DOD Complains about “Speculative” Risk of Bulk Collection

Maybe I have a sick sense of humor.

But I laughed at the irony of this NYT story about how Edward Snowden used a web-crawler to scrape data from the NSA’s servers.

In paragraphs 28 and 29 (of 29), Defense Intelligence Agency head Michael Flynn admits what he has avoided admitting in public hearings: he has no fucking clue what Snowden took.

The head of the Defense Intelligence Agency, Lt. Gen. Michael T. Flynn, told lawmakers last week that Mr. Snowden’s disclosures could tip off adversaries to American military tactics and operations, and force the Pentagon to spend vast sums to safeguard against that. But he admitted a great deal of uncertainty about what Mr. Snowden possessed.

“Everything that he touched, we assume that he took,” said General Flynn, including details of how the military tracks terrorists, of enemies’ vulnerabilities and of American defenses against improvised explosive devices. He added, “We assume the worst case.”

DOD doesn’t actually know what Snowden took. They know he had access to a bunch of files on military operations.

But that leaves open the question of how Mr. Snowden chose the search terms to obtain his trove of documents, and why, according to James R. Clapper Jr., the director of national intelligence, they yielded a disproportionately large number of documents detailing American military movements, preparations and abilities around the world.

But DOD doesn’t know whether he just touched them, or took them with him. It doesn’t know whether he deleted any he took before turning them over to journalists.

For his part, Snowden says DOD’s claims he deliberately took military information are unfounded.

In his statement, Mr. Snowden denied any deliberate effort to gain access to any military information. “They rely on a baseless premise, which is that I was after military information,” Mr. Snowden said.

Snowden suggests any military information he got, he got incidentally. DOD will just have to trust him.

Nevertheless, DOD will assume the worst because that’s the only way to protect DOD equities — and indeed, the lives of our military service members (that is, if Flynn’s claims are true; given his track record I don’t necessarily believe they are).

The necessity of protecting people and secret plans because of a potential risk is actually not funny at all. Indeed, it points to the problem inherent with bulk collection conducted in secret: Those potentially targeted by it have to assume the worst to protect themselves.

Mind you, if Sam Alito were a fair and balanced kind of guy, he’d tell DOD to suck it up. The risk of this bulk collection inflicting harm on military operations is speculative.

Respondents’ claim of future injury is too speculative to establish the well-established requirement that certain injury must be “certainly impending.”

But I think Alito is wrong. I definitely don’t fault DOD for adjusting to potential risks given the lack of certainty over which of their most sensitive secrets bulk collection has compromised.

If it is a problem that Snowden touched or maybe even incidentally collected data that could cause DOD great harm — if it is understandable that DOD would assume and prepare for the worst — then NSA needs to shut down its own indiscriminate scraping of data from all over the world. Because it is imposing the same kinds of risk and costs and worries to private individuals all over the world.

Update: Eli Lake got sources who received DIA’s briefing on their Snowden report to distinguish between what DIA knows and what they’re just assuming.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

14 replies
  1. What Constitution? says:

    I guess we should just remind the US government that they probably shouldn’t be putting information into electronic channels of transmission, that by doing so the US government is knowingly waiving any claim of confidentiality or secrecy because, well, the US government and its contractors (and, ipso facto, certainly others) have the capability to pierce such systems …. and that perhaps the US government should simply shut up because, after all, if the US government has nothing to hide, it has nothing to fear. It’s all just MadLibs, after all.

  2. Web Crawlers says:

    Why are specific Search Terms needed?

    You just give it a url and then the web crawler spiders out from there.

  3. orionATL says:

    this business of military brass and civilian leaders screaming about “endangering the troops” is just another one of a group of verbal cons used to attack whistleblowers who may reveal exactly what the military is up to.

    in short, it is just a cousin of the very, very often “this will harm national security” or “if we don’t do this national security will be harmed”.

    just keep this in mind,

    we invaded and occupied iraq without justification,

    got our soldiers killed,

    killed hundreds of thousands of iraqui civilians and soldiers,

    all on a PRESIDENTIAL CLAIM OF NATIONAL SECURITY NEED re

    WEAPONS OF MASS DESTRUCTION,

    a presidential claim that was a blatant, manufactured lie.

    no pentagon, presidential, or congressional claim of national security need should ever be accepted at face value.

    such claims should be thoroughly evaluated, and evidence convincing beyond reasonable doubt should be available and acceptable to all political parties.

    counter-intuitively perhaps, it should never be the imaginatively described consequences (of, e.g., wmd’s in a dictator’s hands) of a putative threat to national securitg that drives action,

    but the preponderance of evidence i mentioned above.

    two other points:

    – american soldiers are highly trained, paid professionals. danger is their duty.

