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.
I’m going to return to Glenn Greenwald’s latest showing details of how the NSA treated WikiLeaks and, to a lesser degree, Anonymous (as well as Alexa O’Brien’s update on the investigation into WikiLeaks) later.
If GCHQ does this kind of tracking, how did Five Eyes miss the Tsarnaev brothers?
But for now I want to look at one slide covering GCHQ’s AntiCrisis monitoring approach (see slide 34), which in this case is focused on WikiLeaks. It shows how GCHQ has the ability — and had it in 2012 — to monitor particular websites. It shows GCHQ can monitor the visitors of a particular website, where they’re coming from, what kind of browsers they use. None of that is, in the least surprising. But given those capabilities, it would be shocking if GCHQ weren’t doing similar monitoring of AQAP’s online magazine Inspire, with the added benefit that certain text strings in each Inspire magazine would make it very easy to track copies of it as it was downloaded, even domestically via upstream collection. And for the UK, this isn’t even controversial; even possessing Inspire in the UK can get you imprisoned.
Given that that’s the case, why didn’t GCHQ and NSA find the Tsarnaev brothers who — the FBI has claimed but provided no proof — learned to make a bomb from the Inspire release that GCHQ or NSA hacked? Why isn’t NSA reviewing why it didn’t find the brothers based on cross-referencing likely NSA tracking of Inspire with its FBI reporting on Tamerlan Tsarnaev?
I used to not believe NSA should have found the Tsarneavs. But now that I’ve seen all the nifty tools we’ve learned NSA and, especially, GCHQ have, they really do owe us an explanation for why they didn’t find the Tsarnaev brothers, one of whom was already in an FBI database, and who was allegedly learning to make a pressure cooker bomb from a document that surely gets tracked by the NSA and its partners.
Speaking of NSA failures…
Which brings me back to James Clapper’s interview with Eli Lake.
Clapper said the problems facing the U.S. intelligence community over its collection of phone records could have been avoided. “I probably shouldn’t say this, but I will. Had we been transparent about this from the outset right after 9/11—which is the genesis of the 215 program—and said both to the American people and to their elected representatives, we need to cover this gap, we need to make sure this never happens to us again, so here is what we are going to set up, here is how it’s going to work, and why we have to do it, and here are the safeguards… We wouldn’t have had the problem we had,” Clapper said.
“What did us in here, what worked against us was this shocking revelation,” he said, referring to the first disclosures from Snowden. If the program had been publicly introduced in the wake of the 9/11 attacks, most Americans would probably have supported it. “I don’t think it would be of any greater concern to most Americans than fingerprints
Now, I’ll have to review the latest declarations in Jewel, but I think Clapper’s statement — that the genesis of today’s phone dragnet dates to 9/11 – goes slightly beyond what has been admitted, because it ties today’s phone dragnet program back to the PSP phone dragnet program. Ron Wyden has tried to make the tie between the illegal program and the current one clear for months. Clapper has now inched closer to doing so.
But I also want to take issue with Clapper’s claim that if NSA had presented a “gap” to Members of Congress and the public after 9/11 we would have loved the dragnet.
Had we known of the errors and territorialism that permitted 9/11, would we have agreed to any of this?
I do so, in part, because the claim there was a “gap” is erroneous and has been proven to be erroneous over and over. Moreover, that myth dates not to the days after 9/11, but to misrepresentations about the content of the 9/11 Commission report 3 years later. Note, too, that (as has happened with Inspector Generals reviews of the Boston Marathon attack) the Commission got almost no visibility into what NSA had against al Qaeda.
More importantly, had NSA gone to the public with claims about gaps it did and didn’t have before 9/11, we would likely have talked not about providing NSA more authority to collect dragnets, but instead, about the responsibility of those who sat on intelligence that might have prevented 9/11.
As Thomas Drake and the other NSA whistleblowers have made clear, the NSA had not shared intelligence reports that might have helped prevent 9/11.
I found the pre- and post-9/11 intelligence from NSA monitoring of some of the hijackers as they planned the attacks of 9/11 had not been shared outside NSA. Continue reading
“Intelligence agencies often act on the edges of executive prerogative and move forward based on a narrow base of lawfulness and limited congressional notification,” says Michael Hayden, the guy who oversaw Bush’s illegal wiretap for 2.5 years before the full Gang of Eight first got adequately briefed, and who never briefed Congress on CIA’s assassination program.
