As part of my ongoing focus on Executive Order 12333, I’ve been reviewing how the Bush Administration changed the EO when, shortly after the passage of the FISA Amendments Act, on July 30, 2008, they rolled out a new version of the order, with little consultation with Congress. Here’s the original version Ronald Reagan issued in 1981, here’s the EO making the changes, here’s how the new and improved version from 2008 reads with the changes.
While the most significant changes in the EO were — and were billed to be — the elaboration of the increased role for the Director of National Intelligence (who was then revolving door Booz executive Mike McConnell), there are actually several changes that affected NSA.
Perhaps the most striking of those is that, even while the White House claimed “there were very, very few changes to Part 2 of the order” — the part that provides protections for US persons and imposes prohibitions on activities like assassinations — the EO actually replaced what had been a prohibition on the dissemination of SIGINT pertaining to US persons with permission to disseminate it with Attorney General approval.
The last paragraph of 2.3 — which describes what data on US persons may be collected — reads in the original,
In addition, agencies within the Intelligence Community may disseminate information, other than information derived from signals intelligence, to each appropriate agency within the Intelligence Community for purposes of allowing the recipient agency to determine whether the information is relevant to its responsibilities and can be retained by it.
The 2008 version requires AG and DNI approval for such dissemination, but it affirmatively permits it.
In addition, elements of the Intelligence Community may disseminate information to each appropriate element within the Intelligence Community for purposes of allowing the recipient element to determine whether the information is relevant to its responsibilities and can be retained by it, except that information derived from signals intelligence may only be disseminated or made available to Intelligence Community elements in accordance with procedures established by the Director in coordination with the Secretary of Defense and approved by the Attorney General.
Given that the DNI and AG certified the minimization procedures used with FAA, their approval for any dissemination under that program would be built in here; they have already approved it! The same is true of the SPCMA — the EO 12333 US person metadata analysis that had been approved by both Attorney General Mukasey and Defense Secretary Robert Gates earlier that year. Also included in FISA-specific dissemination, the FBI had either just been granted, or would be in the following months, permission — in minimization procedures approved by both the DNI and AG — to conduct back door searches on incidentally collected US person data.
In other words, at precisely the time when at least 3 different programs expanded the DNI and AG approved SIGINT collection and analysis of US person data, EO 12333 newly permitted the dissemination of that information.
And a more subtle change goes even further. Section 2.5 of the EO delegates authority to the AG to “approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes.” In both the original and the revised EO, that delegation must be done within the scope of FISA (or FISA as amended, in the revision). But in 1981, FISA surveillance had to be “conducted in accordance with that Act [FISA], as well as this Order,” meaning that the limits on US person collection and dissemination from the EO applied, on top of any limits imposed by FISA. The 2008 EO dropped the last clause, meaning that such surveillance only has to comply with FISA, and not with other limits in the EO.
That’s significant because there are at least three things built into known FISA minimization procedures — the retention of US person data to protect property as well as life and body, the indefinite retention of encrypted communications, and the broader retention of “technical data base information” — that does not appear to be permitted under the EO’s more general guidelines but, with this provision, would be permitted (and, absent Edward Snowden, would also be hidden from public view in minimization procedures no one would ever get to see).
Jeff Stein has a troubling scoop that both the Government Accountability Project and POGO have been burgled — POGO in recent weeks and GAP several years ago.
The POGO break-in seems of lesser concern, because they don’t appear to have taken anything — though Stein notes that POGO was involved in releasing the DOD IG Report that revealed CIA’s close ties to Zero Dark Thirty (and, because some dirty fucking hippie pointed it out, that William McRaven ordered Osama bin Laden photos “destroyed immediately” when Judicial Watch FOIAed them).
POGO is also relentless in its documentation of the waste of the F-35 program.
The GAP break-in occurred back in January 2011.
In the Jan. 6, 2011 incident, the burglars seemed interested in just a few of the computers among the dozen or so in the office. Of the six stolen, two belonged to GAP’s national security attorneys, and one to its legal director, according to GAP President Louis Clark. No culprits have been arrested.
Jesselyn Radack, the director of GAP’s National Security and Human Rights Program, is a legal adviser to Snowden.
This was the period when the WikiLeaks investigation was heating up, as was the Jeffrey Sterling prosecution. Several months later, Thomas Drake would get his plea deal.
