Jim Comey Lied When He Claimed FBI Needs a Judge to Read Your Email

I believe that Americans should be deeply skeptical of government power. You cannot trust people in power. The founders knew that. That’s why they divided power among three branches, to set interest against interest. — FBI Director Jim Comey

As part of a piece on James Risen’s stories, 60 Minutes did an interview with Jim Comey. It rehearsed his role in running up hospital steps in 2004 to prevent Andy Card from getting an ill John Ashcroft to rubber stamp illegal surveillance — without mentioning that Comey and the other hospital heroes promptly got the same program authorized by bullying the FISA Court. Trevor Timm called out this aspect of 60 Minutes’ report here.

CBS also permitted Comey to engage in Apple encryption fear-mongering without challenge. CNN, to its credit, called Comey on his misrepresentations here.

But perhaps Comey’s biggest stretcher came when Scott Pelley asked him whether FBI engages in surveillance without a court order.

Scott Pelley: There is no surveillance without court order?

James Comey: By the FBI? No. We don’t do electronic surveillance without a court order.

Scott Pelley: You know that some people are going to roll their eyes when they hear that?

James Comey: Yeah, but we cannot read your emails or listen to your calls without going to a federal judge, making a showing of probable cause that you are a terrorist, an agent of a foreign power, or a serious criminal of some sort, and get permission for a limited period of time to intercept those communications. It is an extremely burdensome process. And I like it that way.

Comey was admittedly careful to caveat his answer, stating that FBI does not engage in “electronic surveillance” without a court order. That probably excludes FBI’s use of National Security Letters. Though as DOJ’s Inspector General has made clear, FBI uses NSLs for a number of things — including communities of interest, obtaining one or possibly two degree collection of phone records, as well as a bunch of other things that remain redacted — that the NSL law didn’t envision. Indeed, FBI’s NSL requests have gotten so exotic that some Internet companies started to refuse — successfully — in 2009 to comply with the requests, forcing FBI to use Section 215 orders instead.

But the second part of that exchange — Comey’s claim that “we cannot read your emails without going to a federal judge” is egregiously false.

As both ODNI and PCLOB have made clear, FBI can and does query incidentally collected data obtained under Section 702 (PRISM) — that is, it accesses email content — without a warrant. Alarmingly, it does so at the assessment level, before FBI even has any real evidence of wrong-doing.

Second, whenever the FBI opens a new national security investigation or assessment, FBI personnel will query previously acquired information from a variety of sources, including Section 702, for information relevant to the investigation or assessment. With some frequency, FBI personnel will also query this data, including Section 702–acquired information, in the course of criminal investigations and assessments that are unrelated to national security efforts.

That’s not conducting electronic surveillance — because FBI gets the email after the electronic surveillance has already occurred. But that does entail warrantless access of US person content, and does so without any review by a judge. Indeed, with Section 702 collection, a judge never even reviews the foreign targets, much less the US incidental collection accessed by the FBI.

Now I get that Jim Comey is a terrifically charismatic guy, with great PR instincts. But still, 60 Minutes is supposed to be a journalism show. Why, when Comey was telling 60 Minutes straight out they should not trust the government, did they let him make so many bogus claims?

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The No Fly List and DOJ’s Notice Concessions

Congratulations to the ACLU, which last week got 6 of its 13 No Fly List plaintiffs moved off the No Fly List.

Seven American citizens who were banned by the government from air travel received word yesterday evening that they are cleared to fly. For them, the notice ends a years-long struggle to find out why they were blacklisted and clear their names. As of last night, the seven can finally make plans to visit family, travel for work, and take vacations abroad.

The seven – six men and one women – had been on the government No Fly List, which prevented them from flying to, from, and over U.S. airspace. Even after they were surrounded by TSA agents at the airport and questioned by the FBI, the government refused to officially confirm that they were included on the list. They were also never provided reasons for being banned from air travel, or given a meaningful opportunity to contest the ban. In short, our clients have been locked in a fight to regain their freedoms with virtually no information.

The notice that the seven are “not currently on the No Fly List” came after a federal court last week set deadlines for the government in the ACLU’s challenge to the No Fly List. The court ruled that the government must notify our clients of their status on or off the No Fly List, give reasons to those still on the list, and provide an opportunity for them to challenge those reasons. The first of those deadlines was yesterday, and the government must complete reconsideration of the remaining cases by January 16.

The remaining 6 (2 of whom, curiously, worked in the Middle East with tech companies) will now be given some kind of due process.

Which got me thinking about this Charlie Savage story from several weeks ago. It describes how, following DOJ’s recognition that it needs to give notice to some, but definitely not all of the people identified using Section 702, the government is now debating whether it needs to give those sanctioned by the Treasury notice under FISA. At the very end of the story, Savage notes that legal experts say DOJ may have to give notice to some on the No Fly List as well.

Legal specialists said the government could also be invoking arguments against providing a FISA notice even at the court stage, which is adversarial. It may say, for example, that Congress could not have intended the law to apply in situations where the recipients of the notice could not do anything with that information. For example, most foreigners abroad could not argue that the warrantless surveillance violated their rights — because the Constitution does not cover them — and so they could not ask to have the evidence suppressed.

