NSA’s Disingenuous Claims about EO 12333 and the First Amendment

SIGINT and 215Thanks to John Napier Tye’s Sunday op-ed, some surveillance watchers are just now discovering EO 12333, which I’ve written some 50 posts about over the last year.

Back in January, I focused on one of the most alarming disclosures of the 2009 phone dragnet problems, that 3,000 presumed US person identifiers were on an alert list checked against each day’s incoming phone dragnet data. That problem — indeed, many of the problems reported at the beginning of 2009 — arose because the NSA dumped their Section 215 phone dragnet data in with all the rest of their metadata, starting at least as early as January 4, 2008. It took at least the better part of 2009 for the government to start tagging data, so the NSA could keep data collected under different authorities straight, though once they did that, NSA trained analysts to use those tags to bypass the more stringent oversight of Section 215.

One thing that episode revealed is that US person data gets collected under EO 12333 (that’s how those 3,000 identifiers got on the alert list), and there’s redundancy between Section 215 and EO 12333. That makes sense, as the metadata tied to the US side of foreign calls would be collected on collection overseas, but it’s a detail that has eluded some of the journalists making claims about the scope of phone dragnet.

Since I wrote that early January post, I’ve been meaning to return to a remarkable exchange from the early 2009 documents between FISC Judge Reggie Walton and the government. In his order for more briefing, Walton raised questions about tasking under NSA’s SIGNIT (that is, EO 12333) authority.

The preliminary notice from DOJ states that the alert list includes telephone identifiers that have been tasked for collection in accordance with NSA’s SIGINT authority. What standard is applied for tasking telephone identifiers under NSA’s SIGINT authority? Does NSA, pursuant to its SIGINT authority, task telephone identifiers associated with United States persons? If so, does NSA limit such identifiers to those that were not selected solely upon the basis of First Amendment protected activities?

The question reveals how little Walton — who had already made the key judgments on the Protect America Act program 2 years earlier — knew about EO 12333 authority.

I’ve put NSA’s complete response below the rule (remember “Business Records” in this context is the Section 215 phone dragnet authority). But basically, the NSA responded,

  • Even though the alert list included IDs that had not been assessed or did not meet Reasonable Articulable Suspicion of a tie to one of the approved terrorist groups, they at least had to have foreign intelligence value. And occasionally NSA’s counterterrorism people purge the list of non-CT IDs.
  • Usually, NSA can only task (a form of targeting!) a US person under a FISA authority.
  • Under EO 12333 and other related authorities, NSA can collect SIGINT information for foreign and counterintelligence purposes; its collection, retention, and dissemination of US person is governed by Department of Defense Regulation 5240.1-R and a classified annex. (see page 45 for the unclassified part of this)
  • Since 2008, if the NSA wants to target a US person overseas they need to get and comply with a FISA order.
  • NSA provides First Amendment protection in two ways — first, by training analysts to spy “with full consideration of the rights of United States persons.”
  • NSA provides First Amendment protection under EO 12333 by prohibiting NSA “from collecting or disseminating information concerning US persons’ ‘domestic activities’ which are defined as ‘activities that take place in the domestic United States that do not involve a significant connection to a foreign power, organization, or person.’”

The First Amendment claims in the last two bullets are pretty weak tea, as they don’t actually address First Amendment issues and contact chaining is, after all, chaining on associations.

That’s all the more true given what we know had already been approved by DOJ. In the last months of 2007, they approved the contact chaining through US person identifiers of already-collected data (including FISA data). They did so by modifying DOD 5240.1 and its classified annex so as to treat what they defined (very broadly) as metadata as something other than interception.

The current DOD procedures and their Classified Annex may be read to restrict NSA’s ability to conduct the desired communications metadata analysis, at least with respect to metadata associated with United States persons. In particular, this analysis may fall within the procedures’ definition of, and thus restrictions on, the “interception” and “selection” of communications. Accordingly, the Supplemental Procedures that would govern NSA’s analysis of communications metadata expressly state that the DOD Procedures and the Classified Annex do not apply to the analysis of communications metadata. Specifically, the Supplemental Procedures would clarify that “contact chaining and other metadata analysis do not 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.” Once approved, the Supplemental Procedures will clarify that the communications metadata analysis the NSA wishes to conduct is not restricted by the DOD procedures and their Classified Annex.

