Intelligence

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RuppRoge Fake Dragnet Fix Requires Intel Community to Update 30 Year Old EO 12333 Procedures

One good aspect of the RuppRoge Fake Dragnet Fix is its measure requiring all elements of the Intelligence Community to comply with the EO that governs them.

At issue is this clause in EO 12333 requiring that any element of the Intelligence Community collecting data on US persons have Attorney General approved procedures for handling that data.

2.3 Collection of information. Elements of the Intelligence Community are authorized to collect, retain, or disseminate information concerning United States persons only in accordance with procedures established by the head of the Intelligence Community element concerned or by the head of a department containing such element and approved by the Attorney General, consistent with the authorities provided by Part 1 of this Order, after consultation with the Director.

This is something PCLOB asked Eric Holder and James Clapper to make sure got done back in August. In their letter, they disclosed some agencies in the IC have been stalling on these updates almost 3 decades.

The Privacy and Civil Liberties Oversight Board just sent a letter to Eric Holder and James Clapper requesting that they have all the Intelligence Committee agencies update what are minimization procedures (though the letter doesn’t call them that), “to take into account new developments including technological developments.”

As you know, Executive Order 12333 establishes the overall framework for the conduct of intelligence activities by U.S. intelligence agencies. Under section 2.3 of the Executive Order, intelligence agencies can only collect, retain, and disseminate information about U.S. persons if the information fits within one of the enumerated categories under the Order and if it is permitted under that agency’s implementing guidelines approved by the Attorney General after consultation with the Director of National Intelligence.

The Privacy and Civil Liberties Oversight Board has learned that key procedures that form the guidelines to protect “information concerning United States person” have not comprehensively been updated, in some cases in almost three decades, despite dramatic changes in information use and technology. [my update]

In other words, these procedures haven’t been updated, in some cases, since not long after Ronald Reagan issued this EO in 1981.

RuppRoge aims to require the IC elements to comply.

(1) REQUIREMENT FOR IMMEDIATE REVIEW.–Each head of an element of the intelligence community that has not obtained the approval of the Attorney General for the procedures, in their entirety, required by section 2.3 of Executive Order 12333 (50 U.S.C. 3001 note) within 5 years prior to the data of the enactment of the End Bulk Collection Act of 2014, shall initiate, not later than 180 days after such enactment, a review of the procedures for such element.

Mind you, asking agencies to initiate a review 6 months after passage of a bill to update procedures that are 30 years old isn’t exactly lighting a fire under IC arse. But then, the delay probably stems from some agencies hoarding agency records on US persons that are even older than the EO.

CIA Hacks Its Overseers

In January, Ron Wyden and Mark Udall suggested that CIA was hacking into US computers.

Wyden asked (43;04) John Brennan whether the federal Computer Fraud and Abuse Act applied to the CIA.

Wyden: Does the federal Computer Fraud and Abuse Act apply to the CIA?

Brennan: I would have to look into what that act actually calls for and its applicability to CIA’s authorities. I’ll be happy to get back to you, Senator, on that.

Wyden: How long would that take?

Brennan: I’ll be happy to get back to you as soon as possible but certainly no longer than–

Wyden: A week?

Brennan: I think that I could get that back to you, yes.

Minutes later, Mark Udall raised EO 12333′s limits on CIA’s spying domestically (48:30).

Udall: I want to be able to reassure the American people that the CIA and the Director understand the limits of its authorities. We are all aware of Executive Order 12333. That order prohibits the CIA from engaging in domestic spying and searches of US citizens within our borders. Can you assure the Committee that the CIA does not conduct such domestic spying and searches?

Brennan: I can assure the Committee that the CIA follows the letter and spirit of the law in terms of what CIA’s authorities are, in terms of its responsibilities to collect intelligence that will keep this country safe. Yes Senator, I do.

It appears the target of this hacking was the Senate Intelligence Committee itself.

The CIA Inspector General’s Office has asked the Justice Department to investigate allegations of malfeasance at the spy agency in connection with a yet-to-be released Senate Intelligence Committee report into the CIA’s secret detention and interrogation program, McClatchy has learned.

The criminal referral may be related to what several knowledgeable people said was CIA monitoring of computers used by Senate aides to prepare the study. The monitoring may have violated an agreement between the committee and the agency.

