Ron Wyden and Mark Udall have an amendment to the PATRIOT Act that makes it clear the Obama Administration briefed the Intelligence Committees in February on an intelligence collection program, conducted under PATRIOT authority, that interprets the language of the law so broadly as to mean something it really doesn’t say. The amendment reads, in part,

(6) United States Government officials should not secretly reinterpret public laws and statutes in a manner that is inconsistent with the public’s understanding of these laws, and should not describe the execution of these laws in a way that misinforms or misleads the public;

(7) On February 2, 2011, the congressional intelligence committees received a secret report from the Attorney General and the Director of National Intelligence that has been publicly described as pertaining to intelligence collection authorities that are subject to expiration under section 224 of the USA PATRIOT Act (Public Law 107–56; 115 Stat. 295); and

(8) while it is entirely appropriate for particular intelligence collection techniques to be kept secret, the laws that authorize such techniques, and the United States Government’s official interpretation of these laws, should not be kept secret but should instead be transparent to the public, so that these laws can be the subject of informed public debate and consideration.

(b) REPORT.—Not later than 60 days after the date of the enactment of this Act, the Attorney General shall publish in the Federal Register a report—

(1) that details the legal basis for the intelligence collection activities described in the February 2, 2011, report to the congressional intelligence committees; and

(2) that does not describe specific intelligence collection programs or activities, but that fully describes the legal interpretations and analysis necessary to understand the United States Government’s official interpretation of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).

In short, Eric Holder and James Clapper came to SSCI on February 2 and told the committee about a way the government was broadly interpreting FISA and the powers expiring next Monday.

This Amendment would require Holder to admit to what the government was doing, in broad terms, without revealing what kind of surveillance was going on.

This probably pertains to the Section 215 authorities; we know they’re using it to construct databases of people who buy hydrogen peroxide and acetone. But I would bet there’s a more generalized collection program that results in more databases they can mine. A very good guess would be using geolocation data from cell phones to collect information on the whereabouts of Americans.

Don’t you think the time to press for such admissions is before this shit gets re-upped for another four years?

Update: Apparently this isn’t even among the amendments Reid is pulling parliamentary maneuvers to avoid even discussing. So I guess this is just an effort to wave a flag saying, “PATRIOT isn’t what it says it is?”

I sort of get the feeling that the entire legislative effort on cyberwar is going on in a classified annex.

Nevertheless, even from what we can see, we’ve got a dispute. As I noted a few weeks back, The House Armed Services Committee included a provision that explicitly granted DOD the power to conduct clandestine cyberwar activities in some situations, but required quarterly briefing on such activities.

SEC. 962. MILITARY ACTIVITIES IN CYBERSPACE.

(a) AFFIRMATION.—Congress affirms that the Secretary of Defense is authorized to conduct military activities in cyberspace.

(b) AUTHORITY DESCRIBED.—The authority referred to in subsection (a) includes the authority to carry out a clandestine operation in cyberspace—

(1) in support of a military operation pursuant to the Authorization for Use of Military Force (50 U.S.C. 1541 note; Public Law 107–40) against a target located outside of the United States; or

(2) to defend against a cyber attack against an asset of the Department of Defense.

(c) BRIEFINGS ON ACTIVITIES.—Not later than 120 days after the date of the enactment of this Act, and quarterly thereafter, the Secretary of Defense shall provide a briefing to the Committees on Armed Services of the House of Representatives and the Senate on covered military cyberspace activities that the Department of Defense carried out during the preceding quarter.

(d) RULE OF CONSTRUCTION.—Nothing in this section shall be construed to limit the authority of the Secretary of Defense to conduct military activities in cyberspace.

That seemed to be a response to earlier claims by DOD that it didn’t have to brief such things to Congress.

As it happens, that’s another of the sections of the Defense Authorization to which the Administration objects (though they did not issue a veto threat on it).

Military Activities in Cyberspace: The Administration agrees that appropriate military operations in cyberspace are a vital component of national security, but objects to Section 962. The Administration has concerns about this provision and wants to work with Congress to ensure that any such legislation adds clarity and value to our efforts in cyberspace.

The choice by administrations to conduct cyberwar under DOD’s auspices rather than CIA’s as a way to avoid oversight is something that John Rizzo (!) warned about. And the bill has already given the Administration an extra three months of secret cyberwar before it has to start briefing Congress compared to the original bill.

What kind of war is Obama waging in cyberspace it refuses to tell Congress about?

The Administration just issued its official position on the House Armed Services Committee Defense Authorization bill. In it, Obama issues veto threats on several issues, including an extra engine for the Joint Strike Fighter and limits on START nuclear reductions (but not, it must be said, on any delay of DADT repeal, though he did oppose efforts to delay repeal).