In the same piece, Hayden hails media editors who ceded to his requests to hold or adjust a story.
So, how do we limit the damage? Well, journalists will have to expand the kind of sensitivities to the national welfare that some already show. In those calls I made to slow, scotch or amend a pending story, most on the other end of the line were open to reasonable arguments. In one case a writer willingly changed a reference that had read “based on intercepts” to “based on intelligence reports,” somewhat amazed that that change made much of a difference. (It did.)
But then insists the UndieBomb 2.0 story — for which AP editors had made precisely those kinds of concessions — was right to be investigated because John Brennan’s push back to it exposed a mole.
The two prominent cases being debated were indeed serious leaks, because they touched upon sources, not just information.
In the case of the Associated Press report on a Yemen-based bomb plot, the source had apparently penetrated an al Qaeda network and there were hopes that he could continue to be exploited.
And, since the Yemen source appears to have actually been recruited by a liaison partner, the impact of a leak goes far beyond our own service. In that same talk with bureau chiefs, I pointed out that several years before 9/11, one chief of station reported that a press leak of liaison intelligence had “put us out of the (Osama) bin Laden reporting business”.
In both stories, investigations were in order. Journalists, of all people, should understand the need to protect sources and relationships.
As the LAT story Hayden links to says clearly, “The AP did not mention the informant in its report.” And, as I laid out some weeks back, to believe our mole was going to return, the former head of the CIA would have to believe that AQAP shows great tolerance for recruits who fuck up and then return right after high ranking operatives get drone killed.
Because to maintain that claim, you’d have to explain how an AQAP operative who had been entrusted with the latest version of Ibrahim al-Asiri’s UndieBomb sometime in early April, had left (at least as far as Sanaa), had not apparently succeeded in his mission (which was, after all, meant to be a suicide bombing), could return to AQAP without the UndieBomb and infiltrate even further than he had the first time.
“Oh, hi, AQAP gatekeeper” — their story must imagine the mole saying as he returned to AQAP — “I’ve both failed in my mission and somehow lost the bomb you gave me, but based on that would you be willing to let me spend some quality time with even higher-ranking AQAP operatives?”
In short, Hayden appears to have decided it’d be a good idea to ignore the facts, good sense, and his own history so as to suggest that the Obama Administration is worse than the reasonable old Bush Administration.
But the investigations have been very aggressive and the acquisition of journalists’ communications records has been broad, invasive, secret and—one suspects—unnecessary.
A quick survey of former Bush administration colleagues confirmed my belief that a proposal to sweep up a trove of AP phone records or James Rosen’s e-mails would have had a half-life of about 30 seconds in that administration.
Just ignore the fact that the government was asking people questions about James Risen‘s phone contacts — indicating they had probably doing just what the Obama Administration did to the AP reporters, only without telling him — before Obama took over.
But here’s my favorite part:
The government may also want to adjust its approach to enforcement. The current tsunami of leak prosecutions is based largely on the Espionage Act, a blunt World War I statute designed to punish aiding the enemy. It’s sometimes a tough fit. The leak case against former National Security Agency employee Thomas Drake collapsed of its own overreach in 2011.
Perhaps in many of these cases the best approach is not through the courts or the Department of Justice.
Remember, Drake was investigated for telling a journalist about Hayden’s own boondoggle that cost many times what NSA’s existing better solution cost. There is virtually no way the investigation against him didn’t rely, in part, on Hayden’s own testimony.
And now, 6 years after the investigation into Drake started in earnest, Hayden suggests Drake shouldn’t have been criminally investigated at all.
Hayden can afford that very belated generosity, of course. He’s been profiting off the same kind of boondoggles Drake tried to expose for years now.
I mean, sure, the main jist of what Hayden says is true: the Administration is pursuing leaks far too aggressively. But coming from a guy who has long benefitted from the Executive Branch asymmetric abuse of secrecy, he’s not exactly the right person to be making the point.
When the FBI found sensitive — though it turned out, unclassified — documents in Thomas Drake’s basement, he was charged under the Espionage Act. When the Army found hundreds of thousands of classified — but not Top Secret — cables on Bradley Manning’s computer, they charged him with Espionage and Aiding the Enemy.