In addition, in recent months, someone has been trying to deal GAP classified documents.
In the months since the group’s association with the fugitive leaker began, Clark said, “We have had a highly suspicious person twice try to give us so-called ‘classified’ documents.” Because the group is not a news organization, accepting classified documents could leave it open to prosecution.
It’s not surprising that weird stuff is happening to Raddack’s organization as she assist Snowden. But this does seem like a setup.
Update: Via Twitter Radack made it clear the break in to GAP was during the Thomas Drake case.
Two pieces of news on the government’s investigation of WikIleaks came out yesterday.
At the Intercept, Glenn Greenwald reported:
Also yesterday, Alexa O’Brien reported (and contextualized with links back to her earlier extensive reporting):
Now, as O’Brien lays out in her post, at various times during the investigation of WikiLeaks, it has been called a Computer Fraud and Abuse investigation, an Espionage investigation, and a terrorism investigation.
Which raises the question why, long after DOJ had deemed the WikiLeaks case a national security case that under either the terrorism or Espionage designation would grant them authority to use tools like National Security Letters, they were still using subpoenas that were getting challenged and noticed to Appelbaum? Why, if they were conducting an investigation that afforded them all the gagged orders they might want, were they issuing subpoenas that ultimately got challenged and exposed?
Before you answer “parallel construction,” lets reconsider something I’ve been mulling since the very first Edward Snowden disclosure: the secret authority DOJ and FBI (and potentially other agencies) used to investigate not just WikiLeaks, but also WikiLeaks’ supporters.
Back in June 2011, EPIC FOIAed DOJ and FBI (but not NSA) for records relating to the government’s investigation of WikiLeaks supporters.
EPIC’s FOIA asked for information designed to expose whether innocent readers and supporters of WikiLeaks had been swept up in the investigation. It asked for:
- All records regarding any individuals targeted for surveillance for support for or interest in WikiLeaks;
- All records regarding lists of names of individuals who have demonstrated support for or interest in WikiLeaks;
- All records of any agency communications with Internet and social media companies including, but not limited to Facebook and Google, regarding lists of individuals who have demonstrated, through advocacy or other means, support for or interest in WikiLeaks; and
- All records of any agency communications with financial services companies including, but not limited to Visa, MasterCard, and PayPal, regarding lists of individuals who have demonstrated, through monetary donations or other means, support or interest in WikiLeaks. [my emphasis]
In their motion for summary judgment last February, DOJ said a lot of interesting things about the records-but-not-lists they might or might not have and generally subsumed the entire request under an ongoing investigation FOIA exemption.
Most interesting, however, is in also claiming that some statute prevented them from turning these records over to EPIC, they refused to identify the statute they might have been using to investigate WikiLeaks’ supporters.
All three units at DOJ — as reflected in declarations from FBI’s David Hardy, National Security Division’s Mark Bradley, and Criminal Division’s John Cunningham – claimed the files at issue were protected by statute.
None named the statute in question. All three included some version of this statement, explaining they could only name the statute in their classified declarations.
The FBI has determined that an Exemption 3 statute applies and protects responsive information from the pending investigative files from disclosure. However, to disclose which statute or further discuss its application publicly would undermine interests protected by Exemption 7(A), as well as by the withholding statute. I have further discussed this exemption in my in camera, ex parte declaration, which is being submitted to the Court simultaneously with this declaration
In fact, it appears the only reason that Cunningham submitted a sealed declaration was to explain his Exemption 3 invocation.
And then, as if DOJ didn’t trust the Court to keep sealed declarations secret, it added this plaintive request in the motion itself.
Defendants respectfully request that the Court not identify the Exemption 3 statute(s) at issue, or reveal any of the other information provided in Defendants’ ex parte and in camera submissions.
DOJ refuses to reveal precisely what EPIC seems to be seeking: what kind of secret laws it is using to investigate innocent supporters of WikiLeaks.
Invoking a statutory exemption but refusing to identify the statute was, as far as I’ve been able to learn, unprecedented in FOIA litigation.
The case is still languishing at the DC District.
I suggested at the time that the statute in question was likely Section 215; I suspected at the time they refused to identify Section 215 because they didn’t want to reveal what Edward Snowden revealed for them four months later: that the government uses Section 215 for bulk collection.
