just what took place:

On Thursday a story from the official Iranian News Agency (IRNA) cited by several news organizations including Reuters reported Foreign Minister Javad Zarif as saying that if Iran agreed to “do something in Iraq, the other side in the negotiations will need to do something in return”.

“All the sanctions imposed on Iran over its nuclear activities should be lifted in return for its help in Iraq,” it quoted him as saying.

But later on Thursday IRNA reported foreign ministry spokeswoman Marzieh Afkham as dismissing “reports by some news agencies about Iran and U.S. cooperation in Iraq”.

“These reports are a misinterpretation of the foreign ministerˈs remarks and are ‘totally baseless’,” IRNA reported her as saying.

So what did Zarif actually say? Here is PressTV’s translation of the sentence in question:

“If we agree to do certain things at [the nuclear facility in the Iranian city of] Arak, then they should agree to do certain things in return; one of those things would be for them to go to the [UN] Security Council and lift the sanctions,” Zarif stated.

Wow. Arak is the site of the heavy water reactor that has been a point of contention in the nuclear negotiations from the start. If you watch the YouTube above, there is a translation of Zarif’s remarks that does seem to suggest that the context for the remark does not fit at all with a mention of Iraq. A similar translation appears in the video at the PressTV site linked above.

Further clarification of that point comes from a Foreign Ministry spokesperson at FarsNews:

Iranian Foreign Ministry Spokeswoman Marziyeh Afkham categorically dismissed media reports about Tehran’s call on the US to remove the sanctions if it wants the former’s cooperation against ISIL in Iraq.

Afkham’s remarks came as certain foreign media outlets misquoted Iranian Foreign Minister Mohammad Javad Zarif as saying that Iran is ready to cooperate with the US in Iraq in return for lifting UN sanctions against Iran.

“These reports are a misinterpretation of Foreign Minister’s remarks and are totally baseless,” Afkham said on Thursday.

The Iranian foreign minister had called on the US to remove its unilateral sanctions against Iran in order to pave the way for Iran’s further cooperation with the West on nuclear issues, including Arak heavy water facility.

Several western news agencies, including AFP and Reuters, misquoted Zarif’s comments by substituting the word “Iraq” for “Arak”, which the foreign minister had actually used. The incorrect quote attributed to Zarif implied that Iran has conditioned its readiness to help tackle the Takfiri Islamic State of Iraq and the Levant (ISIL) terrorists in Iraq on the removal of the sanctions imposed on Iran by the West.

The State Department seems to have figured out the error quickly.  From yesterday’s press briefing: Continue reading

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NSA’s Lawyers Missed “Virtually Every Record” over 25 Reviews

As I’ve written before, the Internet dragnet did not get through the its first 90 day Primary Order before it violated the rules laid out by the FISA Court. In an effort to convince Judge Kollar-Kotelly they could conduct the dragnet according to her orders, NSA’s Office of General Counsel agreed to do spot checks of the data twice every 90-day authorization. That requirement stayed in place for the rest of the dragnet.

Which means between 2004 and 2009, OGC should have conducted over 25 spot checks of the data NSA obtained under the program.

And yet, in that entire time, OGC somehow never noticed that “virtually every record” NSA was taking in included data that it was not authorized to collect.

That’s one of the two crazy things about the Internet dragnet that this month’s document dump made clear. I explain them in this piece at The Week. The other is that, in an end-to-end report conducted from roughly March through September of 2009, NSA also didn’t find that virtually every record they had collected had broken the law.

Exhibit A is a comprehensive end-to-end report that the NSA conducted in late summer or early fall of 2009, which focused on the work the agency did in metadata collection and analysis to try and identify people emailing terrorist suspects.

The report described a number of violations that the NSA had cleaned up since the beginning of that year — including using automatic alerts that had not been authorized and giving the FBI and CIA direct access to a database of query results. It concluded the internet dragnet was in pretty good shape. “NSA has taken significant steps designed to eliminate the possibility of any future compliance issues,” the last line of the report read, “and to ensure that mechanisms are in place to detect and respond quickly if any were to occur.”

But just weeks later, the Department of Justice informed the FISA Court, which oversees the NSA program, that the NSA had been collecting impermissible categories of data — potentially including content — for all five years of the program’s existence.

[snip]

Judge John Bates, then head of FISC, emphasized that the NSA had missed the unauthorized data in its comprehensive report. He noted “the extraordinary fact that NSA’s end-to-end review overlooked unauthorized acquisitions that were documented in virtually every record of what was acquired.” Bates went on, “[I]t must be added that those responsible for conducting oversight at NSA failed to do so effectively.”

Nevertheless, Bates went on to vastly expand the program.

No wonder James Clapper’s office made those documents so hard to read. There is no way to read them and believe the NSA can be trusted to stay within the law.

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Emptywheel Twitterverse

emptywheel @JasonLeopold A clever FOIA terrorist would use this moment to FOIA SSCI.
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emptywheel @ChristopherAnn3 Were you in charge of keeping the weird priesthood alive so we can fight this monstrosity?
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emptywheel @billmon1 Millions of orcs are constructing evil tweets in a white tower.
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bmaz @ggreenwald Man, couldn't @rdevro have at least done a Rick Perry like smiling glamour mugshot??
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bmaz @rickhasen @mgsledge @ryanjreilly @mzzmariah October 2013. World Series.
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emptywheel Did you also notice that chill that swept through Twitter about an hour ago? https://t.co/PbiR0YI6gW
45mreplyretweetfavorite
emptywheel @Travis_Waldron And while they're at it, I've been married 20 years and that's, you know, old and boring too.
46mreplyretweetfavorite
emptywheel @Travis_Waldron My daughter's 19 so too old to attract as many rich people as I need to get richer.
48mreplyretweetfavorite
emptywheel @Travis_Waldron Wait. Just did the math. He HAS a kid who's 19. Is he ready to bulldoze his daughter for a new one too?
51mreplyretweetfavorite
emptywheel @Atrios I did have that thought when I read the story. Prolly why even I will never be a female senator.
55mreplyretweetfavorite
emptywheel @Travis_Waldron Assuming his children are younger than his 20 yr marriage. But what will he do when they turn 17?
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