[snip]

The committee determined earlier this year that the CIA monitored computers – in possible violation of an agreement against doing so – that the agency had provided to intelligence committee staff in a secure room at CIA headquarters that the agency insisted they use to review millions of pages of top-secret reports, cables and other documents, according to people with knowledge.

Sen. Ron Wyden, D-Oregon, a panel member, apparently was referring to the monitoring when he asked CIA Director John Brennan at a Jan. 9 hearing if provisions of the Federal Computer Fraud and Abuse Act “apply to the CIA? Seems to me that’s a yes or no answer.”

NYT adds that CIA started spying on SSCI after learning it had accessed documents they didn’t want them to.

The action, which Mr. Udall did not describe, took place after C.I.A. officials came to suspect that congressional staff members had gained unauthorized access to agency documents during the course of the Intelligence Committee’s years-long investigation into the detention and interrogation program.

This is effectively the same treatment the CIA extends to Gitmo lawyers and defendants, where it spies to see what they’re saying about its torture methods.

But I bet it will be treated with more seriousness.

Of Neo-Fascists and Smiley-Face Neoliberals

Back before February 4, weeks before the most violent crackdown that killed protestors that led to Viktor Yanukovych’s ouster, Assistant Secretary of State Victoria Nuland and US Ambassador to Ukraine had a conversation about how to divvy up power between 3 opposition figures in a post-Yanukovych Ukraine. Nuland deemed “Yats” the necessary post-Yanukovych leader.

Nuland: [Breaks in] I think Yats is the guy who’s got the economic experience, the governing experience. He’s the… what he needs is Klitsch and Tyahnybok on the outside. He needs to be talking to them four times a week, you know. I just think Klitsch going in… he’s going to be at that level working for Yatseniuk, it’s just not going to work.

Pyatt: Yeah, no, I think that’s right. OK. Good. Do you want us to set up a call with him as the next step?

Thursday, Yatseniuk was appointed Prime Minister. (Update: See this Forbes piece on Yatseniuk.)

On Monday, Mark Ames wrote a piece explaining why “Everything You Know about Ukraine Is Wrong.” In it, he treated claims about two main groups involved in Ukraine’s uprising: the general protestors, and the far right.

Of the general protestors, he says,

In fact, the people who are protesting or supporting the protesters are first and foremost sick of their shitty lives in a shitty country they want to make better—a country where their fates are controlled by a tiny handful of nihilistic oligarchs and Kremlin overlords, and their political frontmen. It’s first and foremost a desire to gain some control over their fate.

Of the far right, he says,

They’re definitely real, they’re a powerful minority in the anti-Yanukovych campaign—I’d say the neo-fascsists from Svoboda and Pravy Sektor are probably the vanguard of the movement, the ones who pushed it harder than anyone. Anyone who ignores the role of the neo-fascists (or ultranationalists, take your pick) is lying or ignorant, just as anyone who claims that Yanukovych answered only to Putin doesn’t know what they’re talking about. The front-center role of Svoboda and the neo-fascists in this revolution as opposed to the Orange Revolution is, I think, due to fact that the more smiley-face/respectable neoliberal politicians can’t rally the same fanatical support they did a decade ago. [my emphasis]

I generally agree with this: there is abundant reason for protestors, of their own accord and with full agency, to want to change the status quo. And that’s what has been going on for months. A big change to the status quo going forward is probably not going to happen, because the existing offerings on all sides are all pretty crummy. And there is a concerning faction — the loud violent one, which therefore played an outsized role in Yanukovych’s ouster — that espouses troubling far-right politics.

Sunday, partly because of real legal questions about Yanukovych’s ouster, partly because some of the tactics we’re seeing in Ukraine seem to have ties to those we saw in Syria, and partly because of a 20-month old twitter conversation with Adam Colligan involving Paraguay laid out here, I tweeted, “There’s quite a bit of evidence of coup-ness. Q is how many levels deep interference from both sides is,” though I said we don’t really know what went on yet. Later in the conversation I suggested this part of the invitation for all parties to sow instability arose because American power is waning. “Of course, part of it is just that Pax America is spinning out, trying to sustain itself.”

As Colligan laid out, our conversation existed in the context of a long-ago conversation we had about the potential role of parliaments in “coups.” Nowhere did I get into specifics about who I believed to behind any coup (though later I suggested John Brennan might one day rival Allen Dulles for the number of coups he pulls off; I actually think he might instead rival him for coups attempted, not coups successfully pulled off). But in any case, we were talking about very recent events — still in the last week, which is part of the reason I said we probably don’t know everything there is to know yet, in the context of violence that led to Yanukovych’s ouster.