Most interesting, though, is the veto threat on the forever war (see Ben Wittes for a good summary of most of these sections):

Detainee Matters:  The Administration strongly objects to section 1034 which, in purporting to affirm the conflict, would effectively recharacterize its scope and would risk creating confusion regarding applicable standards.  At a minimum, this is an issue that merits more extensive consideration before possible inclusion.  The Administration strongly objects to the provisions that limit the use of authorized funds to transfer detainees and otherwise restrict detainee transfers and to the provisions that would legislate Executive branch processes for periodic review of detainee status and regarding prosecution of detainees.  Although the Administration opposes the release of detainees within the United States, Section 1039 is a dangerous and unprecedented challenge to critical Executive branch authority to determine when and where to prosecute detainees, based on the facts and the circumstances of each case and our national security interests.  It unnecessarily constrains our Nation’s counterterrorism efforts and would undermine our national security, particularly where our Federal courts are the best – or even the only – option for incapacitating dangerous terrorists.  For decades, presidents of both political parties – including Presidents Ronald Reagan, George H.W. Bush, Bill Clinton, and George W. Bush – have leveraged the flexibility and strength of our Federal courts to incapacitate dangerous terrorists and gather critical intelligence.  The prosecution of terrorists in Federal court is an essential element of our counterterrorism efforts – a powerful tool that must remain an available option.  The certification requirement in section 1040, restricting transfers to foreign countries, interferes with the authority of the Executive branch to make important foreign policy and national security determinations regarding whether and under what circumstances such transfers should occur.  The Administration must have the ability to act swiftly and to have broad flexibility in conducting its negotiations with foreign countries.  Section 1036 undermines the system of periodic review established by the President’s March 7, 2011, Executive Order by substituting a rigid system of review that could limit the advice and expertise of critical intelligence and law enforcement professionals, undermining the Executive branch’s ability to ensure that these decisions are informed by all available information and protect the full spectrum of our national security interests.  It also unnecessarily interferes with DoD’s ability to manage detention operations.  Section 1042 is problematic and unnecessary, as there already is robust coordination between the Department of Justice, the Department of Defense, and the Intelligence Community on terrorism-related cases, and this provision would undermine, rather than enhance, this coordination by requiring institutions to assume unfamiliar roles and could cause delays in taking into custody individuals who pose imminent threats to the nation’s safety.  If the final bill presented to the President includes these provisions that challenge critical Executive branch authority, the President’s senior advisors would recommend a veto.

While I would have preferred a full-throated rejection of the forever war, this is a neat approach that, given realistic assumptions of what we can expect from Obama, pushes back in an interesting fashion.

What the Administration has done is list five different provisions:

• 1034: redefining the AUMF to be a forever war (and also giving the President the power to detain people in the forever war)
• 1039: barring the use of funds for civil trials
• 1040: imposing certification requirements on the Secretary of Defense to transfer detainees
• 1036: codifying an indefinite detention system, with fewer detainee rights than Obama’s own EO calls for
• 1042: requiring the Attorney General ask permission from the DNI and Secretary of Defense before prosecuting “terrorist offenses” in civilian courts

And then said, generally, if “these provisions that challenge critical Executive branch authority” remain in the bill, his advisors would recommend a veto.

Of course, on its face, the forever war section doesn’t “challenge critical Executive branch authority,” unless you argue that by granting the President the ability to constantly redefine this war, you’re infringing on his authority to do so without a grant of such authority from Congress. That’s not how I understand the Constitution, but you can never be too sure anymore about the people who run our war machines.

Nevertheless, Obama is including that with a bunch of other restrictions (some of which passed in similar form on other laws, to which he responded with a non-signing statement signing statement, and some of which are new), so as to be able to say his opposition is grounded in separation of power concerns rather than the judgment that Congress shouldn’t mandate a forever war the President hasn’t asked for.

Again, I’d rather have a loud denunciation of the forever war. I’d rather have a clear argument about how we will start moving away from a war footing in our opposition to terrorism.

But I’m not going to get that, so I’ll take this graceful veto threat instead.

We’re on our second near-record tornado this year and summer hasn’t even started. Joplin, MO and Birmingham, AL have been especially hard hit, but much of flyover country is set to spend the summer hunkering down to hide from truly horrifying weather.

Yet Eric Cantor wants to hold disaster relief hostage to debt hysteria. (h/t Steve Benen)

The No. 2 House Republican said that if Congress doles out additional money to assist in the aftermath of natural disasters across the country, the spending may need to be offset.

House Majority Leader Eric Cantor (R-Va.) said “if there is support for a supplemental, it would be accompanied by support for having pay-fors to that supplemental.”

The stance is all the more heartless given that most rational people believe there’s a tie between the increasingly volatile weather and climate change. That is, it’s not just that Eric Cantor wants to deprive fly-over country of any government assistance in the face of freak natural disaster, he’s demanding that communities suffering the consequences of climate change also pay the bill to clean up after climate change-caused disaster. He’s asking already-devastated communities to pay for our collective addiction to oil (and coal).