But when the FBI found Top Secret documents on Sudan — our actual enemy, if sanctions count — in Reagan National Security Advisor Robert McFarlane’s basement, it decided to investigate him for illegal lobbying.
The FBI has searched the apartment of former Reagan administration national security adviser Robert McFarlane for evidence of whether he lobbied for the government of Sudan, in violation of federal law.
The search warrant is on file in federal district court in Washington. It shows agents seized items this month including handwritten notes about Sudan and White House documents with classifications up to Top Secret.
From this I can only assume that McFarlane is being subjected to the same double standard that Clinton’s National Security Advisor Sandy Berger was (represented, it should be noted, by former Criminal Division chief Lanny Breuer), when he snuck 9/11 related documents out of the Archives, yet only plead guilty to a misdemeanor.
When National Security Advisors take top secret documents, they’re called lobbyists, not spies.
I can’t wait to find out what Condi Rice will be called if she’s ever caught with sensitive documents in her basement.
I’m sure I could grill John Brennan for hours. But after a lot of thought, here are the five questions I believe most important that should be asked of him Today.
1) Do you plan to continue lying to Americans?
You have made a number of demonstrable lies to the American people, particularly regarding the drone program and the Osama bin Laden raid. Most egregiously in 2011, you claimed “there hasn’t been a single collateral death” in almost a year from drone strikes; when challenged, you revised that by saying, “the U.S. government has not found credible evidence of collateral deaths,” even in spite of a particularly egregious case of civilian deaths just months earlier. On what basis did you make these assertions? What definition of civilian were you using in each assertion? (More background)
In addition, in a speech purportedly offering transparency on the drone program, you falsely suggested we know the identities of all people targeted by drones. Why did you choose to misrepresent the kind of intelligence we use in some strikes?
2) What was the intelligence supporting the first attempt to kill Anwar al-Awlaki?
The US government’s first attempt to kill Anwar al-Awlaki with a drone strike was December 24, 2009. WikiLeaks cables make it clear that Awlaki was a primary target of that strike, not just intended collateral damage. Yet the Webster report makes clear that on that day — that is, until the Underwear Bomber attempt the next day — the Intelligence Community did not consider Awlaki to be operational. Thus, the strike seems to have been approved before he fulfilled the criteria of the white paper released the other day, which authorizes the targeting of senior operational leaders of groups like AQAP. What was the legal basis for targeting this American citizen at a time when the IC did not believe him to be operational? (More background)
3) Will your close friendships with Saudis cloud your focus on the US interest?
In a fawning profile the other day, Daniel Klaidman nevertheless laid out the following points:
In addition, recent reports have confirmed that the drone strike that killed Anwar al-Awlaki was launched from Saudi territory.
Were the personal entreaties you responded to from Yemenis or Saudis (or both)?
What role did the Saudis have in the Awlaki strike? Did they have an operational role?
As someone with such close ties to liaison sources, how have you and will you manage to prioritize the interests of the United States over the interests of friends you have from two decades ago?
To what degree is your intelligence sharing — especially with the Saudis — a stovepipe that creates the same risks of intelligence failures that got us into the Iraq War? (More background)
4) What role did you have in Bush’s illegal wiretap program?
The joint Inspector General report on the illegal wiretap program reported that entities you directed — the Terrorist Threat Integration Center in 2003 and 2004, and the National Counterterrorism Center in 2004 and 2005 — conducted the threat assessments for the program.
What role did you have, as the head of these entities, in the illegal wiretapping of Americans? To what extent did you know the program violated FISA? What role did you have in counseling Obama to give telecoms and other contractors immunity under the program? What influence did you have in DOJ decisions regarding suits about the illegal program, in particular the al-Haramain case that was thrown out even after the charity had proved it had been illegally wiretapped? Did you play any role in decisions to investigate and prosecute whistleblowers about this and other programs, notably Thomas Drake? (More background)
5) Did you help CIA bypass prohibitions on spying domestically with the NYPD intelligence (and other) programs?
In your additional prehearing questions, you admit to knowing about CIA’s role in setting up an intelligence program that profiled Muslims in New York City. What was your role in setting up the program? As someone with key oversight over personnel matters at the time, did you arrange Larry Sanchez’ temporary duty at the NYPD or CIA training for NYPD detectives?