Ames took that one tweet — “There’s quite a bit of evidence of coup-ness. Q is how many levels deep interference from both sides is” — and my reference to Pax Americana and used it as a hook for this piece. Here’s how he uses those tweets:

Marcy Wheeler, who is the new site’s “senior policy analyst,” speculated that the Ukraine revolution was likely a “coup” engineered by “deep” forces on behalf of “Pax Americana”:

“There’s quite a bit of evidence of coup-ness. Q is how many levels deep interference from both sides is.”

These are serious claims. So serious that I decided to investigate them. And what I found was shocking.

Wheeler is partly correct. Pando has confirmed that the American government – in the form of the US Agency for International Development (USAID) – played a major role in funding opposition groups prior to the revolution. Moreover, a large percentage of the rest of the funding to those same groups came from a US billionaire who has previously worked closely with US government agencies to further his own business interests. This was by no means a US-backed “coup,” but clear evidence shows that US investment was a force multiplier for many of the groups involved in overthrowing Yanukovych.

But that’s not the shocking part.

What’s shocking is the name of the billionaire who co-invested with the US government (or as Wheeler put it: the “dark deep force” acting on behalf of “Pax Americana”).

Step out of the shadows…. Wheeler’s boss, Pierre Omidyar.

Yes, in the annals of independent media, this might be the strangest twist ever: According to financial disclosures and reports seen by Pando, the founder and publisher of Glenn Greenwald’s government-bashing blog,“The Intercept,” co-invested with the US government to help fund regime change in Ukraine.

Now, Ames apparently couldn’t even cut and paste competently because he added “force” inside quotation marks attributed to me, and in the original reference used “dark” instead of “deep,” all of which played a key rhetorical role in giving his claims their “dark deep” tinge. (In several tweets, Ames’ editor Paul Carr assured me he thought Ames’ citations of me were fair.)

Cue Hollywood villain music: Bum bum bum!

But let’s look at what Pando claims it has proven: It claims it has presented (1) clear evidence that (2) US (and Omidyar’s) investment was a “force multiplier” (3) for “many” of the groups “involved” in overthrowing Yanukovych. It also says Omidyar (4) “co-invested with the US government” (5) “to fund regime change.”

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DHS Fear-Mongers Off Apparent Diminishment in Ibrahim al-Asiri’s Skills

The Department of Homeland Security wants you to be afraid of the latest handiwork of AQAP’s bomb-maker, Ibrahim al-Asiri. They’ve issued a warning (and leaked that warning) about new-and-improved shoe bombs.

Senior U.S. officials say that Wednesday’s terror warning about international air travel, first reported by NBC News, is the result of recent chatter about Ibrahim al-Asiri, the al Qaeda bombmaker from Yemen responsible for several high-profile bombing attempts against U.S. targets.

On Wednesday, the Department of Homeland Security warned airlines of new information related to the possibility of bombs or bomb material hidden in shoes, like the device that shoe bomber Richard Reid used to try to take down a plane over the Atlantic in December 2001.

Now, perhaps this is a grave new worry.

But the first thing I thought of when I heard about this warning was the warning DHS issued two years ago, 10 days after they had flown the Saudi-British infiltrator into AQAP out of Yemen with the undiebomb he was allegedly given to use against a US-bound flight.

DIANE SAWYER (ABC NEWS)

(Off-camera) Good evening. As we come on the air, ABC News has learned that US authorities are studying a new terror threat tonight, members of al Qaeda using body bombs, explosives that have been surgically implanted in their bodies to evade security. Tomorrow, it will be the one-year anniversary of Osama bin Laden’s death, making this week a time of heightened concern on the ground and in the sky. And ABC’s chief investigative correspondent Brian Ross is here with these new details. Brian?

BRIAN ROSS (ABC NEWS)

(Off-camera) Diane, well, tonight American and European authorities tell ABC News, they fear al Qaeda will use these so-called body bombs to target Americans overseas and US flights coming in from overseas.

GRAPHICS: SECURITY WATCH

BRIAN ROSS (ABC NEWS)

(Voiceover) As a result, security at several airports in the United Kingdom and elsewhere in Europe and the middle ease has been substantially stepped up, with a focus on US carriers. And additional federal air marshals have been shifted overseas in advance of this week’s anniversary of the bin Laden raid. The plot is not so far fetched. Medical experts say there is plenty of room in the stomach area for surgically implanted explosives.

