On several occasions, I have pointed to the arbitrary system our classification system constructs. It asks government employees to spy on their colleagues. It permits agencies to conduct fishing expeditions into personal information as part of the polygraph process. It permits Agencies to selectively approve propaganda under the guise of pre-publication review (most notably in the case of Jose Rodriguez and John Rizzo). By stripping sensitive unclassified jobs of their Merit Board protection, even lower level staffers who don’t receive a clearance-related income boost are now subject to this arbitrary system. And Congress even tried to use pensions as another leverage point against cleared personnel.
The arbitrary nature of this system is perhaps most clear, however, when it comes to prosecutions.
Which is a point John Kiriakou made in an op-ed yesterday. In it, he suggests Leon Panetta and James Cartwright could be sitting next to him in Loretto Prison.
The [Espionage Act] states: “Whoever, lawfully having possession of, access to, control over, or being entrusted with any … information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates … the same to any person not entitled to receive it … shall be fined under this title or imprisoned not more than 10 years, or both.”
A transcript obtained by the organization Judicial Watch shows that, at a CIA awards ceremony attended by Boal, Panetta did exactly that. The CIA seems to acknowledge that Panetta accidentally revealed the name of the special forces ground commander who led the operation to kill Osama bin Laden, not knowing that the Hollywood screenwriter was part of an audience cleared to hear him speak. But intent is not relevant to Espionage Act enforcement.
U.S. District Court Judge Leonie Brinkema ruled in my case that evidence of the accidental release of national defense information was inadmissible, and she added that the government did not have to prove that a leak of classified information actually caused any harm to the United States. In other words, the act of disclosing the kind of broad information covered by the Espionage Act is prosecutable regardless of outcome or motive.
The sensitivity of what Panetta revealed is not in question. The spokesman for the former CIA director said Panetta assumed that everyone present at the time of the speech had proper clearance for such a discussion. When the transcript of the speech was released, more than 90 lines had been redacted, implying that Panetta had disclosed a great deal more classified information than the name of an operative.
If an intent to undermine U.S. national security or if identifiable harm to U.S. interests are indeed not relevant to Espionage Act enforcement, then the White House and the Justice Department should be in full froth. Panetta should be having his private life dug in to, sifted and seized as evidence, as happened to me and six others under the Obama administration.
If Panetta and Cartwright aren’t accountable while Drake, Kim and I have been crucified for harming U.S. national security — all of us accused of or investigated for the same thing: disclosing classified information to parties not authorized to know it — then what does that say about justice in America or White House hypocrisy?
Kiriakou goes on to call for changes in the Espionage Act to focus on issues of intent and harm.
Kiriakou is, of course, correct that he got punished for things that Panetta and Cartwright have (so far, at least) escaped such levels of punishment for. (I’d also add the unnamed real sources for the UndieBomb 2.0 leak, who are being protected by the scapegoating of Donald Sachtleben.)
But I’d go even further. Given reports that FBI is investigating whether Senate Intelligence Committee staffers violated the law for obtaining proof the Agency they oversee was hiding evidence from it, it’s crucial to remember how Kiriakou’s prosecution came about, which I laid out in this post.
It started when CIA officers claimed that when Gitmo defense attorneys provided photos of their clients torturers to them–having independently discovered their identity–the torturers were put at risk. DOJ didn’t believe it was a security risk; CIA disagreed and went to John Brennan. And after Patrick Fitzgerald was brought in to mediate between DOJ and CIA, the prosecution of John Kiriakou resulted.
As a reminder of where this all started, it’s worth reading this March 15, 2010 Bill Gertz article which was, AFAIK, the first public report of the investigation into the John Adams Project. It describes a March 9, 2010 meeting between Fitzgerald and the CIA.
The dispute prompted a meeting Tuesday at CIA headquarters between U.S. Attorney Patrick J. Fitzgerald and senior CIA counterintelligence officials. It is the latest battle between the agency and the department over detainees and interrogations of terrorists.
According to U.S. officials familiar with the issue, the current dispute involves Justice Department officials who support an effort led by the American Civil Liberties Union to provide legal aid to military lawyers for the Guantanamo inmates. CIA counterintelligence officials oppose the effort and say giving terrorists photographs of interrogators has exposed CIA personnel and their families to possible terrorist attacks.
According to the officials, the dispute centered on discussions for a interagency memorandum that was to be used in briefing President Obama and senior administration officials on the photographs found in Cuba. Justice officials did not share the CIA’s security concerns about the risks posed to CIA interrogators and opposed language on the matter that was contained in the draft memorandum. The memo was being prepared for White House National Security Council aide John Brennan, who was to use it to brief the president.