Have you been involved in any similar effort to use CIA resources to conduct domestic spying on communities of faith? You said the CIA provides (among other things) expertise to local groups spying on Americans. How is this not a violation of the prohibition on CIA spying on Americans? (More background)
Update: I realized that I have left out a caveat in Brennan’s drone lies — he was talking in the previous year. I’ve fixed that.
The most interesting line of this WSJ article–describing the dissent to the Administration’s plan to give the National Counterterrorism Center any government database it wants for five years–is this one.
Mr. Brennan considered the arguments. And within a few days, the attorney general, Eric Holder, had signed the new guidelines.
The story suggests that the way the Administration resolved objections from people within Department of Homeland Security (as well as DOJ) to giving NCTC Americans’ flight data in ways they hadn’t been informed of when the data was collected was to have a meeting at the White House Situation Room at which John Brennan would decide whether to heed those objections.
John Brennan. Not the President, not the Attorney General, not even National Security Advisor Tom Donilon, but instead John Brennan (not coincidentally, a former contractor on data mining and before that in charge of targeting for Dick Cheney’s illegal wiretap program).
Much of the rest of the story rehearses what I reported (among other places) here and here and here and here. It describes how the NCTC will have access to any database it claims contains terrorist information.
What’s new in this story is the reason NCTC demanded a policy granting them broad access to these databases–because it had not complied with an agreement made with DHS regarding one of its databases.
Late last year, for instance, NCTC obtained an entire database from Homeland Security for analysis, according to a person familiar with the transaction. Homeland Security provided the disks on the condition that NCTC would remove all innocent U.S. person data after 30 days.
After 30 days, a Homeland Security team visited and found that the data hadn’t yet been removed. In fact, NCTC hadn’t even finished uploading the files to its own computers, that person said. It can take weeks simply to upload and organize the mammoth data sets.
Homeland Security granted a 30-day extension. That deadline was missed, too. So Homeland Security revoked NCTC’s access to the data.
To fix problems like these that had cropped up since the Abdulmutallab incident, NCTC proposed the major expansion of its powers that would ultimately get debated at the March meeting in the White House. [my emphasis]
And it describes how, primarily, former DHS Privacy Officer Mary Ellen Callahan fought the changes.
In May 2011, Ms. Callahan and Ms. Schlanger raised their concerns with the chief of their agency, Janet Napolitano. They fired off a memo under the longwinded title, “How Best to Express the Department’s Privacy and Civil Liberties Concerns over Draft Guidelines Proposed by the Office of the Director of National Intelligence and the National Counterterrorism Center,” according to an email obtained through the Freedom of Information Act. The contents of the memo, which appears to run several pages, were redacted.
The two also kept pushing the NCTC officials to justify why they couldn’t search for terrorism clues less invasively, these people said.
To resolve the issue, Homeland Security’s deputy secretary, Jane Holl Lute, requested the March meeting at the White House.
Ms. Callahan argued that the rules would constitute a “sea change” because, whenever citizens interact with the government, the first question asked will be, are they a terrorist?
It also describes how all these people who not only championed privacy, but also pointed out our targeting failures in the past came from not investigating quickly, not lacking the data to find those people.
This feels very similar to the same argument that Thomas Drake fought at NSA. He, like these former DHS and DOJ people, fought for a way to find terrorists that didn’t also infringe on the privacy of Americans. And he, like these DHS people, was overruled.
The difference, of course, is that this abuse of privacy came under Barack Obama, who never seems to get criticized for showing the same disdain for privacy that Dick Cheney did.
Though, insofar as John Brennan is making all the decisions in Obama’s war on terror, I’m not sure there’s a real difference between the two.
Last night, WaPo reported that the FBI is still trying to figure out how Paula Broadwell got classified information they found on her computer and–it looks like–in her home.
The FBI is making a new push to determine how a woman who had an affair with retired Gen. David H. Petraeus when he was CIA director obtained classified files, part of an expanding series of investigations in a scandal that also threatens the career of the United States’ top military commander in Afghanistan.
Senior law enforcement officials said that a late-night seizure on Monday of boxes of material from the North Carolina home of Paula Broadwell, a Petraeus biographer whose affair with him led to his resignation last week, marks a renewed focus by investigators on sensitive material found in her possession.
“The issue of national security is still on the table,” one U.S. law enforcement official said. Both Petraeus and Broadwell have denied to investigators that he was the source of any classified information, officials said.