After that bit of propaganda, I fully expect the White House will roll out a thwarted plot in approximately 8 days. And then, after the initial excitement, we’ll learn the plot (if it was indeed a plot and not a sting) was actually thwarted (if it was indeed a plot and not a sting) back on February 14.

Bonus points: this plot will have been foiled using the phone dragnet.

And aside from the skepticism I have given DHS’ past manipulation of Asiri warnings, there’s one more problem with DHS crying wolf like this.

Two years ago, anonymous leakers from the very same vicinity as this week’s leakers assured us that Asiri had mastered the process of surgically placing operational bombs inside a person’s stomach cavity Virtually undetectable, even with Michael Chertoff’s best boondoggle machines!

And now, with two more years to perfect his craft, DHS claims that Asiri is making … shoe bombs?

Really? Shoe bombs?

We’re supposed to be panicked that Asiri’s skill has apparently regressed from where — these same anonymous leakers claimed — it was two years ago, that Asiri can no longer make undetectable cavity bombs but has instead returned to a ploy Al Qaeda used 12 years ago?

Again, maybe this threat is real. If it is, it’s too damn bad DHS has already squandered its credibility with past inflammatory warnings about Asiri’s skill.

Judge William Martini Endorses Hunting for Terrorists in Muslim Girls Schools

Picture 41The AP correctly captures the jist of Judge William Martini’s rejection of a lawsuit against the NYPD for spying on Muslims.

The core of his logic is that Adam Goldman and Matt Apuzzo have injured NYC’s Muslim community by providing them proof of the spying targeted at them.

The ruling also singled out The Associated Press, which sparked the suit with a series of stories based on confidential NYPD document showing how the department sought to infiltrate dozens of mosques and Muslim student groups and investigated hundreds in New York and elsewhere.

“Nowhere in the complaint do the plaintiffs allege that they suffered harm prior to the unauthorized release of documents by The Associated Press,” Martini wrote. “This confirms that plaintiffs’ alleged injuries flow from the Associated Press’s unauthorized disclosure of the documents. … The Associated Press covertly obtained the materials and published them without authorization. Thus the injury, if any existed, is not fairly traceable to the city.”

But it doesn’t expose the other part of his shoddy logic clearly enough. Martini said all this spying was cool because it was designed to find Muslim terrorists hiding among Muslims.

The police could not have monitored New Jersey for Muslim terrorist activities without monitoring the Muslim community itself. While this surveillance Program may have had adverse effects upon the Muslim community after the Associated Press published its articles; the motive for the Program was not solely to discriminate against Muslims, but rather to find Muslim terrorists hiding among ordinary, law – abiding Muslims.

As I emphasized here, when it was first reported, NYPD wasn’t hunting for Muslim terrorists in places where the 9/11 terrorists were known to hang out — cheap hotels, gyms, cybercafes, and a bunch of other businesses catering to anonymity rather than Muslims. Rather, the NYPD was hunting terrorists in schools in Newark, including the one above teaching girls in fifth to twelfth grade, and another teaching first through fourth graders.

The NYPD was hunting terrorists in a girls school.

And Judge William Martini thinks that makes a whole bunch of sense.

“Destroy Them Immediately:” William McRaven Adopts the Jose Rodriguez Approach

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“Destroy them immediately.”

That’s what Admiral William McRaven said 11 days after Judicial Watch FOIAed for pictures of Osama bin Laden’s remains.

As I was the first to note back in June, McRaven ordered that all photos in JSOC’s possession should be purged. According to the IG Report where I first noted that order, he ordered them be sent to CIA (the final IG Report censored that reference). I thought at the time (and still believe) it was an attempt to jurisdictionally sheep dip the pictures, just as the operation had been, to get further protection for the pictures.

It’s only now, after Judicial Watch lost their suit to obtain these photos, that DOD has gotten around to providing this document that makes it clear McRaven ordered the photos not just purged, but “destroyed” after the Judiical Watch request.

It’s all so familiar!