While they may well have used Section 215 (particularly to collect records, if they did collect them, from Visa, MasterCard, and PayPal — but note FBI, not NSA, would have wielded the Section 215 orders in that case), they couldn’t have used the NSA phone dragnet to identify supporters unless they got the FISC to approve WikiLeaks as an associate of al Qaeda (update: Or got someone at NSA’s OGC to claim there were reasons to believe WikiLeaks was associated with al Qaeda). They could, however, have used Section 215 to create their own little mini WikiLeaks dragnet.
But I wanted to note how it begins.
Unless the public is really tiring of matters Snowden, the New York Times’s latest is going to stir up the hornet’s nest. “Spying by N.S.A. Ally Entangled U.S. Law Firm,” blares the headline of the story by reporter James Risen and freelancer Laura Poitras—from whom the Times (which insists it never pays for information) sometimes procures Snowden-leaked documents and to whom it gives a byline when it does so. [my emphasis]
The apparent subtext here is that the NYT is paying Laura Poitras not to do journalism on a story she has covered in depth for the last 8 months, but instead for access to documents in her possession (or to use Mike Rogers’ formulation, Poitras is fencing stolen property).
The comment is odd not just because Wittes has not (as far as I know) complained that the NYT also got (or may have in this case — I frankly don’t claim to know these arrangements) Snowden documents directly from the Guardian in a necessary attempt to bypass the UK’s crackdown on press freedom.
Odder still, according to Wittes’ Brookings bio, he worked as a professional journalist for at least a decade, both as a WaPo staffer and as an independent contributor.
Between 1997 and 2006, he served as an editorial writer for The Washington Post specializing in legal affairs. Before joining the editorial page staff of The Washington Post, Wittes covered the Justice Department and federal regulatory agencies as a reporter and news editor at Legal Times. His writing has also appeared in a wide range of journals and magazines including The Atlantic, Slate, The New Republic, The Wilson Quarterly, The Weekly Standard, Policy Review, and First Things.
Therefore I assume he is familiar with the tradition in journalism that when someone reports — even (especially) for a major newspaper as a freelancer — one gets paid.
Except he seems to want to make an exception just in this one case so as to insinuate certain things about Poitras’ reporting.
I do hope all of Wittes’ reporter friends remind him that their profession is still … a profession, and that equating professional journalism with crime sort of puts a damper on the whole freedom of the press thing, not to mention their claim that they should be compensated for their labor.
Disclosure: Obviously, with my affiliation with First Look Media, I do have a tie with Poitras (though not with this story). As an EW post, however, this post has no tie to First Look, and I have talked to neither Poitras nor anyone else at First Look before writing it.
Update: Wittes explains himself at length here (though the *@^$&*# hackers have brought Lawfare down again). It seems Wittes is nostalgic for the time when newspapers and the government had such a cozy relationship the NYT could lie us into catastrophic war in the service of the government.
I confess that I’m troubled by the power dynamics at work—for reasons that I’m sure will not endear me to my Twitter critics: I believe in institutional media. I believe in editors. And while I also deeply believe in the proliferation of voices that new media has enabled, I don’t like it that Greenwald, Gellman, and Poitras have such enormous leverage against big media organizations which I expect to make responsible publishing decisions. Put simply, I am uncomfortable with the unaccountable power that this arrangement gives people like Poitras over organizations like the New York Times.
Maybe I have a sick sense of humor.
But I laughed at the irony of this NYT story about how Edward Snowden used a web-crawler to scrape data from the NSA’s servers.
In paragraphs 28 and 29 (of 29), Defense Intelligence Agency head Michael Flynn admits what he has avoided admitting in public hearings: he has no fucking clue what Snowden took.
The head of the Defense Intelligence Agency, Lt. Gen. Michael T. Flynn, told lawmakers last week that Mr. Snowden’s disclosures could tip off adversaries to American military tactics and operations, and force the Pentagon to spend vast sums to safeguard against that. But he admitted a great deal of uncertainty about what Mr. Snowden possessed.
“Everything that he touched, we assume that he took,” said General Flynn, including details of how the military tracks terrorists, of enemies’ vulnerabilities and of American defenses against improvised explosive devices. He added, “We assume the worst case.”
DOD doesn’t actually know what Snowden took. They know he had access to a bunch of files on military operations.
But that leaves open the question of how Mr. Snowden chose the search terms to obtain his trove of documents, and why, according to James R. Clapper Jr., the director of national intelligence, they yielded a disproportionately large number of documents detailing American military movements, preparations and abilities around the world.