Still, the experts said surveillance-derived information could affect Americans who did have constitutional rights, like the approximately 800 people placed on the “no fly” list, which prevents people from boarding aircraft, as well as applicants for licenses like those that allow people to work behind airport security checkpoints.

“Very significant decisions about people’s lives are made on this kind of evidence,” said Jameel Jaffer, an American Civil Liberties Union lawyer. “When all this takes place in secret, you don’t have an opportunity to challenge the constitutionality of the government’s surveillance methods.”

In June, a Federal District Court judge struck down the process for challenging being put on the “no fly” list, saying it was too opaque and violated Americans’ due-process rights. She ordered the government to give people more information about why they are on the list.

Which has me wondering: what may distinguish the 7 ACLU plaintiffs who were removed from the No Fly List from the 6 who remain on it is how they were identified. That is, the government can avoid giving notice simply by moving people off the list.

There is some reason to believe the government does use Section 702 data — and nothing more — to put people on the No Fly List. If that’s right, then the legal requirement that those affected get more notice may make the government more cautious about whom it places on the list.

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Is Someone Funding Saudi’s Oil Flood?

Iran, Venezuela, Algeria, Nigeria, Russia, Ecuador, Iraq, Angola. Those are the countries the budgets of which will face significant shortfalls if the Saudis succeed in their bid to drive the oil price down below $90/barrel for the year or more. Kuwait, the Emirates, Qatar — all Saudi partners (albeit reluctantly, in Qatar’s case) in whatever the hell it is doing — can afford the cuts, with Libya on the bubble.

New reports make it clear the Saudis intend to keep prices low for some time — and will force customers to lock in for a year.

Some, like Zero Hedge’s Tyler Durden, have suggested this ploy is part of the plan the US and Saudis made when the Saudis finally agreed to engage in combat against ISIL.

I’m not sure I buy that though. Cutting prices will make it far harder for Iraq’s Shia led government to invest in the fight against ISIL. So long as Western sanctions continue, it will destabilize Iran significantly, not only making it a lot harder for Iran to help Iraq and Syria, but also undermining the government that has chosen to deal with the US. The cuts will also destabilize Iran’s allies in Venezuela and Ecuador. Oligarchic forces have been trying to foment a coup in the former country for some time and this may well help to do so.

The cut, made just before winter strengthens Vladimir Putin’s hand with Ukraine and the rest of Europe, and made in such a way that may make Europe as dependent on the Saudis as they are on Russia, will make it harder for Putin to play the waiting game that otherwise was bound to achieve his objectives in Ukraine. Without that Ukrainian victory, Putin will be unable to invest resources as heavily in Bashar al-Assad’s government. The Saudis have been trying to undercut Russia for some time and — to the extent the ruble exchange with the dollar doesn’t shelter Russia from these changes [Update: though see Mark Adomanis on how this is hurting Russian consumers] — this price cut will hurt Russia too.

Ultimately, though, I suspect the US is just as much the target of this move as Iran and Russia are. Since the US refused to take out Assad last year and inched forward with its Iran deal, the Saudis have been worried about having Shia Iran and Iraq take over its role as the swing producer in the world, mirroring what happened in 1976 when the US replaced Iran’s Shah with the Saudis. By destabilizing the government in negotiations with the US, the price cut will make it a lot harder to achieve such a deal.

Just as importantly, the US is now a petro-state. And this price cut will make fracking (and deepwater drilling) unprofitable. We’ve been fracking largely to give ourselves some breathing room from the Saudis; cutting the price will make it far harder for us to sustain that effort (and will make some renewables uncompetitive).

To me, then, this move looks like part of an effort to force the outcome the Saudis have been chasing for a decade and even more aggressively since the Arab Spring: to paralyze Shia governments just as the chaos of ISIL threatens to remap the Middle East.

The Saudis may well claim to be supporting our fight against ISIL, but the long-term commitment to dropping oil prices, looks more like an effort to undercut it.

All that said, something remains unexplained here. The Saudi break-even point is $90/barrel. Oil prices are already below that and may drop still further. And the Saudis rely on bribery just as much as some other petro-states to keep their populace from rising up. How will the Saudis sustain this for a year or more, if that’s what they’re doing (especially since they are at least purportedly contributing to the ISIL fight)?

Saudis have low debt-to-GDP right now, so it may be they’ll just finance this play. But I wonder whether some cash rich Asian country has backed this move? What better way to end US hegemony than to ensure it gets sucked into another unwinnable war in the Middle East, wallowing in really cheap oil for the middle term, with the understanding that it will replace the US after the US exhausts itself with this latest Mideast adventure?

Sure, low oil prices might help Democrats retain the Senate. Low oil prices certainly will avoid any immediate backlash against the ISIL war. So it may well be this is part of a deal with the Obama Administration. But if so, it seems like a counterproductive deal, because it’s going to make it even harder to achieve any success against ISIL.

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Described Focus of Protest in Kabul Dependent on News Outlet

Khaama Press photo of Sunday's protest in Kabul.