    – the best way to keep soldiers safe is not to send them into battle. it was not bradley manning who was responsible for us deaths in iraq, but bush, cheney, rumsfeld and his neo-con cabal.

    talking imaginatively and literarily about snowden being potentially responsible for soldier deaths is contemptible because it is an exploitation of soldiers by political and military leaders who don’t give a rat’s ass about those soldiers’ living or dying, but are happy to cynically use their well-being to score points with a good-hearted but foolish public against a whistleblower who may reveal embarrassing conduct of those officials.

  4. orionATL says:

    “..DOD doesn’t actually know what Snowden took. They know he had access to a bunch of files on military operations…”

    and from there the very imaginative general michael flynn decided to use his imagination to invent a story-line to incite against snowden – no doubt as part of the ever-being-refined attempt to divert attention away fron nsa theft of private information to the man who revealed to us the extent and lawlessness of that theft.

    – first thig to remember is these guys lie – about anything and everything. maybe snowden “touched” dod operational docs, maybe not. whose word must we trust here?

    – second, and most delicious, maybe snowden “touched” dod docs for the same reason manning could walk away with military and diplomatic docs by the thousands – because dod has very poor computer security.

  5. ess emm says:

    Snowden suggests any military information he got, he got incidentally. DOD will just have to trust him.

    LOL. Love irony.

    Maybe he followed minimization procedures before he gave them to Poitras, et. al. Or he could have followed the NSA-Israel template, where he had a non-enforceable agreement that Poitras would minimize the data.

  6. JoeP says:

    Mass-surveillance/unConstitutional-bulk-collection℠ – when turned on its head by Edward Snowden, and massaged by capable professionals such as Poitras, Greenwald and Wheeler, it’s the Gift-that-Keeps-on-Giving™!!

  7. Michael Murry says:

    Chapter 15: The Future of Revolutionary War

    “Why is it that we must use top-notch elite forces, the cream of the crop of American, British, French, or Australian commando and special warfare schools; armed with the very best that advanced technology can provide; to defeat the Viet-Minh, Algerians, or Malay “CT’s” [Chinese Terrorists], almost none of whom can lay claim to similar expert training and only in the rarest of cases to equality in fire power?

    The answer is very simple: It takes all the technical proficiency our system can provide to make up for the woeful lack of popular support and political savvy of most of the regimes that the West has thus far sought to prop up. The Americans who are now fighting in South Vietnam have come to appreciate this fact out of first-hand experience.”

    Bernard Fall, Street Without Joy: the French Debacle in Indochina (Harrisburg, PA: Stackpole Books, 1961)

    I seem to recall the military historian Martin Van Crevald saying — years ago — something to the effect that “the only thing the Americans can train the Iraqis to do is how to kill Americans. How stupid can they be?” Nobody reveals American military operations, weaponry, and tactics to America’s adversaries better than the American military does by simply doing what they do and “training” foreigners in how to do it, too. What a spectacular, if tragically ironic, farce.

    As in China, Vietnam, Iraq, Afghanistan, and other foreign countries dealing with indigenous political insurrections against corrupt governments supported by the United States, the U.S. military regularly squanders vast sums of money and materiel “training” supposedly loyal foreign government forces only to have these unmotivated conscripts or infiltrators return to their insurrectionist associates even better informed of how the American military does things — i.e., badly.

    If the United States military truly desires for America’s adversaries not to know what the American military intends to do in any given situation, then the American military should cease training these adversaries and giving them priceless on-the-job experience in killing American soldiers. Edward Snowden has not spent the last twelve years leaking military “secrets” year after year to people the U.S. military considers adversaries — namely, the American people who alone can cut their funding. On the contrary, the U.S. military has annually given away for nothing what any barely armed peasant or goat herder needs so know about how to give the American military another humiliating defeat in a country where it doesn’t belong and has no useful purpose.

    Way past time to stop swallowing pathetic excuses and scapegoating of journalists by the U.S. military. Way past time for a serious Reduction In Force. The United States does not need and cannot afford such spectacularly wasteful losers.