The CIA insisted on keeping its language describing the case and wanted the memorandum sent forward in that form.
That meeting, of course, would have taken place the day after Fitzgerald was appointed. So immediately after Fitzgerald got put in charge of this investigation, he presumably moderated a fight between DOJ, which didn’t think detainee lawyers pursuing their clients’ torturers via independent means threatened to expose the torturers’ identity directly, and CIA, which apparently claimed to be worried.
What happened with Kiriakou’s sentencing today is many things. But it started as–and is still fundamentally a result of–an effort on the part of CIA to ensure that none of its torturers ever be held accountable for their acts, to ensure that the subjects of their torture never gain any legal foothold to hold them accountable.
Given Friday’s news that DOJ’s “new” media guidelines continue to permit FBI to use National Security Letters to obtain journalists’ contact information, I’d like to return to the apparent results of two major leak investigations, those into the UndieBomb 2.0 and StuxNet leaks.
In the former case, the DOJ claims it had no idea that Donald Sachtleben served as a source for Matt Apuzzo and Adam Goldman’s story on UndieBomb 2.0 and no means to get a warrant for a computer they already had in their possession until — months into the investigation — they subpoenaed the phone records for 20 AP lines.
The entire premise of the FBI narrative is that they exercised greater care with a kiddie porn accusee they had dead to rights than they did the 100 or so AP reporters who got sucked up in their overbroad dragnet. They would have you believe that, even after seizing a CD holding a November 2, 2006 SECRET CIA intelligence report at Sachtleben’s house in May 2012 pursuant to a kiddie porn warrant (which they have not produced in the docket), they just sat on his devicesfor almost a year until they obtained the phone records for 20 AP phone lines, in a seizure far more intrusive into journalism than any recent known subpoena.
Sachtleben was identified as a suspect in the case of this unauthorized disclosure only after toll records for phone numbers related to the reporter were obtained through a subpoena and compared to other evidence collected during the leak investigation. This allowed investigators to obtain a search warrant authorizing a more exhaustive search of Sachtleben’s cell phone, computer, and other electronic media, which were in the possession of federal investigators due to the child pornography investigation.
(I may be mistaken, but I don’t think the FBI made this claim in any court document, so I assume it is bullshit, especially since they had had to do extensive forensic searches of Sachtleben’s computer and he had already signed a plea deal forfeiting it.)
In addition, DOJ would have you believe that Sachtleben, who could not have been the most important source for this leak, was the AP’s only source. At his sentencing, he pointed out correctly that’s not true.
“I was neither the sole nor the original source of information to ‘Reporter A’ about the suicide bomb,” Sachtleben said in a statement sent by his law firm. “The information I shared with Reporter A merely confirmed what he already believed to be true. Any implication that I was the direct source of a serious leak is an exaggeration.”
And the transcript of John Brennan’s teleconference to guide this leak makes it clear that the AP had far more information than they published, Sachtleben leaks all appeared in the story. So there obviously were far more sensitive sources DOJ chose not to prosecute.
They got their kiddie porn scapegoat, and their public explanation of how and why they obtained the phone records implicating 100 AP journalists. Which presumably had the additional advantage of making it clear to all Apuzzo and Goldman’s potential sources that DOJ is willing to go after them.
Compare all that to the StuxNet investigation. Reports last year identified Retired General James Cartwright as the suspect in the case.
But, said legal sources, while the probe that Attorney General Eric Holder ordered initially focused on whether the information came from inside the White House, by late last year FBI agents were zeroing in on Cartwright, who had served as one of the president’s “inner circle” of national security advisors.
The investigation focused on Cartwright in spite of evidence the White House was closely involved in the book (though not necessarily involved in leaking the details that particularly angered DC insiders, which may have been the that Israel permitted the virus to escape).
And all this happened — FBI was able to rule out the White House’s sources but still confirm Cartwright’s role — without subpoenaing NYT phone records.
Two sources said prosecutors were able to identify Cartwright as a suspected leaker without resorting to a secret subpoena of the phone records of New York Times reporters.
As it happens, Cartwright was only stripped of his clearance, not charged; there will be no court case in which the government has to show how it collected its evidence against Cartwright.
Of course, it would be a lot easier to pick and choose which sources to prosecute if you can secretly identify, using National Security Letters, those sources before actually obtaining journalist records in a way that requires public notice, as the AP subpoena eventually did. And then, at such time as you do want to make that public, you can get the subpoena showing the evidence you’ve already obtained via NSL.