Khaama Press photo of Sunday’s protest in Kabul.

A protest variously described as featuring “over a hundred”, “hundreds” or “over 500″ protesters took place in Kabul on Sunday. The object of the protest, however, was very dependent on whose report (or even whose headline) on the protest is being read.

The Wall Street Journal ran with the headline “Islamic State’s Siege of Kobani, Syria Sparks Protest in Kabul, Afghanistan” while Iran’s PressTV went with “Afghan protesters blast US-led forces, BSA”. Remarkably, Afghanistan’s Khaama Press did not see it necessary to spin the focus of the protest in a particular direction, using the headline “Afghans protest against Islamic State, US and NATO forces in Kabul”.

The Khaama Press article quickly sums up the protest:

Over 500 people participated in a demonstration against the Islamic State and presence of US and NATO forces in Afghanistan.

The protesters were shouting slogans against the presence of US and NATO forces in Afghanistan and in support of the Kurdish people who are fighting the Islamic State militants.

Protesters were also carrying signs purporting crimes committed by US and NATO forces in Afghanistan and resistance of the female Kurdish fighters against the Islamic State.

The US and NATO were also accused by protester for supporting the extremist groups in Afghanistan and Kobane.

We learn in the article that the protest was organized by the Solidarity party of Afghanistan, which Khaama described as “a small and left wing political party in the country”. Presumably, since they were allowed to stage the protest, the ban on the party issued in 2012 must have been lifted.

One has to read the Wall Street Journal article very carefully to find any evidence of the US criticism that was in the protest. The article opens:

Residents of Kabul have a war on their own doorstep: The provinces around the Afghan capital have seen an upsurge in violence this year.

But the conflict in Syria was on the minds of demonstrators who marched Sunday in solidarity with the town of Kobani, Syria, currently under siege by Islamic State militants.

Over a hundred Afghans—most of them women—held placards supporting Kurdish fighters defending the city.

Near the end, the article mentions, but dismisses as “conspiracy theory”, the accusations of US involvement in the creation of ISIS:

Conspiracy theories often thrive in Afghanistan, and at Sunday’s protest, many demonstrators expressed the belief that Islamic State was a U.S. creation. Some held placards saying, “Yankee Go Home.”

The article then mentions the BSA without stating that it was also a target of the protest other than citing the “Yankee Go Home” sign.

PressTV, on the other hand, focused exclusively on the anti-US aspects of the protest. In fact, the video accompanying their story does not match the photo that is used in the video frame while the video isn’t playing. The photo, which is full-frame, shows protesters somewhere burning an American flag, but the video itself-which appears to match the same event in the Khaama Press photo-only partially fills the frame and does not show any flag-burning. PressTV opens:

Afghan protesters have staged a rally in the streets of the nation’s capital, Kabul, to reiterate their opposition to the continued presence of US-led troops in the war-ravaged country.

Hundreds of demonstrators marched through the capital on Sunday to also express their outrage against the so-called Bilateral Security Agreement (BSA) signed by the newly-inaugurated President Ashraf Ghani Ahmadzai.

The protesters were reportedly carrying banners pointing to alleged crimes committed by US and NATO forces across Afghanistan

Remarkably, even though Iran is staunchly opposed to ISIS, the PressTV story makes no mention of the protest also being aimed against ISIS, or even of the accusations of a US role in the creation of ISIS.

Congratulations to Khaama Press for choosing to not spin a story that major outlets in the US and Iran used as propaganda pieces.

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A Remarkable Date for the Virgin Birth of the Silk Road Investigation

As Wired first reported, there’s been an interesting exchange in the Silk Road prosecution. In September, the former FBI Agent who helped to bust accused Silk Road operator Ross Ulbricht, Christopher Tarbell, submitted a declaration explaining the genesis of the investigation by claiming the FBI got access to the Silk Road server because it became accessible via a non-Tor browser. In response, Ulbricht lawyer Joshua Horowitz submitted a declaration claiming Tarbell’s claims were implausible because the FBI wouldn’t have been able to get into Silk Road’s back end. The government responded by claiming that even if it did hack the website, it would not have been illegal.

Given that the SR Server was hosting a blatantly criminal website, it would have been reasonable for the FBI to “hack” into it in order to search it, as anysuch “hack” would simply have constituted a search of foreign property known to contain criminal evidence, for which a warrant was not necessary .

On Friday, Judge Katherine Forrest rejected Ulbricht’s efforts to throw out the evidence from the alleged hack, accepting the government’s argument that Ulbricht had no expectation of privacy on that server regardless of when and how the government accessed it.

The temporal problems with the government’s story

Most of the coverage on this exchange has focused on the technical claims. But just as interesting are the temporal claims. Horowitz summarizes that problem this way:

[S]everal critical files provided in discovery contain modification dates predating the first date Agent Tarbell claims Icelandic authorities imaged the Silk Road Server, thereby casting serious doubt on the chronology and methodology of his account;

The government claims that server was first imaged on July 23,2013.