Michael Mukasey approved that plan just as NSA was dumping all the Section 215 data in with EO 12333 data at the beginning of 2008 (though they did not really roll it out across the NSA until later in 2009).

Nowhere in the government’s self-approval of this alternate contact chaining do they mention First Amendment considerations (or even the domestic activities language included in their filing to Walton). And in the rollout, they explicitly permitted starting chains with identifiers of any nationality (therefore presumably including US person) and approved the use of such contact chaining for purposes other than counterterrorism. More importantly, they expanded the analytical function beyond simple contact chaining, including location chaining.

All with no apparent discussion of the concerns a FISC judge expressed when data from EO 12333 had spoiled Section 215 data.

We will, I expect, finally start discussing how NSA has been using EO 12333 authorities — and how they’ve represented their overlap with FISA authorized collection. This discussion is an important place to start. Continue reading

Tweet about this on TwitterShare on RedditShare on FacebookGoogle+Email to someone

With Afghan Runoff Audit Hopelessly Mired, Clock Running Out on US Hopes for BSA

I’m wishing that I had started a spreadsheet a couple of years ago to track the various deadlines the US has issued for having a signed Bilateral Security Agreement in hand. Such an agreement would authorize US troops to remain in Afghanistan with criminal immunity after the current agreement expires at the end of this year. Just a search of the tag “Bilateral Security Agreement” brings back three pages of posts on the topic at Emptywheel.  Early in the process, the US position was that the mental giants in our military needed a full year to plan whether or not we were withdrawing completely, and so a signed BSA had to be in hand by the beginning of 2014. Then, after Karzai defied the loya jirga and stated that he would not sign the agreement while in office, the US pinned its hopes on the presidential elections, since the two leading candidates both stated they would sign the agreement immediately upon winning. There was the unrealistic hope that a clear winner would emerge from the first round of voting in April, but that did not come to pass.  The runoff was originally slated for May 28, then moved to June 7 and finally took place June 14. But when the preliminary results of the runoff showed Abdullah moving from beating Ghani by a million votes in the first round to losing to him by a million votes in the runoff, the problems with counting votes in Afghanistan have moved to the center of the ongoing crisis.

The crisis shows no prospect of abating. Even though Kerry brokered an extra-constitutional “unity government” agreement between Abdullah and Ghani (and there has even been a nebulous conference on the new structure), the dim prospects for these two actually sharing power can be seen in how long the arguments over how to audit the runoff votes has carried on. We have had countless pronouncements out of Kabul that the snail’s pace of the audit will accelerate any day now, once the two sides agree on the procedure. The UN finally put forward its own proposal for a procedure yesterday since the candidates could not agree on one. Further disruptions in the audit will come next week as two more days will be lost to Eid. With thousands of ballot boxes still to be audited, there is no way that an official final tally will be issued by the specified August 2 date Karzai had planned for inauguration of the new president.

It’s hard to see how Kerry’s fantasy of a shared government will ever come to pass. Each candidate in the runoff will have strong grounds for declaring the results fraudulent should the other be declared the winner of the audit, and I think that is behind the impasse on developing an audit procedure. The argument can be made that there is no legitimate government in place since Karzai’s term has already expired, so there simply is no way to say who should be responsible for signing a BSA at this point. Back in December, the US openly floated the idea of working around Karzai to get someone else to sign the agreement. I’m thinking that plan is being dusted off again this week in Washington.

Kerry and the rest of the Obama administration have already shown that they are quite willing to work outside Afghanistan’s constitution when it is in their interest (as demonstrated by the shared government plan). As noted above, Karzai’s term officially expired in May. I look for the US work-around of Afghanistan’s constitution to continue and for some sort of interim government to be declared once one or both of the candidates formally abandon(s) the audit process. You can bet that government will be headed by someone who will sign the BSA immediately. But remaining in Afghanistan likely also will suddenly require a lot more US troops since it also seems likely that violence will break out between supporters of Abdullah and Ghani rather than the two sharing the new government. I doubt Obama has the courage to simply walk away from Afghanistan, but in my opinion that still remains the best option for both the US and Afghanistan. Walking away is needed because it seems clear at this point that a US presence in Afghanistan serves only to make the situation worse.