The FBI’s Improving Cooperation with FSB

There were a number of questions about security threats to the Sochi Olympics at the Global Threat hearing the other day. One of them provided Jim Comey the opportunity to say this:

National Counterterrorism Center Director Matthew Olsen: So we’re very focused on the problem of terrorism in the run-up to the Olympics. I would add that I traveled to Sochi last December and met with Russian security officials. They understand the threat; they are very focused on this and devoting substantial resources. The biggest issue, from my perspective, is not the games themselves, the venues themselves; there is extensive security at those locations — the sites of the events. The greater threat is to softer targets in the greater Sochi area and in the outskirts, beyond Sochi, where there is a substantial potential for a terrorist attack.

Dianne Feinstein: Thank you very much. Mr. Comey, would you tell us what you can about cooperation between Russia and your organization?

FBI Director Jim Comey: Certainly, Senator. The cooperation between the FSB and the FBI in particular has been steadily improving over the last year. We’ve had exchanges at all levels, particularly in connection with Sochi, including me directly to my counterpart at FSB, and I think that we have a good level of cooperation there. It can always improve; we’re looking for ways to improve it, as are they, but this, as Director Olsen said, remains a big focus of the FBI. [my emphasis]

In the middle of a hearing at which James Clapper railed against Edward Snowden, claiming that counterintelligence threats — by which he largely meant Snowden — presented the second biggest threat to the country, the FBI Director stated that cooperation between his agency and the Russian spy agency has been improving for the last year (I’m guessing he means it has been improving since the Boston attack, because relations were quite chilly before that).

Snowden’s the second biggest threat to this country, and yet our relations with Russia, and specifically with Russia’s spy agency, have been steadily improving over the entire period Snowden has had asylum in Russia.

I don’t pretend to know precisely what that means.

At a minimum, it poses real questions about the unsubstantiated and whispered claims that Snowden has provided Russia great intelligence on NSA’s activities. After all, if Russia was busy exploiting Snowden’s secrets, it presumably would present challenges for this budding new cooperation between the FSB and those investigating Snowden’s leaks.

(The Global Threats report actually raises the case of Jeffrey Paul Delisle, a Canadian intelligence officer who gave Russia Five Eyes secrets for five years, as proof the Russians are soliciting more spies as part of its cyberwar efforts.)

There is, of course, another (remote) possibility: that we worked out a deal with Russia, whereby they’d give Snowden asylum and report back what he had taken. I have no reason to believe Snowden has shared secrets (though don’t doubt Putin will take whatever he can get his hands on), and the thought that Russia would agree to tell us what Snowden got is far-fetched. Still, Putin’s enough of a statist he might do it (and might misinform us along the way). While far-fetched, if that were the case, though, it’d give the US several things: the security in knowing Snowden was in the hands of security forces who would prevent any non-state or weaker states from getting to him, who were also limiting what Snowden could say publicly. Some clue about what Snowden had taken. And a political situation which would help US efforts to propagndize against Snowden.

Alternately, one of the things the FBI has learned as it has worked more closely with the FSB is that Snowden hasn’t shared any secrets with Russia (perhaps, as many have suggested, Russia got enough from Delisle that they would rather use Snowden solely to discomfit us).

I don’t know what it means. But I do find it rather implausible that the FBI would continue to expand cooperation with the FSB even as it extracted NSA’s family jewels from Snowden. Yet that’s the story Snowden’s biggest detractors would like you to believe.

What Michael Flynn’s DIA Imputes to Facts We Know

Before I point to reasons why we should exercise some caution before we believe a DIA report claiming that Edward Snowden’s entire leak was orchestrated by the Russians, let me lay out the following.

First. until such time as we see evidence that the reported documents somehow inordinately benefit Russia (and/or see evidence that our cooperation with Russia isn’t increasing during the period of Snowden’s asylum there), I’m not much interested in the question. I’m still so busy — both between Snowden document reports and documents declassified in response to FOIAs in a false show of transparency — reading about programs Americans should have known, that I don’t have time or interest in this manufactured sideshow.

Second, I don’t know what Snowden’s relationship with Russia is (and suspect 99% of the people commenting don’t either). The claims Mike Rogers, in particular, made on Sunday are full of Clown Show logic problems, some of which Snowden debunked in a limited rebuttal in an interview with Jane Mayer. Some accusers and defenders are conflating what happened while Snowden was working at NSA and what happened after Snowden got stuck in Moscow. All that said, while we have no evidence of cooperation now, I fully expect Vlaidimir Putin tried all he could to get as much out of Snowden as he could.

I don’t know.