In addition to being a threat to press freedoms, the explicit use of NSLs to obtain journalist contacts permits the government even more arbitrary power than the record of these two cases show it exercises.
Using NSLs allows DOJ to engage in selective leak prosecutions without that being immediately obvious.
Handy things, these NSLs.
I’ve been meaning to comment on this story from Bill Gertz from last week. After reporting that the Israelis bitched about US reports of the Israeli strike on Russian made missiles shipped to Syria,
Israeli government officials voiced anger at U.S. press leaks traced to the Pentagon following the July 5 Israeli missile attack on the Syrian port of Latakia that destroyed a shipment of Russian-made anti-ship missiles, according to U.S. officials.
Senior Pentagon officials, including Deputy Secretary of Defense Ashton Carter who is currently visiting Israel, discussed the leaks during meetings with Israeli officials this week. The Israelis argued in private meetings and other exchanges that the disclosures could lead to Syrian counterattacks against Israel and should have been coordinated first with the Israeli government. [my emphasis]
It catalogs multiple people — both American and Israeli — talking about the intent of the gag and concerns about secrecy.
A U.S. official said signs of Israeli anger over the Latakia raid disclosures appeared in several Israel press outlets. One Israeli official was described as “furious” over the leak because the Pentagon did not coordinate its release of information first with Israel.
Other Israeli officials were quoted as saying that in the aftermath of the Yakhont missile strikes that ties between Israel and Syria had reached a new peak and that there are worries that tying Israel to the attack will prompt Syrian leader Bashar al-Assad to retaliate soon or against a future Israeli attack. [my emphasis]
As far as I know, no one besides Gertz has reported on Israeli anger, in spite of the fact that the reports were published by notorious DOD mouthpieces. There’s Barbara Starr,
A series of explosions on July 5 at a critical Syrian port was the result of airstrikes by Israeli warplanes, according to multiple U.S. officials.
Regional media widely reported the predawn explosions at Latakia, but no one had officially claimed responsibility.
Three U.S. officials told CNN the target of the airstrikes were Russian-made Yakhont anti-ship missiles that Israel believes posed a threat to its naval forces.
And Michael Gordon,
Israel carried out an air attack in Syria this month that targeted advanced antiship cruise missiles sold to the Syria government by Russia, American officials said Saturday.
The officials, who declined to be identified because they were discussing intelligence reports, said the attack occurred July 5 near Latakia, Syria’s principal port city. The target was a type of missile called the Yakhont, they said.
Mind you, the Israelis don’t claim to be pissed that the leaks occurred (in spite of claims that revealing it publicly will make it more likely someone — I’m not sure precisely who — will attack Israel. Just that they (allegedly) occurred without coordinating with the Israelis.
Compare this treatment with the efforts to mandate investigations of leaks last year that made it harder to gin up war against Iran.
And with reports that retired General Hoss Cartwright is being investigated for repeating stories about Israel’s purported role in letting StuxNet escape Iranian nuke facilities (a leak which, it should be said, added to an earlier Michael Gordon co-byline).
Funny. Just a few weeks before the Latakia leaks to noted stenographers, leaking about Israel could get even a top General investigated.
But when stenographers report similar stories, crickets.
In his written testimony for yesterday’s drone hearing, Peter Bergen noted that the CIA keeps failing to warn policy makers of important developments.
Has the increased emphasis at the CIA on targeted killings hampered the agency’s ability to understand really important political developments in the Muslim world, such as the Arab Spring? As a senior Obama official has noted: “The CIA missed Tunisia. They missed Egypt. They missed Libya.” Even after the Egyptian revolution occurred, the CIA appears to have entirely missed the fact that the ultra-fundamentalist Salafists would do very well at the election box, winning around quarter of the votes in the 2011 parliamentary election, making them the second largest political bloc in Egypt after the Muslim Brotherhood.
At the hearing, Bergen more closely connected what he called CIA’s paramilitary focus and its recent intelligence failures.
Bergen: CIA seems to have missed 1/4 seats by Salafists. CIA should be abt strategic warning. If CIA deformed bc paramilitary that’s problem
It’s a judgment often repeated: that the CIA has had some big recent intelligence failures because it has been too busy running drone programs in Pakistan and Yemen.
But is that right?
There are a couple of stories this weekend on our undeclared war in Yemen that deserve some close focus.
As I pointed out in the wake of the NYT and Daily Beast stories on drone targeting, the Administration had been successfully distracting attention from Obama’s embrace of signature strikes directed out of John Brennan’s office by focusing on the vetting that goes (or went) into the Kill List.