Tweet about this on TwitterShare on RedditShare on FacebookGoogle+Email to someone

Gitmo: Broken Minds, Broken Justice

The WaPo reports that Judge James Pohl has just severed Ramzi Bin al-Shibh from 9/11 trial, creating two 9/11 trials. He did so for two reasons: because he could not quickly resolve whether the FBI investigation into defense attorneys has compromised his representation, and because the court has not yet determined whether he is competent to stand trial.

Army Col. James L. Pohl said the court needs to resolve whether Binalshibh has the mental capacity to participate in a trial and whether he needs another lawyer because of a potential conflict of interest after theFBI questioned members of his defense team.

These issues “are not expected to be completed in the near term,” Pohl said in his order.

While both issues are emblematic of the clusterfuck that is Gitmo, I’m particularly struck by the uncertainty whether bin al-Shibh is competent.

Earlier this year, prosecutors asked the judge to evaluate Binalshibh after he repeatedly interrupted court proceedings and had to be removed because he ignored warnings to stop the disruptions. However, neither the government nor Binalshibh’s lawyer argue that he is mentally incompetent.

“The judge’s decision today seems to indicate that the issue of competency is still open,” [bin al-Shibh lawyer James] Harrington said. “We have to clarify that with him.”

After all, the entire point of the torture program was to break these men. They succeeded in doing so with bin al-Shibh (that is confirmed by other sources). But now they can’t try him — it sounds like this severance is probably a tacit admission he can never stand trial, for a variety of reasons.

I would much prefer civilian justice, and have said so numerous times. But this Kangaroo Court in Gitmo has sure succeeded in demonstrating all the problems with the US counterterrorism approach.

Tweet about this on TwitterShare on RedditShare on FacebookGoogle+Email to someone

In a Nation Ravaged by Banksters, FBI Can’t Afford the “Luxury” of Frivolous Counterterrorism Stings

In a JustSecurity post reviewing the same speech that I observed ignored US failures to prevent violent extremism, NYU Professor Samuel Rascoff defends the US use of counterterrorism stings, even in spite of the details revealed by HRW’s report on all the problems related to them. David Cole has an excellent response, which deals with many of the problems with Rascoff’s argument.

I’d like to dispute a more narrow point Rascoff made when he suggested that, because we have so many fewer trained militants than the Europeans, we “can[] afford” the “luxury” of stings.

There are now approximately 3,000 European passport holders fighting in Syria and Iraq. In the time that it took Najibullah Zazi to drive from Denver to New York, a fighter could drive from Aleppo to Budapest. What that means is that European officials are relatively more consumed than American counterparts in keeping up with, and tabs on, trained militants.   Orchestrating American-style sting operations is, in a sense, a luxury they cannot afford.

The claim is astonishing on its face, in that it suggests that, because we don’t have real militants like Europe does, we should engage in the “luxury” of entrapping confused young Muslim men and sending them to expensive decades-long prison terms.

Think a bit more about that notion of “luxury” and the financial choices we make on law enforcement. Here are some numbers taken from two sources: the HRW report (I basically searched on the dollar sign, though this doesn’t include every mention of dollars) and today’s Treasury settlement with Bank of America for helping 10 drug kingpins launder their money over a four year period, three years of which constituted “egregious” behavior.

First, HRW reports that FBI spends over $1.3 billion a year on counterterrorism, much of it stings, leaving less than $2 billion for all other investigations.

More than 40 percent of the FBI’s operating budget of $3.3 billion is now devoted to counterterrorism.

That allows the FBI to pay some of its informants and experts hefty sums.

Beginning in August 2006, the FBI paid Omar $1,500 per week during the investigation. Omar received a total of $240,000 from the FBI. This included: $183,500 in payment unrelated to expenses, and $54,000 for expenses incurred during the investigation including car repair and rent.

[snip]

“Kohlmann is an expert in how to use the Internet, like my 12-year-old. He has found all the bad [stuff] about Islam, and testifies as if what he is reading on the Internet is fact. He was paid around $30,000 to look at websites, documents, and testify.”

These informants sometimes promise — but don’t deliver — similar hefty sums to the guys they’re trying to entrap.

Forty-five-year-old James Cromitie was struggling to make ends meet when, in 2009, FBI informant Hussain offered him as much as $250,000 to carry out a plot which Hussain—who also went by “Maqsood”—had constructed on his own.