As I’ll lay out below, Horowitz and Tarbell provide a lot of details suggesting something — perhaps the imaging of the server, perhaps something more – happened six weeks earlier.

But before we get there, consider the date: June 6, 2013.

June 6, 2013 was the day after the afternoon publication of the first Snowden leak, and the day before the Guardian made it clear their leak included cyberwar materials.

That is, the FBI claims to have officially “found” the Silk Road server at the same time the Snowden leaks started, even while they date their investigation to 6 weeks later.

The June 6 materials

FBI’s Tarbell is much vaguer about this timing than Ulbricht’s team is. As Tarbell tells it, on some unknown date in early June 2013, he and a colleague were sniffing Silk Road data when they discovered an IP not known to be tied to Tor.

In or about early June 2013, another member of CY-2 and I closely examined the traffic data being sent from the Silk Road website when we entered responses to the prompts contained in the Silk Road login interface.

That led them to look further, according to Tarbell. When he typed the IP into a non-Tor browser, he discovered it was leaking.

When I typed the Subject IP Address into an ordinary (non-Tor) web browser, a part of the Silk Road login screen (the CAPTCHA prompt) appeared. Based on my training and experience, this indicated that the Subject IP Address was the IP address of the SR Server, and that it was “leaking” from the SR Server because the computer code underlying the login interface was not properly configured at the time to work on Tor.

That led the government to ask Iceland, on June 12, to image the server. Iceland didn’t do so, according to the official narrative, until the next month.

The defense doesn’t buy this — in part, because Tarbell claims he didn’t adhere to forensics standard procedure by keeping copies of his packet sniffing.

Failure to preserve packet logs recorded while investigating the Silk Road servers would defy the most basic principles of forensic investigative techniques.

[snip]

[T]he government’s position is that former SA Tarbell conducted his investigation of Silk Road, and penetrated the Silk Road Server, without documenting his work in any way.

According to the government, the only record of Tarbell’s access to the server from this period is from access logs dated June 11.

[A]n excerpt of 19 lines from Nginx access logs, attached hereto as Exhibit 5, supposedly showing law enforcement access to the .49 server from a non-Tor IP address June 11, 2013, between 16:58:36 and 17:00:40. According to the Government, this is the only contemporaneous record of the actions described by the Tarbell Declaration at ¶¶ 7-8.9

Given that this bears a particular date, I find it all the more curious that Tarbell doesn’t date when he was doing the packet sniffing.

There are a number of other details that point back to that June 6 date. Perhaps most significant is that Iceland imaged a server Silk Road had earlier been using on June 6.

There are a total of 4 tarballs in the first item of discovery: home, var, all, and orange21 – all contained in .tar.gz files. The mtime for orange21.tar.gz is consistent with the July 23, 2013 image date. However, the other 3 tarballs have an mtime of June 6, 2013, as shown below22:

  • root 30720 Jun 6 2013 home.tar.gz
  • root 737095680 Jun 6 2013 var.tar.gz
  • root 1728276480 Jun 6 2013 all.tar.gz
  • root 22360048285 Jul 23 2013 orange21.tar.gz

The modification date of the tarballs is consistent with an imaging date of June 6, 2013, a full six weeks before the July 23, 2013, imaging of the .49 Server, a fact never mentioned in the Tarbell Declaration.

Though — as the defense points out — Tarbell didn’t mention that earlier imaging. He notes an earlier “lead” on the Silk Road server that resolved by May, and he notes that after Ulbricht’s arrest they obtained record of him noting leaks in the server.

5 After Ulbricht’s arrest, evidence was discovered on his computer reflecting that IP address leaks were a recurring problem for him. In a file containing a log Ulbricht kept of his actions in administering the Silk Road website, there are multiple entries discussing various leaks of IP addresses of servers involved in running the Silk Road website and the steps he took to remedy them.  For example, a March 25, 2013 entry states that the server had been “ddosd” – i.e., subjected to a distributed denial of service attack, involving flooding the server with traffic – which, Ulbricht concluded, meant “someone knew the real IP.” The entry further notes that it appeared someone had “discovered the IP via a leak” and that Ulbricht “migrated to a new server” as a result. A May 3, 2013 entry similarly states: “Leaked IP of webserver to public and had to redeploy/shred [the server].” Another entry, from May 26, 2013, states that, as a result of changes he made to the Silk Road discussion forum, he “leaked [the] ip [address of the forum server] twice” and had to change servers.