But DOD doesn’t know whether he just touched them, or took them with him. It doesn’t know whether he deleted any he took before turning them over to journalists.
For his part, Snowden says DOD’s claims he deliberately took military information are unfounded.
In his statement, Mr. Snowden denied any deliberate effort to gain access to any military information. “They rely on a baseless premise, which is that I was after military information,” Mr. Snowden said.
Snowden suggests any military information he got, he got incidentally. DOD will just have to trust him.
Nevertheless, DOD will assume the worst because that’s the only way to protect DOD equities — and indeed, the lives of our military service members (that is, if Flynn’s claims are true; given his track record I don’t necessarily believe they are).
The necessity of protecting people and secret plans because of a potential risk is actually not funny at all. Indeed, it points to the problem inherent with bulk collection conducted in secret: Those potentially targeted by it have to assume the worst to protect themselves.
Mind you, if Sam Alito were a fair and balanced kind of guy, he’d tell DOD to suck it up. The risk of this bulk collection inflicting harm on military operations is speculative.
Respondents’ claim of future injury is too speculative to establish the well-established requirement that certain injury must be “certainly impending.”
But I think Alito is wrong. I definitely don’t fault DOD for adjusting to potential risks given the lack of certainty over which of their most sensitive secrets bulk collection has compromised.
If it is a problem that Snowden touched or maybe even incidentally collected data that could cause DOD great harm — if it is understandable that DOD would assume and prepare for the worst — then NSA needs to shut down its own indiscriminate scraping of data from all over the world. Because it is imposing the same kinds of risk and costs and worries to private individuals all over the world.
Update: Eli Lake got sources who received DIA’s briefing on their Snowden report to distinguish between what DIA knows and what they’re just assuming.
Just when Kevin Drum declared the “Friday News Dump” dead, comes proof news of said death was greatly exaggerated.
As Josh Gerstein and others have reported, the plea will be entered this afternoon:
Under the terms of the agreement, Kim will plead guilty to a single felony count of disclosing classified information to Rosen in June 2009, and serve a 13-month prison sentence. Judge Colleen Kollar-Kotelly would have to accept the sentence or reject it outright?, in which case Kim could withdraw his plea. Kim would also be on supervised release for a year, but would pay no fine.
Judge Kollar-Kotelly is expected to accept the guilty plea at today’s hearing, but will not impose a sentence until sometime later.
Well, that is kind of a big deal dropped out of nowhere on a Friday afternoon.
As you may recall, this is the infamous case where the Obama/Holder DOJ was caught classifying a journalist, James Rosen of Fox News, as an “aider and abettor” of espionage. As the Washington Post reported, the scurrilous allegation was clear as day in a formal warrant application filed as an official court document:
“I believe there is probable cause to conclude that the contents of the wire and electronic communications pertaining to the SUBJECT ACCOUNT [the gmail account of Mr. Rosen] are evidence, fruits and instrumentalities of criminal violations of 18 U.S.C. 793 (Unauthorized Disclosure of National Defense Information), and that there is probable cause to believe that the Reporter has committed or is committing a violation of section 793(d), as an aider and abettor and/or co-conspirator, to which the materials relate,” wrote FBI agent Reginald B. Reyes in a May 28, 2010 application for a search warrant.
The search warrant was issued in the course of an investigation into a suspected leak of classified information allegedly committed by Stephen Jin-Woo Kim, a former State Department contractor, who was indicted in August 2010.
The Reyes affidavit all but eliminates the traditional distinction in classified leak investigations between sources, who are bound by a non-disclosure agreement, and reporters, who are protected by the First Amendment as long as they do not commit a crime.
As evidence of Mr. Rosen’s purported culpability, the Reyes affidavit notes that Rosen and Kim used aliases in their communications (Kim was “Leo” and Rosen was “Alex”) and in other ways sought to maintain confidentiality.
“From the beginning of their relationship, the Reporter asked, solicited and encouraged Mr. Kim to disclose sensitive United States internal documents and intelligence information…. The Reporter did so by employing flattery and playing to Mr. Kim’s vanity and ego.”
“Much like an intelligence officer would run an [sic] clandestine intelligence source, the Reporter instructed Mr. Kim on a covert communications plan… to facilitate communication with Mr. Kim and perhaps other sources of information.”