[snip]

The informant proposed to lend Hossain $50,000 in cash so long as he paid  him back $2,000 monthly until he had paid back $45,000.

Which is particularly important because many of these guys are quite poor (and couldn’t even afford to commit the crimes they’re accused of).

At the time he was in contact with the informant and the undercover [agent] he was living at home with his parents in Ashland and he didn’t have a car, he didn’t have any money and he didn’t have a driver’s license because he owed $100 and he didn’t have $100 to pay off the fine. In various parts of the investigation he didn’t have a laptop and he didn’t have a cellphone. At one point the informant gave him a cell phone.

And some of these crimes (the very notable exceptions in the HRW report include two material support cases, both of which are close calls on charity designations, but which involved very large sums, $13 million a year in the case of Holy Land Foundation) involve relatively minscule sums.

According to the prosecution, Mirza was the ringleader in collecting around $1,000—provided by the FBI agents and co-defendant Williams—that he handed to a middleman with the intent that it go to families of Taliban fighters.

So one theme of the HRW report is we’re spending huge amounts entrapping what are often poor young men in miniscule crimes so taxpayers can pay $29,000 a year to keep them incarcerated for decades.

These are the stakes for what Rascoff calls a “luxury.” At a time of self-imposed austerity, these stings are, indeed, a luxury.

Compare that to what happens to Bank of America, which engaged in “egregious” violations of bank reporting requirements for three years (and non-egregious ones for a fourth), thereby helping 10 drug kingpins launder their money. No one will go to jail. Bank of America doesn’t even have to admit wrong-doing. Instead, it will have to pay a $16.5 million fine, or just 0.14% of its net income last year.

This settlement came out of a Treasury investigation, not an FBI one.

But when DOJ’s Inspector General investigated what FBI did when it was given $196 million between 2009 and 2011 to investigate (penny ante) mortgage fraud, FBI’s focus on the issue actually decreased (and DOJ lied about its results). When FBI decided to try to investigate mortgage fraud proactively by using undercover operations, like it does terrorism and drugs, its agents just couldn’t figure out how to do so (in many cases Agents were never told of the effort), so the effort was dropped.

Banks commits crimes on a far grander scale than most of these sting targets. But FBI throws the big money at its counterterrorism stings, and not the banks leaching our economy of its vitality.

Rascoff accuses HRW’s and similar interventions of being one-dimensional.

[F]or all the important questions about official practices that critics raise, they have tended to ignore some hard questions about the use of stings and the tradeoffs they entail.Instead, their interventions have an exaggerated, one-dimensional quality to them.

But he himself is guilty of his own crime. Because every kid the FBI entraps in a $240,000 sting may represent an actual completed bank crime that will never be investigated. It represents an opportunity cost. The choice is not just sting or no sting or (more accurately, as David Cole points out) sting or community outreach and cooperation.

Rather, the choice is also between manufacturing crimes to achieve counterterrorism numbers or investigating real financial crimes that are devastating communities.

So long as we fail to see that tradeoff, we fail to address one major source of the economic malaise that fuels other crimes.

Ignoring bank crimes is, truly, something we don’t have the luxury of doing. Nevertheless, we continue to choose to go on doing so, even while engaging in these “luxurious” counterterrorism stings that accomplish so little.

Tweet about this on TwitterShare on RedditShare on FacebookGoogle+Email to someone

Fact-Checking 9/11 Anniversary Report on Info and Dragnets with 9/11 Report

In Salon, I point out something funny about the report released on Tuesday to mark the 10 year anniversary of the release of the 9/11 Commission report. The report says we must fight the “creeping tide of complacency.” But then it says the government has done almost everything the 9/11 Commission said it should do.

There is a “creeping tide of complacency,” the members of the 9/11 Commission warned in a report released on Tuesday, the 10-year anniversary of the release of their original report. That complacency extends not just to terrorism. “On issue after issue — the resurgence and transformation of al Qaeda, Syria, the cyber threat — public awareness lags behind official Washington’s.” To combat that “creeping tide of complacency,” the report argues, the government must explain “the evil that [is] stalking us.”

Meanwhile, the commissioners appear unconcerned about complacency with climate change or economic decline.

All that fear-mongering is odd, given the report’s general assessment of counterterrorism efforts made in the last decade. “The government’s record in counterterrorism is good,” the report judged, and “our capabilities are much improved.”