[snip]

7 Several months earlier, the FBI had developed a lead on a different server at the same Data Center in Iceland (“Server-1”), which resulted in an official request for similar assistance with respect to that server on February 28, 2013. See Ex. B. Due to delays in processing the request, Icelandic authorities did not produce traffic data for Server-1 to the FBI until May 2013. See Ex. A. By the time the FBI received the Server-1 traffic data, there was little activity on Server-1, indicating that it was no longer hosting a website. (As a result, the FBI did not request that Icelandic authorities proceed with imaging Server-1.) There was still some outbound Tor traffic flowing from Server-1, though, consistent with it being used as a Tor node; yet Server-1 was not included in the public list of Tor nodes, see supra n.4. Based on this fact, I believed, by the time of the June 12 Request, that the administrator of Silk Road was using Server-1 as a Tor “bridge” when connecting to the SR Server, as indicated in the June 12 Request. See Ex. A, at 1. (A Tor “bridge” is a private Tor node that can be used to access the Tor network, as opposed to using a
public Tor node that could be detected on one’s Internet traffic. See Tor: Bridges, available at http://torproject.org/docs/bridges.) To be clear, however, the traffic data obtained for Server-1 did not reflect any connection to, or otherwise lead to the identification of, the Subject IP Address. The Subject IP Address was independently identified solely by the means described above – i.e., by examining the traffic data sent back from the Silk Road website when we interacted with its user login interface.

The two other details that point to June 6 may not actually exonerate Ulbricht. Silk Road’s live-ssl config file was altered on June 7, which is the earliest date for the site configuration provided in discovery (though page 23 has some additional dates).

The mtime for the live-ssl configuration file provided in Item 1 of discovery is June 7, 2013, and the phpmyadmin configuration is July 6, 2013.8

8 Since Item 1 is the oldest image provided in discovery the defense does not have site configuration data prior to June 7, 2013.

And, as Horowitz reiterates, the earliest date for which the defense was provided discovery of a server imaging was June 6.

According to the government, the earliest image was captured June 6, 2013, and the latest in November 2013.

From a technical stand point, I’m not sure what to make of this.

A remarkable coincidence

It’s clear, however, that FBI was tracking Silk Road well before June, and for some reason decided to make June the official start date (and, perhaps more significantly, official discovery start date; they’ve refused earlier discovery because it won’ t be used in trial) of their investigation. At the same time, it seems that Ulbricht’s defense seems reluctant to explain why they’re asking for earlier discovery; perhaps that’s because they’d have to admit Ulbricht was aware of probes of the website before then. Forrest rejected their argument because Ulbricht refused to submit a declaration that this was his server.

But I am rather struck by the timing. As I said, the first Edward Snowden story — the June 5, 2013 Verizon release that could have no tie to the Silk Road investigation and, the next day, the WaPo and Guardian PRISM releases (there were very late Google and Facebook requests that seem like parallel construction, but since Ulbricht is a US citizen, his communications should not have been available via PRISM) — was roughly the day before the day Iceland imaged the other server.

I asked both Glenn Greenwald and Bart Gellman, and it seems the earliest the government could have had official notice of that story may have been late on June 4 though probably June 5 (things get funny with the Guardian, apparently, because of Greenwich Mean Time). A more relevant leak to the Silk Road investigation was the President’s Policy Directive on cyberwar — which Guardian published on June 7 (they may not have warned the government until that morning however).

So it may all be one big coincidence – that the government created a virgin birth for the Silk Road investigation that happened to be the same day that a torrent of leaks on the NSA and GCHQ started, ultimately revealing things like the government’s targeting of the Tor network (just days after Ulbricht was arrested on October 2, 2013).

But it certainly seems possible that those investigating Silk Road felt the need to begin to roll up the investigation as that torrent of leaks started, perhaps worrying that the methods they (or GCHQ) were using might be exposed before they had collected the evidence.

Update: A few more points about this. My suspicion is that, if there is a tie between the Snowden leaks and the Silk Road investigation, it stems from the government’s recognition that some of the methods it used to find Ulbricht would become known through Snowden’s leaks, so it moved to establish an alternate means of discovery before Ulbricht might learn of those actual methods. As one example, recall that subsequent to Snowden’s leaks about XKeyscore, Jacob Appelbaum got information showing XKeyscore tracks those who use Tor. While there are a number of things it seems Ulbricht’s lawyers believe were parallel constructed (unnamed “law enforcement officers” got warrants for his Gmail and Facebook accounts in September), they most aggressively fought the use of a Title III Pen Register to track IP addresses personally associated with Ulbricht, also in September. It seems that would have been available via other means, especially XKeyscore, especially since by encrypting communication Ulbricht’s communications could be retained indefinitely under NSA’s minimization procedures.

Additionally, the language the government used to refuse information on a range of law enforcement and spying agencies sure sounds like they clean teamed this investigation.

The Government also objects to the unbounded definition of the term “government” set forth in the September 17 Requests. Specifically, the requests ask the prosecution to search for information within “not only the United States Attorney’s Office for the Southern District of New York, but also the Offices in all other Districts, any and all government entities and law enforcement agencies, including but not limited to the Federal Bureau of Investigation, Central Intelligence Agency, Drug Enforcement Administration, Immigration and Customs Enforcement Homeland Security Investigations, National Security Agency, and any foreign government and/or intelligence agencies, particularly those with which the U.S. has a cooperative intelligence gathering relationship, i.e., Government Communications Headquarters (“GCHQ”), the British counterpart to the NSA.”

Even in the Brady context, the law is clear that a prosecutor has a duty to learn only of “evidence known to . . . others acting on the government’s behalf in the case.”

The government is not denying they had other means to identify Ulbricht (nor is it denying that it worked with partners like GCHQ on this). Rather, it is just claiming that the FBI officers involved in this prosecution didn’t see those methods.