One obvious solution might be to impose a carbon tax at least big enough to pay for such disasters, which are likely to become more and more common.

But these same Republicans that want Joplin to pay the price of getting flattened by tornadoes are also heading in the wrong direction. They want debt reduction, they claim. But they also refuse to cut subsidies to the same carbon industry contributing so much to climate change.

We have enough money, apparently, to keep paying off the most profitable corporations in the world. But not enough to help our neighbors who pay the physical, emotional, and economic price for those corporations’ profits.

The DNC and Midwestern state Democratic Parties are rolling out an extravaganza today, using the occasion of Chrysler paying back some of its federal loans to mock GOP presidential candidates for opposing the auto bailout.

The DNC had a press conference with Jennifer Granholm, Ted Strickland, and Bob King to mock people like Mitt, T-Paw, Gingrich, and Huntsman. “Many of these naysayers now want to be President,” Strickland said.

MI posted a release (though apparently didn’t care enough send it to members):

Chrysler is reportedly set to announce that it will repay $5.9 billion in loans to the U.S. government and American taxpayers. Chrysler’s good news comes on the heels of a report that Chrysler made its first quarterly profit since emerging from structured bankruptcy reorganization.  Chrysler posted a 22.5% increase of sales in April compared to the same month last year and first quarter net income of $116 million, marking a remarkable turnaround for Chrysler and the domestic auto industry.“This is a great sign for Chrysler communities across the state and another positive sign of the recovery of manufacturing here in Michigan,” said Michigan Democratic Party Chair Mark Brewer. “Though it was unpopular in many parts of the country, President Obama and Democrats did what was needed to save the more than 1.4 million jobs that the American auto industry supports. If the President hadn’t acted to prevent Chrysler and GM from shutting their doors permanently, the entire state could have seen further economic disaster.”

After receiving loan packages and emerging from structured bankruptcy reorganization, Chrysler and General Motors are both hiring again and operating at a profit. Right here in Michigan, more than 12,100 manufacturing and auto dealer jobs have been created in the last year.

IN posted a release and sent it to DFH journalists from adjoining states:

In response to today’s news that Chrysler has repaid $5.9 billion in loans to the U.S. government and American taxpayers, Indiana Democratic Party Chair lauded President Obama for his strong economic leadership and success taking action to prevent the collapse of America’s domestic auto industry.Parker also said Indiana Republicans who voted against or publicly opposed Obama’s auto plan now find themselves on the wrong side of history.

“Indiana’s auto industry was hard hit by the recent economic crisis, and this is a great sign both for Chrysler and Hoosier workers,” Parker said. “President Obama’s plan wasn’t popular in many parts of the country, but Democrats did what was necessary to save the more than 1.4 million jobs that the American auto industry supports. Without that kind of strong leadership, many of our communities would have suffered economic disaster.”

Chrysler’s good news comes on the heels of a report that the company made its first quarterly profit since emerging from structured bankruptcy reorganization. Chrysler posted a 22.5% increase of sales in April compared to the same month last year and first quarter net income of $116 million, marking a remarkable turnaround for Chrysler and the domestic auto industry.

After receiving loan packages and emerging from structured bankruptcy reorganization, Chrysler and General Motors are both hiring again and operating at a profit.

Parker noted that Indiana Gov. Mitch Daniels and U.S. Rep Mike Pence, who is seeking the Republican gubernatorial nomination, both opposed the President’s auto plan.

(I haven’t seen one from OH yet, but they sent this wonderfully catty release earlier this month.)

Update: Here’s Obama’s statement (which lacks any “I told you sos”):

Chrysler’s repayment of its outstanding loans to the U.S. Treasury and American taxpayers marks a significant milestone for the turnaround of Chrysler and the countless communities and families who rely on the American auto industry. This announcement comes six years ahead of schedule and just two years after emerging from bankruptcy, allowing Chrysler to build on its progress and continue to grow as the economy recovers. Supporting the American auto industry required making some tough decisions, but I was not willing to walk away from the workers at Chrysler and the communities that rely on this iconic American company. I said if Chrysler and all its stakeholders were willing to take the difficult steps necessary to become more competitive, America would stand by them, and we did. While there is more work to be done, we are starting to see stronger sales, additional shifts at plants and signs of strength in the auto industry and our economy, a true testament to the resolve and determination of American workers across the nation.

But there’s something missing, perhaps because the DNC is too focused on national races and doesn’t appear to know much about the local industry. The DNC is focused on the GM and Chrysler headlines, not so much the suppliers, where the bulk of the jobs are. More importantly, the Democrats as a whole don’t seem to be cataloging the many examples where down-ticket Republicans are claiming credit for government investments in new technology that are just now paying off in jobs.