If the government has done a good job of implementing the 9/11 Commission recommendations but the terror threat is an order of magnitude worse now, as the report claims, then those recommendations were not sufficient to addressing the problem. Or perhaps the 13 top security officials whom the Commission interviewed did a slew of other things — like destabilizing Syria and Libya — that have undermined the apparatus of counterterrorism recommended by the original 9/11 Commission?

Which is a polite way of saying the 10-year report is unsatisfying on many fronts, opting for fear-mongering than another measured assessment about what we need to do to protect against terrorism.

Perhaps that’s because, rather than conduct the public hearings with middle-level experts, as it boasted it had done in the original report, it instead privately interviewed just the people who’ve been in charge for the last 10 years, all of whom have a stake in fear and budgets and several of whom now have a stake in profiting off fear-mongering?

Suffice it to say I’m unimpressed with the report.

Which brings me to this really odd detail about it.

The report takes a squishy approach to Edward Snowden’s leaks. It condemns his and Chelsea Manning’s leaks and suggests they may hinder information sharing. It also suggests Snowden’s leaks may be impeding recruiting for cybersecurity positions.

But it also acknowledges that Snowden’s leaks have been important to raising concerns about civil liberties — resulting in President Obama’s decision to impose limits on the Section 215 phone dragnet.

Since 2004, when we issued the report, the public has become markedly more engaged in the debate over the balance between civil liberties and national security. In the mid-2000s, news reports about the National Security Agency’s surveillance programs caused only a slight public stir. That changed with last year’s leaks by Edward Snowden, an NSA contractor who stole 1.7 million pages of classified material. Documents taken by Snowden and given to the media revealed NSA data collection far more widespread than had been popularly understood. Some reports exaggerated the scale of the programs. While the government explained that the NSA’s programs were overseen by Congress and the courts, the scale of the data collection has alarmed the public.

[snip]

[I]n March, the President announced plans to replace the NSA telephone metadata program with a more limited program of specific court-approved searches of call records held by private carriers. This remains a matter of contention with some intelligence professionals, who expressed to us a fear that these restrictions might hinder U.S. counterterrorism efforts in urgent situations where speedy investigation is critical.

Having just raised the phone dragnet changes, the report goes on to argue “these programs” — which in context would include the phone dragnet — should be preserved.

We believe these programs are worth preserving, albeit with additional oversight. Every current or former senior official with whom we spoke told us that the terrorist and cyber threats to the United States are more dangerous today than they were a few years ago. And senior officials explained to us, in clear terms, what authorities they would need to address those threats. Their case is persuasive, and we encountered general agreement about what needs to be done.

Senior leaders must now make this case to the public. The President must lead the government in an ongoing effort to explain to the American people—in specific terms, not generalities—why these programs are critical to the nation’s security. If the American people hear what we have heard in recent months, about the urgent threat and the ways in which data collection is used to counter it, we believe that they will be supportive. If these programs are as important as we believe they are, it is worth making the effort to build a more solid foundation in public opinion to ensure their preservation.

This discussion directly introduces a bizarre rewriting of the original 9/11 Report.

Given how often the government has falsely claimed that we need the phone dragnet because it closes a gap that let Khalid al-Midhar escape you’d think the 9/11 Commission might use this moment to reiterate the record, which shows that the government had the information it needed to discover the hijacker was in the US.

Nope.

It does, however, raise a very closely related issue: the FBI’s failure to discover Nawaf al Hazmi’s identity. Continue reading

Tweet about this on TwitterShare on RedditShare on FacebookGoogle+Email to someone

Breaking: CIA Tortured Abu Zubaydah at a Prison in Poland

Earlier today, the European Court of Human Rights ordered Poland to pay Abu Zubaydah and Abd al Rahim al-Nashiri a combined total of 230,000 Euros for facilitating the torture suffered at Stare Kiejkuty.

The court found Poland violated its obligations under the European Convention on Human Rights to prevent torture, ensure the right to liberty, and properly investigate allegations a crime had been committed on its territory.

It ordered Poland to pay al-Nashiri 100,000 euros in damages and 130,000 euros to Zubaydah.