What I do know is that DIA under General Michael Flynn’s leadership seems to be developing a pattern of leaking sensational intelligence conclusions based on apparently bad logic at politically opportune moments.

The accusations against Snowden are from a DIA report that DIA’s Director, Michael Flynn, organized.

The Defense Department report was conducted by the Defense Intelligence Agency in coordination with other intelligence agencies across the government, according to two sources familiar with its findings. A spokesperson for the DIA said Lt. Gen. Michael Flynn, the agency’s director, organized a task force “to assess the potential impact to the Department of Defense from the compromise of this information.” But the spokesman did not say what, if any, conclusions the task force had reached about actual damage caused by documents Snowden took, regardless of whether they’ve been disclosed or not.

Admittedly, the conclusions of it got leaked with apparent White House permission. But it got leaked in the worst manner of Obama Administration asymmetric leaking, which have a history of being rather partial and politically self-serving.

Moreover, the entire orchestrated leak feels a lot like the “leak” last year — during heightened tensions between North and South Korea — of DIA’s conclusion that North Korea had the capability of launching a nuclear weapon on a ballistic missile. Republican Congressman Doug Lamborn, protected by Speech and Debate, revealed a detail that “accidentally” wasn’t redacted in a larger declassified finding. The “leak” fed a lot of fearmongering even as the Obama Administration was trying to temper responses.

A week after the initial leak, James Clapper and Flynn happened to testify before the Senate Armed Services Committee (the entire clip is worthwhile, but the particularly important parts start after 4:00). And in response to some Ted Cruz questions about North Korea, both Clapper and Flynn made it clear that the reason DIA had come to different conclusions than the rest of the Intelligence Community was because of the assumptions it had made. This inflammatory finding arose because of “a difference in how we judge assumptions,” Flynn explained. Clapper (who had spent a week trying to batten down the alarmism) said the debate arose from the “facts we know versus what we impute to those facts.”

That is, DIA had imputed conclusions to facts other agencies hadn’t.

According to its Director, DIA has a difference in how it judges assumptions from other intelligence agencies. And in this case, those who have read the DIA report appear to be repeating allegations remarkably divorced from any evidence, relying on wacky theories rather than real evidence.

Michael Flynn seems to be making a habit of this kind of analysis.

Did the Hospital Confrontation Shut Down an Illegal Dragnet against Iraq War Critics?

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Several days ago I wrote,

Both Goldsmith’s memo (see PDF 14) and the Draft NSA IG Report (PDF 10) make it clear that, in addition to temporarily shutting down the Internet dragnet, the March 19, 2004 modifications to the program narrowed the program’s focus to exclude the Iraqi Intelligence figures who had previously been included, suggesting that Goldsmith only felt he could approve the program for terrorists.

Wait, what?

I’ve known — and written — about this detail in the past. But I hadn’t really put together what it means.

Post-hospital confrontation changes include the exclusion of Iraqi-related targets

Here’s what the two passages say. Goldsmith’s (still heavily redacted) memo reveals that, along with other modifications George Bush made on March 19, 2004 in response to the DOJ resignation threats (notably, temporarily shutting down the Internet dragnet) he also “clarified” the scope of the program.

In the March 19, 2004 Modification, the President also clarified the scope of the authorization [redacted]. He made clear that the Authorization applied where there were reasonable grounds to believe that a communicant was an agent of an international terrorist group [redacted]

The NSA IG Report explains that “clarification” halted using the Presidential Surveillance Program authority against the Iraqi Intelligence Service.

(TS//SI//NF) Iraqi Intelligence Service. For a limited period of time surrounding the 2003 invasion of lraq, the President authorized the use of PSP authority against the Iraqi Intelligence Service. On 28 March 2003, the DCI determined that, based on then current intelligence, the Iraqi Intelligence service was engaged in terrorist activities and presented a threat to U.S. interests in the United States and abroad. Through the Deputy DCI, Mr. Tenet received the President’s concurrence that PSP authorities could be used against the Iraqi Intelligence Service. NSA ceased using the Authority for this purpose in March 2004. [my emphasis]

There may be a perfectly innocent explanation for this.

At precisely that time, Goldsmith was trying to rein in the government’s rendition program to prevent the rendition of Iraqis protected under international law governing occupation. And, at what appears to have been the same time, DOD was for the first time making a distinction between between Iraqis detained and interrogated as former regime officials and Iraqis detained and interrogated as leaders of the insurgency. Clearly, up until that point, Bush had been using the rules invented to hunt terrorists in his Iraq War, creating all sorts of legal problems. So it would be unsurprising if Goldsmith used the resignation threats to force Bush to stop targeting Iraqi officials as terrorists when they were really legal opponents in a war.