Of course, the fully justifiable uproar over the Rosen treatment by DOJ eventually led to “new guidelines”, being issued by the DOJ. The new guidelines are certainly a half step in the right direction, but wholly unsatisfactory for the breadth and scope of the current Administration’s attack on the American free press.
But now the case undergirding the discussion in the Stephen Kim case will be shut down, and the questions that could play out in an actual trial quashed. All nice and tidy!
Frankly, I have mixed emotions about the reported Kim plea itself. It is, all in all, a pretty good deal for Kim and his attorney, the great Abbe Lowell. The case is done, bad precedent does not get etched into a jury verdict and appeal, and the nightmare has an end in sight for the defendant, Stephen Kim. All things considered, given the seriousness of the espionage and false statement charges in the indictment, 13 months is a good outcome. And it is not a horrible sentence to have as a yardstick for other leakers (were I Ed Snowden and Ben Wizner, I would like this result). By the same token, the damage done by the ridiculous antics and conduct of the DOJ in getting to this point is palpable. It will leave a stain that won’t, and shouldn’t, go away.
That still leaves the matter of Jeffrey Sterling, and reporter James Risen, though. Whither DOJ on that? And it is an important question since the much ballyhooed and vaunted “New Media Policies” announced by DOJ left wide open the ability to force Risen (and others that may some day be similarly situated) to testify about his sources of face jail for contempt.
In today’s HJC hearing on the NSA, there was extensive discussion about the risks of outsourcing the dragnet to the telecoms or — especially, to a third party holding all the data. It’s a concern I share.
That said, not a single person at the hearing seemed to be aware of this footnote, which has been in the phone dragnet primary orders since at least last April.
5 For purposes of this Order, “National Security Agency” and “NSA personnel” are defined as any employees of the National Security Agency/Central Security Service (“NSA/CSS” or “NSA”) and any other personnel engaged in Signals Intelligence (SIGINT) operations authorized pursuant to FISA if such operations are executed under the direction, authority, or control of the Director, NSA/Chief, CSS (DIRNSA).
If this language left any doubt that it permits contractors to directly query the database of every single phone-based relationship in the US, this language from Dianne Feinstein’s Fake FISA Fix bill report (which aims to codify the status quo) should eliminate them.
The Committee believes that, to the greatest extent practicable, all queries conducted to the authorities established under this section should be performed by Federal employees. Nonetheless, the Committee acknowledges that it may be necessary in some cases to use contractors to perform such queries. By using the term “government personnel” the Committee does not intend to prohibit such contractor use.
Contractors already have access to the dragnet.
If it presents a security threat to have contractors from Booz Allen Hamilton or some other intelligence contractor to have direct access to the dragnet, then we need to shut the dragnet down.
Because they’ve already got it.
Remember DOJ’s efforts to placate journalists (rather stunningly, in retrospect, rolled out a month after the first Edward Snowden leaks)?
As I noted at the time, DOJ’s new protections for the press applied not to the act of journalism, but rather to members of the news media. DOJ’s own Domestic Investigations and Operations Guide requires institutional affiliation before they’ll treat someone as a journalist.
“News media” includes persons and organizations that gather, report or publish news, whether through traditional means (e.g., newspapers, radio, magazines, news service) or the on-line or wireless equivalent. A “member of the media” is a person who gathers, reports, or publishes news through the news media.
As the term is used in the DIOG, “news media” is not intended to include persons and entities that simply make information available. Instead, it is intended to apply to a person or entity that gathers information of potential interest to a segment of the general public, uses editorial skills to turn raw materials into a distinct work, and distributes that work to an audience, as a journalism professional. [my emphasis]
According to the DOJ, then, you have to get paid (preferably by an institution recognized to be a press) to be afforded heightened First Amendment protection as a journalist.
Except now House Intelligence Chair Mike Rogers wants to criminalize that — one of the main things that warrants you protection by DOJ as a journalist, getting paid — by calling it “fencing stolen material.”
REP. ROGERS: You — there have been discussions about selling of access to this material to both newspaper outlets and other places. Mr. Comey, to the best of your knowledge, is fencing stolen material — is that a crime?
DIRECTOR JAMES COMEY: Yes, it is.
REP. ROGERS: And would be selling the access of classified material that is stolen from the United States government — would that be a crime?