The surprise move by the FBI follows assertions by U.S. officials that the investigation had turned up no evidence of a security breach — a factor that was cited as a reason the Justice Department did not notify the White House before last week that the CIA director had been ensnared in an e-mail inquiry.
As the WaPo correctly points out, this new investigative push is surprising, because the FBI has already been blabbing for several days that no charges would be filed.
Which is why I find it strange that Matthew Miller made this claim in a column arguing the FBI has handled the Petraeus investigation properly:
In this case, it appears the Department of Justice and Federal Bureau of Investigation handled the matter entirely in keeping with those rules and precedents. And, importantly, they passed the most crucial test faced whenever the department investigates a senior member of the existing administration: They conducted the entire investigation without playing favorites and without a hint of political interference.
While it’s not the central thrust of Miller’s piece (whether or not Congress should have been informed is), it’s too soon to know whether DOJ is playing favorites or not. But up until this latest report from WaPo, it appeared they were playing favorites.
After all, DOJ charged people–like Thomas Drake–for retaining unclassified information, information he had been directed by the Inspector General to retain. DOD charged Bradley Manning with retaining classified information.
Retaining classified information improperly is a crime, even if you have clearance to view the information.
Sure, it’s usually used as a proxy for other crimes for which no evidence exists. Or, in the case of Drake, in an effort to get him to plead guilty to other crimes.
But if DOJ is going to use it as a tool to persecute leakers, there is no reason it should exempt General Petraeus’ one-time mistress.
I’m not saying I want Broadwell to be charged, nor am I saying I think DOJ’s use of such charges in the past is proper. But that’s the problem with witch hunts, isn’t it? They either stick out as arbitrary political prosecutions, or they set a standard that few in the national security establishment could meet.
Update: Ut oh. Broadwell might get herself in trouble after all.
A computer used by Paula Broadwell, the woman whose affair with CIA director General David Petraeus led to his resignation, contained substantial classified information that should have been stored under more secure conditions, law enforcement and national security officials said on Wednesday.
The contents of the classified material and how Broadwell acquired it remain under investigation, said the officials. They spoke on condition of anonymity because they are not authorized to comment publicly.
But the quantity of classified material found on the computer was significant enough to warrant a continuing investigation, the officials told Reuters.
Though it sounds like they’re only contemplating stripping her security clearance.
Law enforcement officials also have said that they believe the continuing FBI probe into the matter is likely to end without criminal charges. If Broadwell is found to have mishandled classified information, she could face action under administrative security regulations.
Which would mean they’re striking a middle ground between treating her as they’ve treated others and retaliating against her for getting the sainted Petraeus in trouble (because of course grown men never get themselves in trouble).
Update: CNN now reporting that Broadwell has had her security clearance revoked.
A lot of people are laughing at this account of Mitt Romney’s ORCA–and automated GOTV tracking system. Rather than the efficient new system that would leapfrog Obama’s turnout machine, the system crashed even before the evening rush started.
The entire purpose of this project was to digitize the decades-old practice of strike lists. The old way was to sit with your paper and mark off people that have voted and every hour or so, someone from the campaign would come get your list and take it back to local headquarters. Then, they’d begin contacting people that hadn’t voted yet and encourage them to head to the polls. It’s worked for years.
From the very start there were warning signs. After signing up, you were invited to take part in nightly conference calls. The calls were more of the slick marketing speech type than helpful training sessions. There was a lot of “rah-rahs” and lofty talk about how this would change the ballgame.
Working primarily as a web developer, I had some serious questions. Things like “Has this been stress tested?”, “Is there redundancy in place?” and “What steps have been taken to combat a coordinated DDOS attack or the like?”, among others. These types of questions were brushed aside (truth be told, they never took one of my questions). They assured us that the system had been relentlessly tested and would be a tremendous success.
Now a note about the technology itself. For starters, this was billed as an “app” when it was actually a mobile-optimized website (or “web app”). For days I saw people on Twitter saying they couldn’t find the app on the Android Market or iTunes and couldn’t download it. Well, that’s because it didn’t exist. It was a website. This created a ton of confusion. Not to mention that they didn’t even “turn it on” until 6AM in the morning, so people couldn’t properly familiarize themselves with how it worked on their personal phone beforehand.
From what I understand, the entire system crashed at around 4PM.