The problem is particularly acute here in W MI, home of some of the GOP’s biggest evangelists claiming business simply needs government to get out of the way. But it’s also home to a good number of factories–including, increasingly, clean energy factories supported by Granholm credits and federal stimulus dollars–that rely on government funding.

As Wizardkitten ranted wonderfully earlier this months, GOPers routinely show up to claim credit for these plants, even while ignoring that Democratic investments rather than GOP austerity made the plants possible.

Governor Snyder, who spent a campaign trash-talking both the state economic development team and the tax credits that are now growing a clean energy economy here in Michigan, not only used an advanced battery plant created with state incentives and stimulus money to introduce the Republican ticket last August, now has given his “Reinventing Michigan” award to another Governor Granholm/MEDC/Recovery Act success story – and tries to play it off as a victory surrounding his political talking points.

[snip]

Pete Hoekstra also tried to turn Energetx into a political football during his failed 2010 gubernatorial campaign, at the time holding a press conference to both celebrate the jobs and denounce the credits that brought them here – a move that forced CEO Slikkers to defend the company and the state economic development team. Awkward.

Now, Snyder has given them a shiny award, and uses the occasion to push his simplistic trickle-down plan that probably would have had the company looking at Indiana or some other state for incentives in the first place. The hubris is amazing.

Both at a national and a regional level, it seems to me, these are the jobs the DNC ought to be bragging about. Nationally, few people understand how stimulus dollars invested in new technology that should help the Big 2.5 compete in the near future. I hear a lot of people badmouthing the auto bailout because they don’t understand how significant a shift GM, at least, has made on efficiency; but this cool new tech ought to make folks on the coasts happier about the money spent.

And pointing to these factories at a regional level would highlight the good, new news. Michiganders, for one, are acutely aware that MI needed new technology, and Granholm worked her ass off to attract it. That effort is just now coming to fruition.

More importantly, we’re waging an ideological battle here in the Midwest, as a bunch of GOP hacks try to restructure the Midwest with policies that will strip the region of the things we do well (in many cases, like educating our children). The national party might like to keep it a secret that government investment actually works, particularly in new industries. But if it keeps that story a secret, we’re going to lose the ideological battle for the Midwest.

The government appears to hope three time’s a charm. The last two times they subpoenaed James Risen in the case of Jeffrey Sterling, Judge Leonie Brinkema quashed the subpoena. But they’re trying again, this time to get him to testify at Sterling’s trial.

It appears likely they planned to do this all along and crafted the charges against Sterling accordingly. For example, they claim they need Risen to testify, in part, to authenticate his book and the locale where alleged leaks took place.

Risen can directly identify Sterling as the individual who illegally transmitted to him national defense information concerning Classified Program No. 1 and Human Asset No. 1. Because he is an eyewitness, his testimony will simplify the trial and clarify matters for the jury. Additionally, as set forth below, Risen can establish venue for certain of the charged counts; can authenticate his book and lay the necessary foundation to admit the defendant’s statements in the book; and can identify the defendant as someone with whom he had a preexisting source relationship that pre-dated the charged disclosures. His testimony therefore will allow for an efficient presentation of the Government’s case.

Locale issues stem from mail fraud charges that appeared ticky tack charges up to this point. But the government is now arguing that that information–as distinct from whether Sterling served as a source for the information at issue–is critical to these ticky tack charges. Which, it seems they hope, would get them beyond any balancing test on whether Risen’s testimony is crucial for the evidence at question. They also point to mentions in the indictment of an on-the-record article Risen did with Sterling, suggesting that at the very least they ought to be able to ask Risen about this at trial since he would not be protecting an anonymous source.

In other words, they crafted the indictment to be able to argue to Brinkema that on some matters, Risen’s testimony is crucial, and on others, it qualifies for no privilege.

Of course, they also have to argue that this subpoena is not harassment. If I were Risen’s lawyer, I’d argue crafting the indictment in such a way as to carve out areas to get Risen into court is itself harassment.

But that’s not all. The government tries to argue for the necessity of Risen’s testimony in one other way, one that is of particular interest. They say that Risen told his publisher that he relied on more than one CIA source for his work on MERLIN.

In addition, Risen’s own representations to his publisher demonstrate the importance of his testimony regarding the defendant’s identity. In his book proposal, Mr. Risen represented that, in writing his book, he spoke with more than one CIA officer involved in Classified Program No. 1. Consistent with these representations, moreover, the chapter of Mr. Risen’s book that includes information about Classified Program No. 1 appears to reflect the private conversations and inner thoughts of more than one individual.11 See, e.g., Exhibit A at p. 203. Risen’s testimony is therefore relevant to identifying Sterling as a source and to identifying the specific items of national defense information in his book for which Sterling was his source. Put simply, Risen’s testimony will directly establish that Sterling disclosed to him the national defense information about which he sought to write in a 2003 newspaper article, and which he ultimately included in his 2006 book. The jury should be permitted to hear that evidence in assessing whether the Government has met its burden of proving the defendant’s guilt beyond a reasonable doubt.