The Iraqi-related illegal wiretapping targets must include US-based collection

Except that doesn’t make sense.

That’s because, whatever violations of international law Bush was committing in Iraq, illegal spying on Iraqis was almost certainly not one of them. Nothing prevented the government from spying on Iraqis, and very little spying on Iraqis in Iraq would involve the kind of US collection that implicated his illegal wiretap program.

Which is why the IG Report’s description of an Iraqi intelligence “threat to U.S. interests in the United States” gives me pause.

The illegal program, after all, was focused on US metadata and content collection to find threats (what it called “terrorists”) in the United States. Both the method and location of collection only make sense if you’re hunting communications with at least one, if not both, sides in the US.

There was no real known threat posed by Iraqi governmental interests in the US, in part because the US military chased the Iraqi government underground so quickly. And yet, for it to be something tied into the resignation threats, some significant spying must have been going on.

The obvious guess — and at this point it is just a guess — would be they used the illegal wiretap program to hunt down people Cheney’s minions claimed helped Iraq’s cause here in the US.

You know? Iraqi intelligence assets? Like anti-war activists?

Some data points that might support Bush’s use of his illegal program against anti-war activists

Again, at this point, this is just a guess, one that would be thoroughly unsurprising but is not supported by hard facts.

But it’s worth remembering that Bush did roll out a domestic spying program to track anti-war activities, CIFA, the database for which was destroyed just weeks before NYT initially exposed Bush’s illegal program. We know there were ties between that program and heavy FBI investigations in the US. Then there’s the Antiwar investigation, started just weeks after the hospital confrontation, that used a counterterrorism purpose (a watchlist Antiwar posted) as the predicate to call for further investigation of Antiwar’s online publications, conducted in multiple cities. The Bush Administration was clearly conducting aggressive spying on anti-war activists, so it would be unsurprising to learn it used the threat of Iraqi involvement in the US to conduct illegal electronic surveillance.

Then there’s the suggestion in this NSA training program (from which the two slides above come — see this post for background) that NSA had a “present example” (in 2009) of an abuse akin to Project Minaret, in which a watchlist of citizens –largely critics of the Vietnam War — were surveilled in the name of tracking any foreign influence on them. Here’s Matthew Aid’s description of recent disclosures about that program.

As the Vietnam War escalated during Lyndon B. Johnson’s presidency, domestic criticism and protest movements abounded. Protesters surrounded the Pentagon in the fall of 1967 and two years later organized demonstrations and the Moratorium to End the War in Vietnam. The scale of the dissent angered Johnson as well as his successor, Richard Nixon. As fervent anti-communists, they wondered whether domestic protests were linked to hostile foreign powers, and they wanted answers from the intelligence community. The CIA responded with Operation Chaos, while the NSA worked with other intelligence agencies to compile watch lists of prominent anti-war critics in order to monitor their overseas communications. By 1969, this program became formally known as “Minaret.”

While the NSA slide describes the present example as “unauthorized targeting of suspected terrorists in the U.S.,” not targeting of anti-war activists, we know the collection shut down in March 2004 must have involved the targeting of people in the US based on a claim that some tie to Iraqi interests made them terrorists. Moreover, such targeting would be an exact parallel with Minaret (and while I haven’t discussed it yet, I am cognizant of Bernie Sanders’ recent questions about the targeting of members of Congress, as happened under Minaret and, for reasons explained in my earlier post, as the training program may allude to).

Again, I want to emphasize: this is just a wildarsed guess. though one consistent with what we know about Bush’s illegal program and his surveillance of anti-war activists generally.

Whatever it was, it was part of the package that almost led a bunch of DOJ officials to quit.

The Civil Liberties Celebration Hangover Wears Off

JusticePicAt the end of last week, I joked a little about privacy and civil liberties advocates having had the “best week ever”. It was indeed a very good week, but only relatively compared to the near constant assault on the same by the government. But the con is being put back in ICon by the Administration and its mouthpieces.