FWIW, Obama’s campaign had two innovations from 2008 this year. For vote trackers–the same purpose as this website was supposed to serve–they had bar code labels for each voter that the tracker would collect on a sheet to be picked up; I assume–but did not see–someone came and picked up those labels and used them later in the day.
Of 1,423 words in an article questioning whether deficit hawkery might cut the domestic spying budget, Scott Shane devotes over a sixth–roughly 260–describing what former NSA and CIA Director Michael Hayden thinks about the balances between funding and security.
Remarkably, none of those 260 words disclose that Hayden works for Michael Chertoff’s consulting group, which profits off of big domestic spying. This, in an article that cites Chertoff’s electronic border fence among the expensive counterterrorism duds that were subsequently shut down (Shane mentions “puffer” machines as well, but not the Rapiscan machines that Chertoff’s group lobbied for, which are now being withdrawn as well).
And then there’s a passage of Shane’s article that touches on topics in which Hayden’s own past actions deserve disclosure.
Like other intelligence officials after 2001, Mr. Hayden was whipsawed by public wrath: first, for failing to prevent the Sept. 11 attacks, and then, a few years later, for having permitted the National Security Agency to eavesdrop on terrorism suspects in the United States without court approval.
Perhaps, as a result, he often says that the American people need to instruct the government on where to draw the line. He told an audience at the University of Michigan last month, for instance, that while a plot on the scale of the Sept. 11 attacks was highly unlikely, smaller terrorist strikes, like the shootings by an Army psychiatrist at Fort Hood in Texas in 2009, could not always be stopped.
“I can actually work to make this less likely than it is today,” Mr. Hayden said. “But the question I have for you is: What of your privacy, what of your convenience, what of your commerce do you want to give up?”
To be fair, Shane counters Hayden’s claims by noting that “secrecy … makes it tough for any citizen to assess counterterrorism programs.”
But he doesn’t mention one of the biggest examples where Hayden–where anyone–chose both the most expensive and most privacy invasive technology: the wiretap program Hayden outsourced to SAIC rather than use in-house solutions.
As Thomas Drake has made clear, by outsourcing to SAIC, Hayden spent 300 times as much as he would have with the in-house solution.
One of them was Lieutenant General Michael Hayden, the head of the agency: he wanted to transform the agency and launched a massive modernization program, code named: “Trailblazer.” It was supposed to do what Thin Thread did, and more.
Trailblazer would be the NSA’s biggest project. Hayden’s philosophy was to let private industry do the job. Enormous deals were signed with defense contractors. [Bill] Binney’s Thin Thread program cost $3 million; Trailblazer would run more than $1 billion and take years to develop.
“Do you have any idea why General Hayden decided to go with Trailblazer as opposed to Thin Thread, which already existed?” Pelley asked.
Asked to elaborate, Drake said, “Careers are built on projects and programs. The bigger, the better their career.” [my emphasis]
Along the way, Hayden repeatedly blew off Congressional staffer Diane Roark’s inquiries about privacy protection.
When Binney heard the rumors, he was convinced that the new domestic-surveillance program employed components of ThinThread: a bastardized version, stripped of privacy controls. “It was my brainchild,” he said. “But they removed the protections, the anonymization process. When you remove that, you can target anyone.” He said that although he was not “read in” to the new secret surveillance program, “my people were brought in, and they told me, ‘Can you believe they’re doing this? They’re getting billing records on U.S. citizens! They’re putting pen registers’ ”—logs of dialled phone numbers—“ ‘on everyone in the country!’ ”
[Former HPSCI staffer Diane Roark] asked Hayden why the N.S.A. had chosen not to include privacy protections for Americans. She says that he “kept not answering. Finally, he mumbled, and looked down, and said, ‘We didn’t need them. We had the power.’ He didn’t even look me in the eye. I was flabbergasted.” She asked him directly if the government was getting warrants for domestic surveillance, and he admitted that it was not. [my emphasis]
So it’s not just disclosure of all the ways Hayden has and does profit off of continued bloated domestic surveillance that Shane owes his readers: he also should refute Hayden’s claims about the relationship between cost, privacy, and efficacy.
Michael Hayden’s SAIC-NSA boondoggle is one case where secrecy no longer hides how much money was wasted for unnecessary privacy violations.
Yet somehow, that spectacular example of the unnecessary waste in domestic spying doesn’t make it into the 260 words granted to Hayden to argue we need continued inflated spending.