While this might support the necessity of Risen’s testimony on one hand (to identify what he got from Sterling and what he got from other sources), wouldn’t it also admit a selective prosecution defense? That is, if the government itself is arguing that Risen spoke to more than one CIA officer about MERLIN, then why are they only charging Sterling?

The answer may be because of the dispute about the accuracy of Sterling’s testimony. Remember, the government claims that Sterling lied to Risen about some aspect of MERLIN, presumably about whether or not the blueprints we gave to Iran had an obvious flaw that the Russian defector immediately identified. And they’re trying to use that claim–that Sterling lied–to argue that Risen doesn’t have an obligation anymore to protect his source.

Finally, whatever interest Risen has in keeping confidential his source for the national defense information at issue here, it is severely diminished by the fact that the defendant characterized some of that information in a false and misleading manner as a means of inducing Risen to write about it. See Ind. ¶ 18, 19(d). In short, the Indictment charges that the defendant perpetrated a fraud upon Risen. If “[s]preading false information in and of itself carries no First Amendment credentials” in the civil context, see Lando, 441 U.S. at 171, then it should carry no greater weight in a criminal prosecution.

They say that even while conceding that some of the information Sterling allegedly leaked to Risen is true.

The Indictment alleges that some of the information that appears in Risen’s book is national defense information – and thus is implicitly true – but also notes that some of the information contained therein is characterized in a false and misleading manner. See Ind. ¶¶ 18,19(d). The Government is not here either confirming or denying the accuracy of any particular fact reported in the book.

There’s a lot we can conclude from this filing–not least that the government seems to be abandoning the intent of the Attorney General guidelines on subpoenaing journalists (the guidelines are not mentioned once in the filing). But most of all, it seems we can conclude that the government doesn’t care so much that Sterling allegedly leaked this information–because they’re not charging the other CIA officers they appear to know leaked to Risen–but that Sterling was critical of the operation while he leaked the information.

I’ve been reading the National Academy of Sciences Anthrax Report and noted something odd in follow-up to the McClatchy report of the other day describing unexplained tin and silicon in one of the anthrax samples. (Here’s Jim White’s post on the report.) As McClatchy reported, there’s some weird data about silicon and tin in some of the samples.

The lab data, contained in more than 9,000 pages of files that emerged a year after the Justice Department closed its inquiry and condemned the late Army microbiologist Bruce Ivins as the perpetrator, shows unusual levels of silicon and tin in anthrax powder from two of the five letters.

[snip]

To arrive at that position, however, the FBI had to discount its own bulk testing results showing that silicon composed an extraordinary 10.8 percent of a sample from a mailing to the New York Post and as much as 1.8 percent of the anthrax from a letter sent to Democratic Sen. Patrick Leahy of Vermont, far more than the occasional trace contamination. Tin — not usually seen in anthrax powder at all — was measured at 0.65 percent and 0.2 percent, respectively, in those letters.

But it turns out that the weirdest data–showing the 10.8 silicon in the NY Post sample–didn’t come from FBI. As NAS explained, that data came from the Armed Forces Institute of Pathology.

Early in the investigation, AFIP performed [scanning electron microscopy-energy-dispersive X-ray] SEM-EDX analysis of a New York Post letter sample and found regions in the sample having high silicon content but no oxygen, suggesting the presence of silicon-rich material that was not related to nanoparticulate silica. While this observation could have led to an explanation for the difference between the bulk and individual spore measurements, follow-up experiments apparently were not performed.

A release from AFIP describing their analysis of the Daschle letter (not the NY Post letter) is one of the most cited sources of the claim that the anthrax was weaponized in a uniquely Iraqi fashion.

“Ft Detrick sought our assistance to determine the specific components of the anthrax found in the Daschle letter,” said Florabel G. Mullick, MD, ScD, SES, AFIP Principal Deputy Director and department chair. AFIP experts utilized an energy dispersive X-ray spectrometer (an instrument used to detect the presence of otherwise-unseen chemicals through characteristic wavelengths of X-ray light) to confirm the previously unidentifiable substance as silica. “This was a key component,” Mullick said. “Silica prevents the anthrax from aggregating, making it easier to aerosolize. Significantly, we noted the absence of aluminum with the silica. This combination had previously been found in anthrax produced by Iraq.”

This was the analysis that a USAMRID scientist used to declare that the anthrax was weaponized–which said scientist retracted after later Sandia analysis was done (from the NAS report).