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Formula One and Football Trash Talk

Last week we opened up with discussion of the stunning announcements of Sebastian Vettel and Fernando Alonso to change teams for 2015. That was a titanic sized announcement the likes of arguably never seen before in F1, certainly not with so many races left on the calendar. All that was lead unto the Japanese Grand Prix at Suzuka, which unfortunately was scheduled at the same time a rather large typhoon was rolling in. The conditions were horrible on track, and in fact the first dozen or so laps were run at a crawl behind the safety car.

And then unspeakable tragedy struck Adrian Sutil went off course in his Sauber and a lap later, young Jules Bianchi went off at the same exact location and his Marussia car went into the side of and under a tractor crane present to remove Sutil’s car. frankly, it is so graphic that I am not going to embed it, but if you want to see it, it is here. It seems almost inconceivable that Bianchi survived, but he has, although his condition is grim and with serious head trauma.

The accident has cast a pall over this weekend’s inaugural Russian Grand Prix in Sochi. Team Marussia will run only a single car for the race, a dedication to a down teammate not seen since Damon Hill of Williams ran solo after the death of Aryton Senna 20 years ago. Bianchi is young, personable and a fantastic up and coming driving talent. Get well Jules.

Baseball is back, and there was yet another extra inning barnburner involving the Kansas City Royals last night, with the Royals pulling out the win – again – on the road in ten innings. Today is game two between the Royals and Orioles, and the start of the NLCS between San Francisco and St. Louis. MLB has been incredible this October.

Hey, who would have thought the road to the college football national championship would run through Starkville and the Mississippi state Bulldogs? But today it does as the second ranked Auburn Tigers come to town to face the third ranked Bulldogs. Mississippi State has beaten LSU and Texas A & M in back to back weeks. Can they beat Auburn too? Tall order, not so sure about that, but should be one heck of a game. The aforementioned Aggies host the ‘Ole Miss Rebels, and may be in danger of losing two in a row after a hot start. Two other games are huge, and in the Pac-12. Oregon at UCLA and USC at Arizona are both big games with huge post season implications.

In the pros, Dallas at Seattle looks like the best matchup of the weekend. Dallas is way better than people thought, and their defense and running game are really coming into their own. But Seattle at home is a tough hill to climb, don’t think the ‘Boys have enough juice for that. Giants at Eagles also could be decent. Giants have looked better last couple of weeks, but I will take Nick Foles over Bad Eli here. Pats at Bills, Steelers at Browns and Skins at Cardinals also may have interest.

What you have to talk about?

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Nobel Prize: The Surveillance Fight Remains Ahead of Us

This morning, the Nobel Prize awarded the Peace Price to Pakistani activist Malala Yousafzai.

In a piece published earlier this morning at Salon, I pointed out that so long as countries like Norway participate in the NSA’s dragnet, Edward Snowden will never get a Nobel Prize.

No European country but Russia has offered Snowden asylum, so it’s unlikely the Norwegians will do something just as likely to piss off the U.S. Numerous European countries, after all, play willing partners in America’s global dragnet. Europe — including Norway — are the spies Snowden warned us against.

But I also made a more important point.

Like Obama — who got a Nobel Prize well before he had delivered on his promises — the world community has not yet really acted on Edward Snowden’s invitation to reform.

Snowden has completed a courageous act, leaking a mother lode of documents revealing just how exposed we are to the NSA’s glare. He has continued to speak out, to the extent he is able from Russia.

But the response remains very much in flux. Across the world, it’s quite possible Snowden’s leaks provide more repressive government the excuse to crack down. Certainly America’s Five Eyes spying partners (in addition to the UK, New Zealand, Australia, and Canada) are doing so: all but Canada have passed or are passing expansive laws legalizing still more surveillance. Citizens — in Five Eyes countries and outside — have not yet seized the opportunity created by Snowden to roll back the dragnet. Even in the U.S., the only reform on offer, Patrick Leahy’s USA Freedom Act, worsens some aspects of spying while achieving the important goal of removing all Americans’ phone records from the government.

Snowden did a courageous thing by leaking the NSA’s secrets, and continues to engage, as possible, in constructive fashion. If the world responded well to those disclosures, it might lead to a more just world, one much safer for dissent and human relationships. But we — the rest of the world — have not yet delivered on that promise yet, and may not. So a prize for Snowden — no matter how important his actions — may yet reward the merehope of change, not real progress towards it.

The world’s relative inaction in response to Snowden’s warnings does not at all detract from Snowden’s courage. But it does mean it is far too early to conclude that we’ve used this opportunity Snowden gave us to reverse a dangerous dragnet.

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Moral Rectitude? No, John Brennan is a Honey Badger

A tweet yesterday by Arif Rafiq noted that there was a US drone strike in North Waziristan yesterday just a few hours before Pakistani Prime Minister Nawaz Sharif would visit a spot only 20 miles away. At the New York Times article Rafiq linked:

Prime Minister Nawaz Sharif of Pakistan visited a military camp in the tribal district of North Waziristan on Thursday in what was seen as a pointed show of support and an attempt to bolster his troubled relationship with the country’s top generals.