With that in mind, compare how Greg Miller reports on those issues in this story. A key source or sources for the story are one or more former US official who describe a liberalization of the Kill List.
Targets still have to pose a “direct threat” to U.S. interests, said a former high-ranking U.S. counterterrorism official. “But the elasticity of that has grown over time.”
One of the U.S. objectives in Yemen has been “identifying who those leaders were in those districts that were al-Qaeda and also in charge of the rebellion,” said a former senior U.S. official who was involved in overseeing the campaign before leaving the government. “There was a little liberalization that went on in the kill lists that allowed us to go after them.”
The effort nearly ground to a halt last year amid a political crisis that finally forced Yemen’s leader for three decades, Ali Abdullah Saleh, to step down. As he fought to cling to power, U.S. officials said they became concerned that he was trying to direct U.S. strikes against his adversaries under the guise of providing locations of supposed terrorist groups.
“There were times when we were intentionally misled, presumably by Saleh, to get rid of people he wanted to get rid of,” said the former U.S. official involved in overseeing the campaign.
Now, as I noted, both the AP and Daily Beast emphasized the importance of Mike Mullen (who left on September 30, the day we killed Anwar al-Awlaki) and James Cartwright (who left on August 3) to Kill List vetting. That was an aeon ago in our war on Yemen, though the discussion of pulling back on targeting because we finally admitted to ourselves that Ali Abdulllah Saleh was playing a double game with us did happen while they were still around. And, for the moment, I can’t think of any other similarly high-ranking people who have left.
Now compare what these former officials said with what current officials are telling Miller (well, ignore Tommy Vietor, because he’s obviously blowing smoke).
“We’re pursuing a focused counterterrorism campaign in Yemen designed to prevent and deter terrorist plots that directly threaten U.S. interests at home and abroad,” said Tommy Vietor, spokesman for the National Security Council. “We have not and will not get involved in a broader counterinsurgency effort.”
But other U.S. officials said that the administration’s emphasis on threats to interests “abroad” has provided latitude for expanding attacks on al-Qaeda in the Arabian Peninsula (AQAP), as the Yemen affiliate is known. Continue reading
Between them, the NYT and the Daily Beast published over 10,000 words on Obama’s drone assassination program yesterday. Both stories rolled out the new acronym the Administration wants us to use: terrorist-attack-disruption strikes, or TADS. Neither of them, in those over 10,000 words, once mentioned Abdulrahman al-Awlaki, Anwar al-Awlaki’s 16 year old American citizen son also killed in a drone strike last year.
And while both stories break important new ground and challenge the Administration’s narrative in key ways, the prioritization of TADS over Abdulrahman in them is a pretty clear indication of the success with which the Administration pushed a certain agenda in these stories.
As I suggested at the end of this post, I think John Brennan hoped to use them to reframe recent changes to the drone program to make them more palatable.
Drone Strikes before They Got Worse
Before I lay out the new spin these stories offer on the signature strikes and vetting process rolled out last month, let’s recall what was included in the drone program before these recent changes, in addition to the killing of a 16-year old American citizen.
According to the NYT, the Administration assumed that, “people in an area of known terrorist activity, or found with a top Qaeda operative, are probably up to no good” and therefore all military age males in a strike zone could be targeted. A former senior counterterrorism official calls earlier drone targeting, “guilt by association.” Of signature strikes in Pakistan, a senior (apparently still-serving) official joked “that when the C.I.A. sees ‘three guys doing jumping jacks,’ the agency thinks it is a terrorist training camp.” And one of Obama’s top political advisors, David Axelrod, was attending targeting meetings, injecting a political taint on the program.
Even with all of that, these stories don’t explain how the intense vetting process they describe resulted in the al-Majala strike that made Jeh Johnson think about going to Catholic confession and “shook” John Brennan and President Obama. Or, of course, how we came to kill a 16 year old American citizen.
So all of that was in place before the recent changes to the drone assassination program made it worse. Don’t worry, though, it’s TADS now.
With all that in mind–Abdulrahman and the guilt by association and the three guys doing jumping jacks–let’s look at how these stories reframe signature strikes in Yemen and White House consolidation of the vetting.
Assassination Czar John Brennan’s Drone Shop
Consider the way the articles describe the targeting process. The NYT–relying on a single source, “an administration official who has watched [Obama] closely”–describes a very aggressive vetting process led by the DOD, then nods to a “parallel” process at CIA in countries where it leads the vetting.