“The ruling of the tribunal in Strasbourg on CIA jails is embarrassing for Poland and is a burden both in terms of our country’s finances as well as its image,” said Joanna Trzaska-Wieczorek, a spokeswoman for the Polish president.

Of course, that Poland hosted one of CIA’s black sites is not breaking news at all. We’ve known it for years.

But this is an official judgment affirming that to be true. Finally, a court has called America’s torture torture.

The judgment comes as the CIA dawdles over declassifying the Senate Intelligence Committee’s torture report. One reason for the delay, prior reporting has said, comes from a desire to protect our foreign partners in crimes — notably the UK and Poland.

So now that Poland’s role has been confirmed, can we please get the torture report?

Tweet about this on TwitterShare on RedditShare on FacebookGoogle+Email to someone

As Debunking Continues, Congress Pushes for US Contractors to Profit Off Iron Dome

Schematic of Iron Dome missile defense system. (Wikimedia Commons image, rotated 180 degrees)

Schematic of Iron Dome defense system. (Wikimedia Commons image, rotated 180 degrees)

Back in April, I wrote about the horrible success rate of Israel’s Iron Dome defense system and the outrageous sums of money that the US has poured into it. With more rockets now being fired fired from Gaza and Israel responding by massacring Palestinians who have no escape, the Iron Dome system is getting renewed attention. And as with much in the Israel-Palestine situation, there is the propaganda we see in much of the main press and then there is the stark reality behind it that is vastly different.

Writing in The Atlantic, James Fallows noted a week and a half ago how the Washington Post had swallowed the propaganda completely, putting up the headline ‘Israel’s “Dome’ changes the fight” and provided a snippet of the Post’s praise:

To Israeli security officials, the success of Iron Dome is akin to that of the separation barrier between Israel and the West Bank, which they say helped bring an end to an onslaught of suicide bombings in the early 2000s.

The Iron Dome system has rendered rockets so ineffective that Hamas and its allies have, in recent days, been attempting more-creative ways of attacking Israel.

To debunk this baseless propaganda, Fallows relied heavily on an article by John Mecklin in the Bulletin of the Atomic Scientists. Mecklin pulls no punches, titling his piece “Iron Dome: the public relations weapon”. Unlike the Post’s propaganda, Mecklin backs up his piece with evidence, experts and explanations that ring true to common sense:

With the latest rounds of rocket fire from Hamas fighters in the Gaza strip, Israel’s missile defense system, known as Iron Dome, is getting a lot of press again, much of it positive. As with much reporting on missile defense, however, the Iron Dome coverage has lacked context and misconstrued reality.

/snip/

Ted Postol, an MIT-based missile defense expert and frequent Bulletin contributor, provided a dose of context to the Iron Dome coverage in a National Public Radio interview Wednesday. “We can tell, for sure, from video images and even photographs that the Iron Dome system is not working very well at all,” Postol said. “It—my guess is maybe [it hits a targeted missile] 5 percent of the time—could be even lower. … And when you look—what you can do in the daytime—you can see the smoky contrail of each Iron Dome interceptor, and you can see the Iron Domes trying to intercept the artillery rockets side on and from behind. In those geometries, the Iron Dome has no chance, for all practical purposes, of destroying the artillery rocket.”

For Iron Dome interceptors to work properly, they have to hit the incoming rockets head-on. See this description for Bloomberg from Richard Lloyd, who often collaborates with Postol: Continue reading

Tweet about this on TwitterShare on RedditShare on FacebookGoogle+Email to someone

You’re Doing Counter-Propaganda Wrong, Hand-Picked Journos Edition

I’ve been so buried in Netroots Nation and related issues I’ve only followed the top-line coverage of the MH17 shoot-down. I think the version the Administration released yesterday — that Ukrainian rebels shot down the airliner by mistake — is the most plausible explanation, though I’m aware of questions about that story.

All that said, there’s something about yesterday’s dog-and-pony show offered at the Office of Director of National Intelligence that seriously discredits the US story.

As the WSJ account of it makes clear, the reporters brought in for that dog-and-pony were explicitly told the dog-and-pony was being held to “not let[] a Russian narrative get out there.”

The Russian government is making a “full-court press” to spread a Russian version of events that try to pin the shoot-down on the Ukrainians, which is “not plausible to us,” one senior intelligence official said.