An initial finding by the Armed Forces Institute of Pathology (AFIP) found, upon gross examination, that the spores exhibited a silicon signal and sometimes exhibited an oxygen signal. Subsequent studies conducted by Sandia National Laboratories (as described in Chapter 4 of this report) determined that the silicon was localized to the spore coat within the exosporium—that is, it was incorporated into the cell as a natural part of the cell formation process. The USAMRIID scientist who first reviewed the AFIP results and made statements regarding the presence of silicon and possible weaponization retracted those earlier statements.

So some of this was known before–that AFIP served a key role in early rumors that the anthrax was weaponized in a way that pointed to Iraq. But the NAS report seems to confirm that the Iraq rumors originated at least in part from AFIP.

That’s all very interesting for several reasons. First, because FBI claims to have gotten data on AFIP’s SEM-EDX tests just last year.

The committee notes that this information was not made available to it or to the FBI until spring 2010.

That would mean FBI didn’t get (or ask for?) the information until after it had closed the investigation (they closed the investigation in February 2010)!

It would also suggest–rather incredibly–that FBI didn’t hunt down this information when they were stonewalling Jerry Nadler about it (as McClatchy reminds).

New York Democratic Rep. Jerrold Nadler asked FBI Director Robert Mueller how much silicon was in the Post and Leahy letters at a hearing before the House Judiciary Committee in September 2008. The Justice Department responded seven months later that silicon made up 1.4 percent of the Leahy powder (without disclosing the 1.8 percent reading) and that “a reliable quantitative measurement was not possible” for the Post letter.

More interesting still, NAS can’t explain what relationship existed between FBI and AFIP.

The committee also reviewed reports of work carried out in parallel at the AFIP although it is not clear how closely AFIP and the FBI investigative and scientific teams worked together or coordinated their efforts.

I’m also confused about when AFIP did these tests. In its list of official tests, NAS describes the AFIP SEM-EDX tests as having taken place in November 2001.

But somewhere along the way, perhaps along with information about the investigation of a claimed al Qaeda anthrax site explored in 2004, NAS got additional materials from AFIP dating to October 2001.

AFIP Materials related to USAMRIID Specimens October 2001 (41 pages)

And still more interesting is the reference to documents provided to NAS in December 2010–at the time when FBI was trying to stall the release of this document–showing AFIP, along with USAMRID, purportedly conducted anthrax studies on the remains of the Flight 93 9/11 hijackers.

Finally, in the new materials provided to the committee it is noted that [polymerase chain reaction] PCR analysis was performed on human remains from United flight 93 on 9/11/2001 that were identified as those of the hijackers (B3D1). Analysis was performed at USAMRIID and at AFIP for sequences diagnostic of B. anthracis. One assay at USAMRIID gave positive results, but these results were believed by the FBI to be due to laboratory contamination. All other results were negative. As the committee learned at the January 2011 meeting, there were no tests done on remains from any of the other September 11, 2001 hijackers. [my emphasis]

So let’s see. At some point during the anthrax attacks in 2001, USAMRID and AFIP decided to do anthrax tests on material from Flight 93. They purportedly  found the hijackers tested positive for anthrax! But on second thought, FBI tells us, that positive result came from “lab contamination.” And then, presumably just after those tests, USAMRID and AFIP, perhaps working outside the chain of the official FBI investigation of anthrax, discover evidence implicating Iraq in the anthrax attacks. Results that, once again, further testing suggested was inaccurate.

Another example of lab contamination, I guess. Funny how that happens.

And the FBI wants us to believe that over the course of a 9 year investigation, they never decided to investigate the circumstances surrounding this partnership that somehow always resulted in convenient propaganda?

I’ve been reviewing the docket on Thomas Drake’s case to see whether it touches on the privacy concerns Drake had about NSA’s post-9/11 activities.

It appears it doesn’t, even while there was an ongoing dispute about whether or not Drake will have access to the materials he submitted to the DOD Inspector General in support of claims that the ThinThread program operated more effectively than the Trailblazer program that Michael Hayden chose to enrich SAIC with instead (the Judge ruled that material would be admissible, but not a formal whistleblower defense, which Drake wasn’t trying to do anyway).

There are a couple of reasons why the silence, in the legal filings, about privacy concerns is interesting (aside from the fact that it’s a focus of Jane Mayer’s article.

First, because the two-sentence summary of the conclusion of the DOD IG Report on Trailblazer and ThinThread that the defense provides in a filing doesn’t address privacy.

In 2004, after more than a year of fact-finding, the Inspector General issued its initial audit findings. In a report entitled, “Requirements for the Trailblazer and Thinthread Systems,” the auditors concluded that “the National Security Agency is inefficiently using resources to develop a digital network exploitation system that is not capable of fully exploiting the digital network intelligence available to analysts from the Global Information Network . . . (T)he NSA transformation effort may be developing a less capable long-term digital network exploitation solution that will take longer and cost significantly more to develop.” The NSA continued to support the “less capable” program and its successor.