The rare visit by Mr. Sharif to the tribal belt came three months after the military launched a sweeping offensive against the Taliban in North Waziristan, a hub of Taliban and Qaeda activity.

/snip/

His visit to Miram Shah, the main town in North Waziristan, on Thursday showed Mr. Sharif standing staunchly behind the country’s generals. “Our courageous troops are fighting a difficult war against an invisible enemy,” he told soldiers. “This is a war for the survival of Pakistan.”

Pakistan’s military claims that 80 percent of North Waziristan has been wrested from the militants and that at least 1,000 militants have been killed in the offensive, known as Zarb-e-Azb, which started on June 15. The figures are impossible to independently verify because the area is out of bounds for most reporters.

According to Pakistan Today, Sharif was emphatic in claiming victory by Pakistan over the militants they were attacking in North Waziristan:

Praising Pakistan Army for the success of Operation Zarb-e-Azb, the prime minister said he visited areas of North Waziristan which used to be havens for terrorists but now the army had purged all anti-state elements from there.

Despite Sharif’s claim of total victory over the terrorists, the US obviously feels the job is not complete, as drone strikes this week have been heavy, including the strike Rafiq notes in the Times article as only 20 miles from where Sharif would visit a few hours later.

The beginning of this week was marked by observance of Eid-ul-Azha, but the religious holiday had no bearing on the timing of drone strikes by the CIA. This Express Tribune article notes that US drone strikes in North Waziristan killed five in the pre-dawn hours Monday, another five later on Monday, six early Tuesday, and another eight also on Tuesday.

And then as AP recounts, there were two separate attacks overnight Wednesday and Thursday that killed five more. Near the end of the Times article linked by Rafiq, we get the observation of how close in location and timing it was to Sharif’s visit:

In an unexpected turn, Mr. Sharif’s visit also had an unusual dimension in terms of his relationship with the United States. Hours before he arrived, an American drone fired a missile at a vehicle in Datta Khel, 20 miles west of the camp where Mr. Sharif visited. Four people were killed and two were wounded, a Pakistani security official said on the condition of anonymity.

Clearly, when it comes to drone strikes in Pakistan, John Brennan is a honey badger. He don’t care about religious holidays. He don’t care about the Pakistani military claiming to have established control of North Waziristan. He don’t care about the Prime Minister entering the area. John Brennan just don’t care.

Who ever heard of a honey badger with moral rectitude?

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USA Gag Freedom Act

As you likely know, there have been two developments with NSLs in the last few days. First, Twitter sued DOJ, on First Amendment grounds, to be able to publish how many NSLs and FISA orders it has received. And EFF argued before the 9th Circuit that the entire NSL statute should be declared unconstitutional.

These developments intersect with the USA Freedom Act in an interesting way. In the 9th Circuit, the Court (I believe this is Mary Murguia based on tweets from lawyers who were there, but am not certain) asked why Congress hasn’t just fixed the Constitutional problems identified in Doe v. Mukasey with NSL gag orders.

That set off DOJ Appellate lawyer Douglas Letter hemming and hawing in rather unspecific language (my transcription).

Mary Murguia: Have any measures been taken to Congress to try to change that reciprocal notice procedure, to make it legal as the 2nd Circuit suggested?

Douglas Letter: Your honor, my understanding is, and I’m a little hesitant to talk about this in this sense, as we know proposals can be made to Congress and who knows what will happen? The government is working on some, a, is working with Congressional staffers etcetera, we would hope that at some point we would have legislation. We do not as this point. I’m not, I’m not going to here make any predictions whether anything passes.

What Letter was talking about — bizarrely without mentioning it — was a provision addressing the unconstitutional NSL gags in USA Freedom Act.

The provision fixes one part of the NSLs by putting the onus on FBI to review every year whether gags must remain in place.

(3) TERMINATION.—

(A) IN GENERAL.—In the case of any request under subsection (b) for which a recipient has submitted a notification to the Government under section 3511(b)(1)(A) or filed a petition for judicial review under subsection (d)—

(i) an appropriate official of the Federal Bureau of Investigation shall, until termination of the nondisclosure requirement, review the facts supporting a nondisclosure requirement annually and upon closure of the investigation; and

(ii) if, upon a review under clause (i), the facts no longer support the nondisclosure requirement, an appropriate official of the Federal Bureau of Investigation shall promptly notify the wire or electronic service provider, or officer, employee, or agent thereof, subject to the nondisclosure requirement, and the court as appropriate, that the nondisclosure requirement is no longer in effect.

This would fix the problem identified by the 2nd Circuit.

Except that, bizarrely, it would require FBI to do what Letter represented to the Court FBI could not do — review the gags every year. Presumably, they assume so few providers will challenge the gag that they’ll be able to manage those few yearly reviews that would be required.

Which might be what this language is about.