A key goal of Tuesday’s presentation, said one senior intelligence official was “not letting a Russian narrative get out there,” said one senior U.S. intelligence official.

(Apparently this senior intelligence official is not honest enough to admit both sides are already in a game of full court pressing – and John Kerry has already gotten beyond what the government released yesterday.)

Here’s the thing. While the Russians have not offered as much proprietary intelligence as the US offered yesterday, the presentation this dog-and-pony show is meant to rebut involve their Ministry of Defense providing a televised briefing on their questions about the event.

By contrast, noted liar James Clapper’s office invited hand-picked journalists in, and swore them to silence about who actually gave the briefing, and only afterwards released a transcript and other materials on the briefing. Spencer Ackerman was among the obvious journalists who should have been but was not invited.

Some of the evidence provided by US intelligence – whose fiscal 2013 budget was $68bn – included Facebook posts. “After it became evident that the plane was a civilian airliner, separatists deleted social media posts boasting about shooting down a plane and possessing a Buk (SA-11) surface-to-air missile system,” a senior intelligence official said in the briefing, held on condition of anonymity. The Guardian was not invited to the briefing, a transcription of which was later made available.

Look, if the US government has a case, they can release it publicly. But what they appear to be doing instead is creating their own official press corps and presenting their case there.

That’s especially true given that something else said at the briefing undermines the US case against the rebels.

They noted that it can be difficult to track the transportation of weapons because they are often moved at night, and the Russians have provided the separatists with types of weapons that the Ukrainians also have in order to maintain “plausible deniability.”

If the Russians have gone to some length to hide their role in arming rebels, why would they also give them a weapon that would draw so much attention (the Ukrainian government has them as well, but they haven’t used them)? (Though I actually think the point is they have been fired, but weren’t considered so fancy until they took down a civilian jet.)

I suspect at this point both sides are hiding interesting details they know. But the US has the more plausible case, thus far. So why are they unwilling to present their case publicly?

Tweet about this on TwitterShare on RedditShare on FacebookGoogle+Email to someone

David Medine’s PCLOB Defense

Today, David Medine attempts to answer (most) of the questions Jennifer Granick argues weren’t answered in the Privacy and Civil Liberties Oversight Board’s report on Section 702. Here’s my summary of how he does so:

Screen shot 2014-07-22 at 9.15.15 AM

Even while Medine “challenges” Granick’s assessment that her questions weren’t answered, he admits “Professor Granick may not find that all of her questions have been fully answered.”

And that’s clear from my summary: for classification reasons, PCLOB didn’t answer the questions about volume of US person communications collected (question 1) or the kinds of selectors used (question 5), and only hinted at an answer to whether NSA had direct access to providers’ networks (question 2). As I’ve suggested, even with the 100 new pieces of data PCLOB got declassified, their subjection to obviously bogus government classification claims discredits their report.

The most useful response Medine provides Granick — though not for what it says about the underlying question – is to inform us that buddy lists and a bunch of other things are treated as communications.


  1. “Do intelligence agencies minimize address books, buddy lists, stored documents, system backups and/or other electronic transmissions where there is no human being on the received end of the transmission as “communications” under the minimization procedures? Or are those fair game?”

The report answers this question directly: “Everything that is collected under Section 702 is treated as a ‘communication’ and therefore is protected by the applicable minimization procedures.” PCLOB report at p. 127 n. 524. As explained elsewhere in the report, the statute itself “requires that all acquired data be subject to minimization procedures.” PCLOB report at p. 50 (emphasis added).

In a sense, Granick’s original question was overtaken by events when it was confirmed – both in the WaPo’s analysis of 702 collected data and in PCLOB — that minimization doesn’t work as mandated by law (though PCLOB seems relatively untroubled by that). Sure, US person names in an address book will be masked, but they won’t be destroyed because they have no foreign intelligence value. So even US person names in buddy lists will be available for analysis.