As I noted in the same post, Obama himself has already thrown cold water on the promise of his NSA Review Board report. Contrary to some, I saw quite a few positives in the report and thought it much stronger than I ever expected. Still, that certainly does not mean it was, or is, the particularly strong reform that is needed. And even the measures and discussion it did contain are worthless without sincerity and dedication to buy into them by the intelligence community and the administration. But if Obama on Friday was the harbinger of the walkback and whitewash of real reform, the foot soldiers are taking the field now to prove the point.

Sunday morning brought out former CIA Deputy Director Michael Morrell on CBS Face the Nation to say this:

I think that is a perception that’s somehow out there. It is not focused on any single American. It is not reading the content of your phone calls or my phone calls or anybody else’s phone calls. It is focused on this metadata for one purpose only and that is to make sure that foreign terrorists aren’t in contact with anybody in the United States.

Morrell also stated that there was “no abuse” by the NSA and that Ed Snowden was a “criminal” who has shirked his duties as a “patriot” by running. Now Mike Morrell is not just some voice out in the intelligence community, he was one of the supposedly hallowed voices that Barack Obama chose to consider “reform”.

Which ought to tell you quite a bit about what Barack Obama really thinks about true reform and your privacy interests. Not much. In fact, Morrell suggested (and Obama almost certainly agrees) that the collection dragnet should be expanded from telephony to also include email. Not exactly the kind of “reform” we had in mind.

Then, Sunday night 60 Minutes showed that fluffing the security state is not just a vice, but an ingrained habit for them. Hot on the heels of their John Miller blowjob on the NSA, last night 60 Minutes opened with a completely hagiographic puff piece on and with National Security Advisor Susan Rice. There was absolutely no news whatsoever in the segment, it was entirely a forum for Rice and her “interviewer”, Lesley Stahl, to spew unsupported allegations about Edward Snowden (He “has 1.5 million documents!”), lie about how the DOJ has interacted with the court system regarding the government surveillance programs (the only false statements have been “inadvertent”) and rehab her image from the Benghazi!! debacle. That was really it. Not exactly the hard hitting journalism you would hope for on the heels of a federal judge declaring a piece of the heart of the surveillance state unconstitutional.

Oh, yes, Susan Rice also proudly proclaimed herself “a pragmatist like Henry Kissinger which, as Tim Shorrock correctly pointed out, is not exactly reassuring from the administration of a Democratic President interested in civil liberties, privacy and the rule of law.

So, the whitewashing of surveillance dragnet reform is in full swing, let the giddiness of last week give way to the understanding that Barack Obama, and the Intelligence Community, have no intention whatsoever of “reforming”. In fact, they will use the illusion of “reform” to expand their authorities and power. Jonathan Turley noted:

Obama stacked the task force on NSA surveillance with hawks to guarantee the preservation of the program.

Not just preserve, but to give the false, nee fraudulent, patina of Obama Administration concern for the privacy and civil liberties concerns of the American citizenry when, in fact, the Administration has none. It is yet another con.

Or, as Glenn Greenwald noted:

The key to the WH panel: its stated purpose was to re-establish public confidence in NSA – NOT reform it.

There may be some moving of the pea beneath the shells, but there will be no meaningful reform from the administration of Barack Obama. The vehicle for reform, if there is to be one at all, will have to come from the Article III federal courts. for an overview of the path of Judge Leon’s decision in Klayman through the DC circuit, see this piece by NLJ’s Zoe Tillman.

Lastly, to give just a little hope after the above distressing content, I recommend a read of this excellent article by Adam Serwer at MSNBC on the cagy pump priming for surveillance reform Justice Sotomayor has done at the Supreme Court:

If Edward Snowden gave federal courts the means to declare the National Security Agency’s data-gathering unconstitutional, Sonia Sotomayor showed them how.

It was Sotomayor’s lonely concurrence in U.S. v Jones, a case involving warrantless use of a GPS tracker on a suspect’s car, that the George W. Bush-appointed Judge Richard Leon relied on when he ruled that the program was likely unconstitutional last week. It was that same concurrence the White House appointed review board on surveillance policy cited when it concluded government surveillance should be scaled back.

“It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” Sotomayor wrote in 2012. “This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”

Give the entire article a read, Adam is spot on. If there is to be reform on the surveillance dragnet, it will almost certainly have to be the handiwork of the courts, and Justice Sotomayor planted the seed. The constant barrage of truth and facts coming from the Snowden materials, what Jay Rosen rightfully terms “The Snowden Effect” is providing the food for Sotomayor’s seed to flower. Hopefully.

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