In March 2011, I noted a previously unreleased OLC memo mentioned in Jack Goldsmith’s May 6, 2004 illegal wiretapping memo seemingly giving the President broad authority to learn about grand jury investigations.
For example, this Office has concluded that, despite statutory restrictions upon the use of Title III wiretap information and restrictions on the use of grand jury information under Federal Rule of Criminal Procedure 6(e), the President has an inherent constitutional authority to receive all foreign intelligence information in the hands of the government necessary for him to fulfill his constitutional responsibilities and that statutes and rules should be understood to include an implied exception so as not to interfere with that authority. See Memorandum for the Deputy Attorney General from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Effect of the Patriot Act on Disclosure to the President and Other Federal Officials of Grand Jury and Title III Information Relating to National Security and Foreign Affairs 1 (July 22, 2002)
The Brennan Center has now liberated that memo (though they don’t yet have it linked). And it shows that in July 2002, Jay Bybee interpreted a section of the PATRIOT Act that expanded information-sharing to include sharing grand jury information, with no disclosure, with the President and his close aides.
The notion that grand jury testimony should be secret dates back to at least the seventeenth century. The rules governing disclosure of grand jury proceedings are set by the Federal Rules of Criminal Procedure; prior to the PATRIOT Act, those rules declared that grand jury information could be shared only under certain circumstances, such as when the material was necessary to assist a prosecutor. However, disclosures had to be reported to a judge, and everyone receiving the information had to be told of its confidentiality.
The PATRIOT Act changed these rules significantly. Government lawyers could now share “any grand-jury matter involving foreign intelligence, counterintelligence …, or foreign intelligence information” with nearly any federal official, including those working in law enforcement, intelligence, immigration, national defense, or national security. Even records about a grand jury’s deliberations or a particular grand juror’s vote were apparently fair game. And the standard for sharing the information was not whether the material was “necessary” to the official’s duties; instead, the information need only “assist” the official in some way.
First, although the rule expressly requires that disclosures of grand jury information be reported to the court, Bybee advised that disclosures to the president need not be reported lest they “infringe on the presumptively confidential nature of presidential communications.” (OLC had previously decided that similar disclosures to the president would be reportable in some circumstances but not in others.) In addition, disclosures to the president’s “close advisors” – including the president’s chief of staff, the vice president, and counsel to the president – could be kept secret as well. While only “information that is actually necessary for the President to discharge his constitutional duties” could be secretly disclosed to the president or his advisors, that requirement is highly unlikely to be tested in practice.
Permitting the content of deliberations or a grand juror’s vote to be shared secretly with the vice president is surprising enough. The memo goes much further, however. Once an attorney for the government has shared grand jury information with anyone – the president, one of his close advisors, or any other federal official whose duties are listed above – the person receiving the information can share it with anyone else without reporting to the court. That later disclosure, according to the memo’s crabbed reasoning, is not a disclosure “under” the rule, and therefore is not bound by the reporting requirement.
And there’s more: the recipient of one of those subsequent distributions can use the information for any purpose. Because these down-the-line releases are not technically disclosures “under” the rule, the “official duties” constraint does not apply.
I’ll have more to say about this once I get the memo.
But imagine how it might be used in, say, the Valerie Plame or the Thomas Drake investigations. They were, after all, investigations about the unauthorized disclosure of foreign intelligence information. They also happened to be investigations into Dick Cheney’s law-breaking, but they were ostensibly about leaks of precisely the kind of information Jay Bybee permitted be shared with the President and … the Vice President. And in the case of the Plame leak, once Cheney got a hold of the information, he could share it with Karl Rove who could do whatever the fuck he wanted with it.
Mind you, once Pat Fitzgerald got put in charge, I doubt such sharing happened on the Plame case–at least not before August 2005, when Jim Comey retired. After that, who’s to say what David Margolis, the master of institutional self-preservation, might have done with grand jury information implicating top White House officials?
And, yes, by all appearances, this memo remains operative.
Update: Here’s the memo. And here’s the operative passage:
Although the new provision in Rule 6(e) requires that any such disclosures be reported to the district court responsible for supervising the grand jury, disclosures made to the President fall outside the scope of the reporting requirement contained in that amendment, as do related subsequent disclosures made to other officials on the President’s behalf.