The video conferences are run by the Pentagon, which oversees strikes in those countries, and participants do not hesitate to call out a challenge, pressing for the evidence behind accusations of ties to Al Qaeda.
“What’s a Qaeda facilitator?” asked one participant, illustrating the spirit of the exchanges. “If I open a gate and you drive through it, am I a facilitator?” Given the contentious discussions, it can take five or six sessions for a name to be approved, and names go off the list if a suspect no longer appears to pose an imminent threat, the official said. A parallel, more cloistered selection process at the C.I.A. focuses largely on Pakistan, where that agency conducts strikes.
The nominations go to the White House, where by his own insistence and guided by Mr. Brennan, Mr. Obama must approve any name. He signs off on every strike in Yemen and Somalia and also on the more complex and risky strikes in Pakistan — about a third of the total.
Since for the most part, DOD has managed the Yemen and Somalia strikes, while CIA managed the Pakistan ones, this conflates the vetting for personality strikes targeted at known people and the signature strikes the CIA has targeted against men doing jumping jacks in Pakistan. Somehow, al-Majala and Abdulrahman still got through that vetting process, but the exhaustive DOD one was, for the most part, far more rigorous than the CIA one.
Now compare that description of the DOD vetting process with the one the AP gave on May 21, which it says is “mostly defunct.”
The previous process for vetting them, now mostly defunct, was established by Mullen early in the Obama administration, with a major revamp in the spring of 2011, two officials said.
Under the old Pentagon-run review, the first step was to gather evidence on a potential target. That person’s case would be discussed over an interagency secure video teleconference, involving the National Counterterrorism Center and the State Department, among other agencies. Among the data taken into consideration: Is the target a member of al-Qaida or its affiliates; is he engaged in activities aimed at the U.S. overseas or at home?
If a target isn’t captured or killed within 30 days after he is chosen, his case must be reviewed to see if he’s still a threat. [my emphasis]
That is, that free-ranging discussion, the process by which targets could come off the list as well as get put on it? At least according to the AP, it is now defunct–or at least “less relevant.” Continue reading
A number of al Qaeda’s online jihadist forums have gone down for extended periods.
Al-Qaeda’s main Internet forums have been offline for more than a week in what experts say is the longest sustained outage of the Web sites since they began operating eight years ago.
No one has publicly asserted responsibility for disabling the sites, but the breadth and the duration of the outages have prompted some experts to conclude that the forums have been taken down in a cyberattack — launched perhaps by a government, a government-backed organization or a hackers’ group.
US Cyber Command denied to the WaPo that it–or other US government agencies–were responsible.
There is still some uncertainty about whether a cyberattack caused the recent outages, and skeptics note that some prominent al-Qaeda forums remain online. U.S. government agencies, including U.S. Cyber Command, had no role in the outages, according to officials who would speak about the issue only on the condition of anonymity.
Still, Will McCants, a former State Department
Whereas government sources CNN contacted (Barbara Starr, CNN’s resident DOD mouthpiece, is bylined) declined to comment.
No entity has claimed responsibility and U.S. officials contacted by CNN would not comment.
A U.S. official said the United States has been aware of the al Qaeda websites being down and finds it “of interest to us.”
But the WaPo also describes our government using foreign government assistance in the past.
In the past, U.S. officials have also relied on diplomatic channels to dismantle extremist sites that are viewed as a threat to American personnel or interests, according to former U.S. officials familiar with the episodes.
The approach has worked in more than a dozen cases and in each instance was backed by at least the implicit threat of a cyberattack by the U.S. military if the Web site’s host country failed to act, the officials said. The countries that cooperated were in Europe, the Persian Gulf and the Pacific, they said.
“We’ve never had a country refuse us,” said James Cartwright, the former vice chairman of the Joint Chiefs of Staff, speaking at a U.S. China Economic and Security Review Commission hearing at George Mason University last week. “But if they did, then you can invoke the right of self-defense.”
It reports the sites in question are hosted in Malaysia, Costa Rica and Gaza.
Meanwhile, Will McCants suggests to CNN that the outage may be related to Spain’s arrest of alleged Al Qaeda propagandist Mudhar Hussein Almalki
Zelin speculated the outage could be tied to the recent arrest of Mudhar Hussein Almalki in Spain. Almalki maintained the Ansar al-Mujahidin Forum, according to a Spanish police document provided to CNN. The police document alleges Almalki ran the site and oversaw who could access it, spread information to jihadists and maintained private chat rooms to “carry out meetings with others to give out instructions,” according to a translation of the document.