  8. orionATL says:

    @Michael Murry:

    thanks for your insightful comment.

    i found this especially relevant to today’s events:

    “… i seem to recall the military historian Martin Van Crevald saying — years ago — something to the effect that “the only thing the Americans can train the Iraqis to do is how to kill Americans. How stupid can they be?” Nobody reveals American military operations, weaponry, and tactics to America’s adversaries better than the American military does by simply doing what they do and “training” foreigners in how to do it, too. What a spectacular, if tragically ironic, farce…”

    and that is just how things go down – soldiers as well.

    somewhat related, i recall reading that a team of american military went to russia to consult with the russians on afghanistan topography and caves – in the very, very early days of our afghan misadventure .

    at the end of the consultation, the russian comander said, roughly:

    “you guys are in for one hell of a fight; i feel sorry for you.”

    and so it came to pass,

    and we are leaving dragging our ass.

    as is well known, we trained afghans to fight the russians. over twenty years later, some of those so trained used that training against our soldiers in afghaistan.

  9. Michael Murry says:

    Sometimes the mind boggles at the complete and utter bullshit uttered by U.S. presidents after yet another monumental pooch-screwing involving the U.S. military:

    “George W. Bush has admitted the US failed to plan for a speedy victory in Iraq, describing the sudden collapse of Saddam Hussein’s regime as a “catastrophic success.” — the Australian, August 30, 2004

    Yet one seldom reads of the American press quoting cautionary wisdom from acknowledged sages that would easily — and in common-sense language — explode the bullshit balloons right in the faces of those civilian and military madmen who continually inflate and float them at us in lieu of actually accomplishing something of importance to the nation:

    “There is a theory which has not yet been accurately formulated or given a name, but which is very widely accepted and is brought forward whenever it is necessary to justify some action which conflicts with the sense of decency of the average human being. It might be called, until some better name is found, the Theory of Catastrophic Gradualism…. The formula usually employed is ‘You can’t make an omelet without breaking eggs.’ And if one replies, ‘Yes, but where is the omelet?’ the answer is likely to be: ‘Oh, well, you can’t expect everything to happen all in a moment.'” — George Orwell, “Catastrophic Gradualism” (1946)

    Hence, this Vietnam veteran’s take on yet another ignominious imperial retreat — this time from Afghanistan:

    Another Catastrophic Success

    With their tails tucked proudly ‘tween their legs
    Advancing towards the exit march the dregs
    Of empire, whose retreat this question begs:
    No promised omelet, just the broken eggs?

    Michael Murry, “The Misfortune Teller,” Copyright 2011

  10. Michael Murry says:

    I’ve got this to say to the U.S. Department of War (DOW) and their endless demands for “more” while offering only excuses for doing nothing of value and much else of harm:

    “If you could have, you would have; but you didn’t, so you can’t.”

    Best to keep things simple when dealing with the military “mind.”

  11. Mindrayge says:

    “But that leaves open the question of how Mr. Snowden chose the search terms to obtain his trove of documents, and why,”

    Ugh. Forget about the why. But that sentence right there is someone trying to sell readers somethings. It implies via “search terms” the notion of Snowden simply “googling” for things. Doesn’t work that way. Not if he didn’t want to get caught. Everything in NSA is “need to know”. Even if we could accept the government claim that Snowden used the logon credentials of others Snowden would still have to be aware of that particular user’s “need to know” constraints so that he wouldn’t trip any of the network monitors. Further, in order to not trip the network monitors he would have to choose users that were in Hawaii and on duty at the same time that he was doing the “search”. If the physical security systems didn’t get the security card swipes to access the building or the particular room the systems wouldn’t even let the logon occur. It wouldn’t surprise me if the Hawaii NSA site was using the Raytheon system that follows people around in the building that can blank out computer monitors if that person wouldn’t be cleared to see what might be on that screen and it can alert security if someone is anywhere they shouldn’t be.

    The real tell however is the use of the word “trove” which is short for “treasure trove”. That is not a word or phrase anybody uses in regular conversation. Any time you see it in an article about anything it is meant to convey something extremely valuable to fantastical that almost never turns out to be as valuable or fantastical. It is a marketing term.

  12. Thingumbob (@Thingumbobesq) says:

    What is the biggest secret the NSA has concealed from the American people? That the obscurantist Saudi Royal family funded the 9/11 hijackers. And they still fund al-Qaeda and it’s many offshoots, but we can’t say anything because they have us over the proverbial barrel…

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