Which suggests the IG Report may not have addressed the claim that, in addition to being less efficient at “connecting the dots” than ThinThread, Trailblazer also offered none of the privacy protections ThinThread had.

That’s important because the government argued that Drake couldn’t claim to be a whistleblower because, by 2007, the issues at hand were resolved. They’re arguing both that any whistleblower claims would be mooted because Turbulence, Trailblazer’s successor, integrated “significant portions” of ThinThread, and that the debate was “over” by 2007, when Drake was (according to the indictment) serving as a source for Baltimore Sun reporter Siobhan Gorman.

In or about December 2004, the DOD IG completed its audit of [Trailblazer], including the allegations raised in the complaint letter. The NSA responded in August 2004 and February 2005, stating that based on the judgments of NSA’s experienced technical experts, the allegations were unfounded. Nonetheless, NSA agreed to incorporate significant portions of [ThinThread] into [Trailblazer] as a result of the DOD IG recommendations, thus largely mooting the issues raised in the complaint. In addition, starting in late 2005 and early 2006, the NSA transitioned away from [Trailblazer] to [Turbulence], another corporate architecture solution for Signals Intelligence collection.

[snip]

Just as importantly, by 2007, the timeframe of the charges in this case, there was no imminent harm faced by the defendant, because [Trailblazer] had incorporated elements of [ThinThread], and also because NSA had transitioned away from [Trailblazer] to [Turbulence].

[snip]

The defendant’s actions had no impact in the debate regarding the efficacy of [Trailblazer and ThinThread], because NSA had begun transitioning to [Turbulence] by 2006. Put simply, the debate was over.

There’s a lot going on in this passage. Obviously, the government is trying to claim that since Drake was allegedly collecting information for Gorman in 2007, he couldn’t claim he was whistleblowing.

Mind you he was not claiming he was whistleblowing, in the legal sense. He was only trying to get the IG materials to prove that’s why he collected three of the documents he’s accused of willingly keeping; basically, he’s arguing that if he overlooked three documents out of 5 boxes worth originally collected for the IG–and did not retain the really classified materials–that he basically just overlooked the three documents, rather than willfully retained them.

And the government is playing funny with dates. After all, they say Drake served as a source for Gorman from February 27, 2006, to November 28, 2007. The key story about ThinThread Drake served as a source for was dated May 18, 2006. And one of the charges accuses Drake of obstruction for shredding other documents. So not only is the 2007 date bogus because it igonores debates ongoing in 2006, but the government suggests that either Drake would be guilty for illegally retaining information, or obstructing an investigation. Moreover, Drake maintains he inadvertently included the three IG-related documents in the several boxes of unclassified materials, so the fact the debate was over is pointless.

Moreover, the successor to Trailblazer, Turbulence, was suffering from the same management problems Trailblazer had, as the defense notes just after citing the IG Report. The government wants to pretend the shift from Trailblazer to Turbulence ended the complaints about management problems, but it didn’t.

But then there’s the way the government portrays the IG complaint: efficacy. As I laid out the other day, there are four ways, Gorman’s sources claim, that ThinThread was better than Trailblazer:

The program the NSA rejected, called ThinThread, was developed to handle greater volumes of information, partly in expectation of threats surrounding the millennium celebrations. Sources say it bundled together four cutting-edge surveillance tools. ThinThread would have:

* Used more sophisticated methods of sorting through massive phone and e-mail data to identify suspect communications.

* Identified U.S. phone numbers and other communications data and encrypted them to ensure caller privacy.

* Employed an automated auditing system to monitor how analysts handled the information, in order to prevent misuse and improve efficiency.

* Analyzed the data to identify relationships between callers and chronicle their contacts. Only when evidence of a potential threat had been developed would analysts be able to request decryption of the records.

In other words, privacy was just one of three ways ThinThread was better than Trailblazer, according to Gorman’s sources.

But that’s not the aspect the government seems to address. That is, the government seems to be saying that, because Turbulence adopted some of the approaches of ThinThread that made it more efficient at analysis, Drake can’t complain. The suggestion is (though we can’t know because of the secrecy) privacy is not, like efficacy, an adequate reason to blow the whistle. Neither privacy, nor the Constitution.

And that’s interesting for two more reasons. First, because the government references a notebook of documents Drake provided that had nothing to do with the IG Report.

There was, for example, a notebook of documents provided by the defendant, many of which had nothing to do with the IG’s audit, but this notebook was destroyed before the case began, and after the IG completed its audit.

Is it playing games with the scope of the audit? That is, did Drake provide materials on privacy, which the IG didn’t include within the scope of its report? If so, the IG’s destruction of the notebook, in violation of DOD’s document retention policy, is all the more interesting.