DIR. COMEY: It would be. It’s an issue that can be complicated if it involves a news-gathering and news promulgation function, but in general, fencing or selling stolen property is a crime.
REP. ROGERS: So if I’m a newspaper reporter for — fill in the blank — and I sell stolen material, is that legal because I’m a newspaper reporter?
REP. ROGERS: And if I’m hocking stolen classified material that I’m not legally in possession of for personal gain and profit, is that not a crime?
DIR. COMEY: I think that’s a harder question because it involves a news-gathering functions — could have First Amendment implications. It’s something that probably would be better answered by the Department of Justice.
REP. ROGERS: So entering into a commercial enterprise to sell stolen material is acceptable to a legitimate news organization?
DIR. COMEY: I’m not sure I’m able to answer that question in the abstract.
REP. ROGERS: It’s something we ought to think about, is it not?
DIR. COMEY: Certainly.
So you’re not a journalist (and get no protections) if you don’t get paid. But if you do get paid, you’re fencing stolen property.
I do hope the traditional press recognizes the danger in this stance.
According to LAT’s Ken Dilanian, it is the “official position” of the US government that some kinds of hacking are “permissible.”
The official U.S. position — that governments hacking governments for military and other official secrets is permissible, but governments hacking businesses for trade secrets is not — is a tougher sell these days.
He makes the claim in an article that originally claimed Edward Snowden’s leaks have set back cybersecurity efforts, but then had to issue a correction acknowledging CISPA probably wasn’t going to happen anyway.
An article in the Feb. 2 Section A on the effects of Edward Snowden’s leaks of National Security Agency secrets said the White House backed the Cyber Intelligence Sharing and Protection Act, a cybersecurity measure. The White House threatened to veto the proposed bill in April. —
I take from this correction that Dilanian was fairly uncritically repeating the claims of NSA boosters — as other reporters have credulously repeated claims about the way Snowden’s leaks will affect cybersecurity initiatives.
Which is why I find his description of this “official position” so interesting.
I’m not aware of the US endorsing any official (public) policy on the kinds of hacks NSA (and CyberCommand) are permitted. Congress has tried to put some limits on it — or at least get briefing on it. And Keith Alexander successfully fought for a lot more autonomy over the hacks he could do.
The Executive does, however, have an official policy on SIGINT: President Obama’s recent Presidential Policy Directive. But a SIGINT official position and a hacking policy are not necessarily the same thing. While hacking is one way we collect SIGINT (though I don’t think NSA has admitted to that), we also conduct hacking for offensive purposes.
Even assuming they were the same thing, Dilanian’s characterization would be a misstatement of the policy in any case.
The actual policy permits the collection of SIGINT for broadly defined foreign intelligence purposes.
Thus, ” foreign intelligence ” means ” information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations, foreign persons, or international terrorists,
Of course, corporations are, under US law, both “organizations” and “persons,” so this definition permits spying on foreign corporations (other intelligence documents lay this out explicitly).
And the PPD does permit the collection of foreign private commercial information to protect US and allies’ national security.
The collection of foreign private commercial information or trade secrets is authorized only to protect the national security of the United States or its partners an d allies. It is not an authorized foreign intelligence or counterintelligence purpose to collect such information to afford a competitive advantage 4 to U.S. companies and U.S. business sectors commercially.
This is, frankly, where our hypocrisy on hacking (and SIGINT) begins to fall apart, given that China would maintain that stealing our military (and energy and tech) secrets are a matter of national security, and the fact that our government maintains more nominal separation from the companies that develop such things than China does should not shield those companies from spying.
And then, finally, the limits on data collection don’t apply when the NSA is working to develop SIGINT capabilities.
it shall not apply to signals intelligence activities undertaken to test or develop signals intelligence capabilities.
Given that some of our alleged hacking seems to support efforts to develop new hacking capabilities, this exception could prove infinitely recursive, especially given the rules on information collection in the name of cyberdefense and attacks. And of course, when we exploited Siemens’ SCADA industrial control systems to attack Iran, we used a corporate competitor’s trade secrets in the name of national security.
That is, even ignoring how America’s self-interested standard simply defines our national security in terms that legitimize our own hacking, when you get into the interaction of our intelligence to hack which serves to collect intelligence, the rules on SIGINT basically fall apart.
But hey. If the US says hacking of official government secrets is “permissible,” then maybe DOJ will withdraw the charges against Edward Snowden?
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.