But Medine’s answer — emphasizing that “everything .. is treated as ‘communication’” — is important for his answer regarding what the government uses for upstream selectors. Continue reading

Tweet about this on TwitterShare on RedditShare on FacebookGoogle+Email to someone

Kabul Suicide Attack Kills Foreign Guards in Buffer Between Afghans and Americans

On the surface, today’s suicide attack in Kabul looks like many others, but some details disclosed in the New York Times story on the attack illustrate the lengths to which the US has been forced to go to protect against green on blue attacks in which Afghans kill Americans. The attack took place at Camp Gibson. Those killed were described by the Times as guarding buildings occupied by trainers from Dyncorp at a facility dedicated to counternarcotics operations. Three guards who were killed were from Nepal and one was from Peru, according to the Times.  The Washington Post says two were Nepalese, one was Filipino and one was of unknown nationality. The Times explains why there are both Afghan and foreign guards:

Security guards from countries like Nepal and Peru are common at foreign military and diplomatic compounds in Afghanistan. The guards, many of whom are Nepalese veterans of the British Army’s Gurkha regiments, usually provide a layer of security behind the Afghan police and security guards, who man the first line of checkpoints.

The setup is used because of deep concerns about the efficacy and loyalty of the police, a force that is riddled with corruption and drug use. It also provides a final layer of defense should Afghan guards turn on the foreigners they are guarding.

So the outside layer of security consists of Afghan personnel, but the US must use a ring of foreign security personnel to protect against the Afghans turning their weapons on the US personnel they are “guarding”. And it appears that the Afghan who carried out this attack had some help among his fellows in that outside ring of security. The attacker was Afghan, but the uniform he wore matched those of the foreign guards rather than Afghans:

An official from the NATO-led military coalition said there were suspicions that the attacker had inside help. An Afghan in a uniform worn by foreign guards would “strike me as more suspicious, not less, right?” said the official, who spoke on the condition of anonymity to avoid antagonizing his Afghan counterparts.

The Times article points out that previous attacks aimed at US personnel have killed only foreign guards, so this layered security situation likely has been described before, but I didn’t have a full appreciation of how and why it is set up in this way until today.

An interesting detail offered by ToloNews is that the attacker was not new to the facility:

On condition of anonymity a security official said that the suicide bomber was an Afghan security guard working alongside foreign contractors.

“The suicide bomber was an Afghan security guard working alongside foreigners at the anti-narcotics office for many years,” said the security official.

It would be interesting to know whether the attacker had planned all along to carry out such an attack or if he only recently decided to switch sides.

Meanwhile, the “auditing” of ballots from the runoff is proceeding much more slowly than the target rate, so look for more delays before a “final” vote count is released.

Tweet about this on TwitterShare on RedditShare on FacebookGoogle+Email to someone
1 2 3 935

Emptywheel Twitterverse

JimWhiteGNV RT @SuzanneTwoTon: Wyden Ponders Release of CIA Torture Report Without White House Consent http://t.co/tw1e4OO2SC via @rollcall
1mreplyretweetfavorite
bmaz RT @emptywheel: @bmaz W/Cuomo's corruption scandal, she's got a great campaign issue. So...
41mreplyretweetfavorite
emptywheel @bmaz W/Cuomo's corruption scandal, she's got a great campaign issue. So...
43mreplyretweetfavorite
bmaz Cuomo now challenging Teachout's residency http://t.co/IfiOLamKU6 So Andrew Cuomo is pretty chickenshit. Who could of guessed?
43mreplyretweetfavorite
emptywheel @csoghoian They're "Former CIA Director Socks." Surely they have some kind of James Bond surveillance function?
44mreplyretweetfavorite
emptywheel .@lhfang catches the FISA judges stocking up on Verizon stock. http://t.co/s9OZIL6oY6 Interesting.
47mreplyretweetfavorite
emptywheel RT @JasonLeopold: Nearly 2 yrs after Gitmo detainee Adnan Latif died (reportedly suicide), NCIS still not finished w/their probe. FOIA http…
49mreplyretweetfavorite
emptywheel @sarahjeong Falling like a rock even BEFORE you ace the Bar. Toldya.
49mreplyretweetfavorite
emptywheel @MikeScarcella Always knew I hated that guy.
53mreplyretweetfavorite
bmaz RT @ShitSquare: @johnson_carrie @emptywheel @joshgerstein Hi there, how y'all doing today? Just thought I'd drop by since you were talking …
2hreplyretweetfavorite
bmaz @Mansfield2016 I never had a problem w/the legitimacy of the Halbig suit; don't think it should prevail, but there was a basis for the arg
2hreplyretweetfavorite
July 2014
S M T W T F S
« Jun    
 12345
6789101112
13141516171819
20212223242526
2728293031