Then, finally, the debates about privacy continued into 2007 and 2008. In August 2007, specifically, Mike McConnell nixed a Democratic version of the Protect America Act because it required the government to tell FISA judges what the plan for minimizing US person data is and allowed the judges to review for compliance. Debates on how to fix PAA continued throughout the fall and into the following year, with Russ Feingold and Sheldon Whitehouse both trying to make real improvements on the minimization requirements.

The government seems to want to say that Drake’s privacy concerns aren’t a valid whistleblowing concern. Because, I guess, government officials aren’t allowed to whistleblow about citizens’ rights.

Thomas Drake, the NSA whistleblower, was on 60 Minutes this evening. I’ll have more to say about his appearance and case going forward, but I just wanted to highlight a critical detail revealed by 60 Minutes: the relative cost of Trailblazer–the SAIC implemented program Michael Hayden championed–and ThinThread–the program Drake and others claim was more effective and had privacy protections.

One of them was Lieutenant General Michael Hayden, the head of the agency: he wanted to transform the agency and launched a massive modernization program, code named: “Trailblazer.” It was supposed to do what Thin Thread did, and more.

Trailblazer would be the NSA’s biggest project. Hayden’s philosophy was to let private industry do the job. Enormous deals were signed with defense contractors. [Bill] Binney’s Thin Thread program cost $3 million; Trailblazer would run more than $1 billion and take years to develop.

“Do you have any idea why General Hayden decided to go with Trailblazer as opposed to Thin Thread, which already existed?” Pelley asked.

“I believe he was convinced by others that going with a large-scale, industrial strength solution was the approach that NSA needed to take. You can’t really understand why they would make that kind of a decision without understanding the culture of NSA,” Drake said.

Asked to elaborate, Drake said, “Careers are built on projects and programs. The bigger, the better their career.” [my emphasis]

So Drake was complaining about a program that cost 300 times as much as the one he championed (ultimately, Trailblazer cost $1.2 billion, so actually 400 times as much). It’s not an apples-to-apples comparison. Trailblazer, according to a government filing, worked across more platforms. ThinThread, according to a Siobhan Gorman story, had additional functionality, including privacy protections.

But still, Drake complained about a program that did what ThinThread did–at 300 to 400 times the cost.

As one of the other NSA employees who whistleblew about Trailblazer, J. Kirk Wiebe, explains,

“How does a man see 9/11 happened, know that some part of it is due to corruption and mismanagement and sleep at night. How does a man do that? He obviously couldn’t,” Wiebe told Pelley.

Yet the government wants to put Drake in jail for 35 years because he tried to make sure incompetence that led to 9/11 doesn’t continue.

I’ll admit, I was merely disgusted when Mickey Mouse tried to trademark Seal Team 6. But Mickey’s seeming embrace of GateGrope is far more disturbing. (h/t Bruce Schneier) In a press release boasting about changes to Walt Disney World’s Star Tour ride, Disney boasts of their imitation TSA checkpoints!

The second room of the queue is now a security check area, similar to a TSA checkpoint. The two G-series droids are still there, G2-9T scanning luggage and G2-4T scanning passengers. For those attraction junkies, you’ll remember that the G-series droids are so named because in the original Disneyland Park version of the ride, they were created by removing the “skins” from two of the goose animatronics from the soon-to-close America Sings attraction (Goose = “G” series). While we won’t tell you why, you’ll enjoy paying a lot of attention to what the scans of the luggage show is inside. When it’s your turn to go through the passenger scan (a thermal body scan), you may be verbally accosted by a security droid. Also, keep an eye out in the queue for an earlier version of RX-24 (“Captain Rex”) from the original Star Tours; he’s labeled “defective” and has some familiar dialogue.

Families are paying something like $280 a day to be amused at Walt Disney World. And as part of the amusement, they “get” to go through a “thermal body scan”?!?!?! All enhanced by the pleasure of being “verbally accosted by a security droid”!?!?!?! And all this as a way to make standing in line for obscene amounts of time to feel like a celebration of fantasy and/or capitalism rather than a pathology just like it was in the former Soviet Union?

I’m actually surprised that Schneier isn’t even more appalled at this than he is, given that he’s been as skeptical of “security theater” as anyone.

I mean, I want to know how a company with close regulatory ties to the federal government decides it will now claim it’s fun to submit to verbal abuse at the hand of what is cast as a “droid”? … How it decides either that “security scans” are such a part of our reality that no endless queue should be without one–all to help suspend our disbelief, I assume–or that a body scan is a good way to kill time in an hour-long line?

Sure, there’s a history of using Mickey Mouse to get children to accommodate security “precautions.” But do we really need to use Mickey to accustom children to RapeAScan?