(B) CLOSURE OF INVESTIGATION.—Upon closure of the investigation—

(i) the Federal Bureau of Investigation may petition the court before which a notification or petition for judicial review under subsection (d) has been filed for a determination that disclosure may result in the harm described in clause (i), (ii), (iii), or (iv) of paragraph (1)(B), if it notifies the recipient of such petition;

(ii) the court shall review such a petition pursuant to the procedures under section 3511; and

(iii) if the court determines that there is reason to believe that disclosure may result in the harm described in clause (i), (ii), (iii), or (iv) of paragraph (1)(B), the Federal Bureau of Investigation shall no longer be required to conduct the annual review of the facts supporting the nondisclosure requirement under subparagraph (A).

That is, in addition to fixing the constitutional problem with NSLs, USAF provides FBI way out of the supposedly onerous problem that fix requires, by establishing a way to get a permanent gag.

The NSL provisions in USAF have not gone totally unnoticed. Perhaps appropriately, one of the few public comments on it came from the EFF. It lumps it in with FBI’s exemption from reporting back door searches.

The FBI is exempt from Section 702 reporting, and the bill appears to provide a path for the FBI to get permanent gag orders in connection with national security letters.

And bill champion Kevin Bankston is acutely aware of the dynamic as well; after Twitter announced his suit he suggested this was a good reason to pass USAF.

Bankston NSL

 

Me, I’d rather let the courts work and get the leverage we might get that way.

Especially since it seems like FBI is more able to review yearly gag renewals that Letter told the court.

 

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The Executive Branch’s Vendetta against James Risen

Sorry for the silence today — I’ve been traveling. Meanwhile, this piece — talking about how insane the government’s pursuit of James Risen has been — was published over at the Nation.

We focused particularly in the number of top officials implicated in stories Risen published.

 But under strong pressure from White House officials—including some later implicated in the legally suspect program—Times editors delayed the story’s publication for over a year, until December 2005. The coverage won Risen and Lichtblau a Pulitzer Prize for “carefully sourced stories on secret domestic eavesdropping that stirred a national debate.” It was the kind of debate that the people running the US surveillance state had been desperate to avoid.

The belated publication of those stories came just before Risen brought out a book that contained reporting on the wiretap program and several other sinister initiatives under categories like “counterterrorism” and “counterproliferation.” On January 13, 2006, the week after Risen’s book State of War reached the stores, Attorney General Alberto Gonzales told a news conference that an investigation into the Times wiretap stories was under way and that “it’s too early to make decisions regarding whether or not reporters should go to jail.” Though not apparent at the time, facts later emerged to show that Gonzales was implicated in the illegal wiretapping that Risen exposed. (As White House counsel, Gonzales had authorized continued operation of the program after the Justice Department refused to do so.)

[snip]

Some high-ranking individuals have been mainstays in the continuation of policies that Risen exposed in his book. John Brennan—President Obama’s former counterterrorism czar and now CIA director—has been at notable cross-purposes with both Risen and Sterling for more than a decade. Brennan was a senior CIA official when the agency rolled out its torture program under Bush, which came under intense public scrutiny after the use of waterboarding was revealed in a May 13, 2004, front-page Times story with Risen as the lead reporter. And Brennan played a key role in the illegal wiretap program, overseeing the production of what personnel in the program called the “scary memos” intended to justify the domestic spying exposed by Risen.

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Emptywheel Twitterverse

JimWhiteGNV RT @samsteinhp: Nina Pham, the nurse diagnosed with Ebola, has had her clinical status upgraded from fair to good, per NIH statement
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bmaz @radleybalko @NACDL Hey, they may suck, but I will take this all day. And thank them for it.
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JimWhiteGNV RT @truthout: How a US and #IAEA Deception Haunts the Nuclear Talks http://t.co/FUzHua1ZII @GarethPorter #IranTalks #Iran
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emptywheel #ff @Krhawkins5 who's much more polite than me when she's being exasperated on Administration's torture coverup.
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emptywheel RT @Krhawkins5: 3. The @CIA goes into full irony-is-dead mode and accuses Senate staff of conducting "inquisition." What, they used the wat…
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bmaz RT @radleybalko: This ought to confuse some people: @NACDL gets big grant from the Koch Bros. to address the indigent defense crisis. http:…
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bmaz @steve_meissner @MatthewWBenson @yvonnewingett @dougducey @FredDuVal I am already familiar, but thank you.
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bmaz @steve_meissner @MatthewWBenson @yvonnewingett @dougducey @FredDuVal And very much hope I am wrong.
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bmaz @steve_meissner @MatthewWBenson @yvonnewingett @dougducey @FredDuVal Ha! Well, as you said, is pure spec, but right now I'd bet Ducey by 3-4
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bmaz @steve_meissner @MatthewWBenson @yvonnewingett @dougducey @FredDuVal Oh, my mind far from closed, just how it feels. And I'm Duval supporter
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bmaz RT @dangillmor: Jill Abramson calls American Ebola "coverage" what it is: disgraceful. http://t.co/vran7SNsyo
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bmaz RT @ryangrim: HuffPost debut story for @AliWatkins, revealing the hands-on role of Denis McDonough in redacting the torture report http://t…
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