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Ben Wittes’ Delusion: FBI IS the Intelligence Community

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Ben Wittes has started a series of posts on how to tyrant-proof the presidency. His first post argues that Jennifer Granick’s worries about surveillance and Conor Friedersdorf’s worries about drone-killing are misplaced. The real risk, Wittes argues, comes from DOJ.

What would a president need to do to shift the Justice Department to the crimes or civil infractions committed—or suspected—by Trump critics and opponents? He would need to appoint and get confirmed by the Senate the right attorney general. That’s very doable. He’d want to keep his communications with that person limited. An unspoken understanding that the Justice Department’s new priorities include crimes by the right sort of people would be better than the sort of chortling communications Richard Nixon and John Mitchell used to have. Want to go after Jeff Bezos to retaliate for the Washington Post‘s coverage of the campaign? Develop a sudden trust-busting interest in retailers that are “too big”; half the country will be with you. Just make sure you state your non-neutral principles in neutral terms.

[snip]

There are other reasons to expect a politically abusive president to focus on the Justice Department and other domestic, civilian regulatory and law enforcement agencies: one is that the points of contact between these agencies and the American people are many, whereas the population’s points of contact with the intelligence community are few. The delusions of many civil libertarians aside, the intelligence community really does focus its activities overseas. To reorient it towards domestic oppression would take a lot of doing. It also has no legal authority to do things like arresting people, threatening them with long prison terms, fining them, or issuing subpoenas to everyone they have ever met. By contrast, the Justice Department has outposts all over the country. Its focus is primarily domestic. It issues authortitative legal guidance within the executive branch to every other agency that operates within the country. And it has the ability to order people to produce material and testify about whatever it wants to investigate.

What’s more, when it receives such material, it is subject to dramatically laxer rules as to its use than is the intelligence community. Unlike, say, when NSA collects material under Section 702, when the Justice Department gets material under a grand jury subpoena, there aren’t a lot of use restrictions (other than Rule 6(e)’s prohibition against leaking it); and there is no mandatory period after which DOJ has to destroy it. It has countless opportunities, in other words, to engage in oppressive activities, and it is largely not law but norms and human and institutional decency that constrain it.

I don’t necessarily disagree with the premise. Indeed, I’ve argued it for years — noting, for example, that a targeted killing in the US would look a lot more like the killing of Imam Luqman Abdullah in 2009 (or the killing of Fred Hampton in 1969) than drone killing of Anwar al-Awlaki in 2011 (given that Abdullah’s selling of stolen items got treated as terrorism in part because of his positive statements about Awlaki, it is not inconceivable FBI started infiltrating his mosque because of SIGINT).

My gripe (I have to have gripes because it is Wittes) is on two points. First, Wittes far overestimates how well the protections against abuse currently work. He seems to believe the Levi Guidelines remain in place unchanged, that the 2008 and 2011 and serial secret changes to the Domestic Investigations and Operations Guide since then have not watered down limits on investigations for protected activities. He suggests it was a good thing to use prosecutorial discretion to chase drugs in the 1990s and terrorism in the 2000s, and doesn’t consider why the rich donors who’ve done as much damage as terrorists to the country — the banksters, even those that materially supported terrorists — have gotten away with wrist-slap fines. It was not a good thing to remain obsessed with terrorists while the banksters destroyed our economy through serial global fraud (a point made even by former FBI agents).

We already have a dramatically unequal treatment of homegrown extremists in this country based on religion (compare the treatment of the Malheur occupiers with that of any young Muslim guy tweeting about ISIS who then gets caught in an FBI sting). We already treat Muslims (and African Americans and — because we’re still chasing drugs more than we should — Latinos) differently in this country, even though the guy running for President on doing so as a campaign plank isn’t even in office yet!

The other critical point Wittes missed in his claim that “delusional” civil libertarians don’t know that “the intelligence community really does focus its activities overseas” is that DOJ, in the form of FBI and DEA, is the Intelligence Community, and their intelligence focus is not exclusively overseas (nor is the intelligence focus of other IC members DHS — which has already surveilled Black Lives Matter activists — and Treasury). The first dragnet was not NSA’s, but the DEA one set up under Bill Clinton. One big point of Stellar Wind (which is what Wittes mocked Granick for focusing on) was to feed FBI tips of people the Bureau should investigate, based solely on their associations. And while Wittes is correct that “when the Justice Department gets material under a grand jury subpoena, there aren’t a lot of use restrictions (other than Rule 6(e)’s prohibition against leaking it); and there is no mandatory period after which DOJ has to destroy it,” it is equally true of when FBI gets raw 702 data collected without grand jury scrutiny.

FBI can conduct an assessment to ID the racial profile of a community with raw 702 data, it can use it to find and coerce potential informants, and it can use it for non-national security crimes. That’s the surveillance Wittes says civil libertarians are delusional to be concerned about, being used with inadequate oversight in the agency Wittes himself says we need to worry about.

Four different times in his post, Wittes contrasts DOJ with the intelligence community, without ever considering what it means that DOJ’s components FBI and DEA are actually part of it, that part of it that takes data obtained from NSA’s surveillance and uses it (laundered through parallel construction) against Americans. You can’t contrast the FBI’s potential impact with that of the IC as Wittes does, because the FBI is (one of) the means by which IC activities impact Americans directly.

Yes, DOJ is where President Trump (and President Hillary) might abuse their power most directly. But in arguing that, Wittes is arguing that the President can use the intelligence community abusively.

Less than 10% of Germany’s SIGINT Spying Targets Terrorist

Sorry I’ve been AWOL. I’ve been on a trip to DC.

Among the things I did was attend a presentation from Konstantin von Notz, one of the Bundestag members who is investigating Germany’s SIGINT spying in the wake of the Snowden leaks.

He made a comment that was really telling. They asked the BND (their NSA) to reveal how many of the selectors being targeted are terrorist targets. It’s less than 10% of the selectors.

I’m not (too) surprised by the number. But it’s a telling detail. For all the fear-mongering about how the government needs dragnets to combat terrorism, the bulk of what the Germans, at least, are doing is spying to serve the self-interest of their country.

Imperialist Robert Kagan Disavows the Bureaucracy of Immense American Presidency He Championed

The chattering class is in love with this Robert Kagan op-ed warning of Donald Trump bringing fascism,

not with jackboots and salutes (although there have been salutes, and a whiff of violence) but with a television huckster, a phony billionaire, a textbook egomaniac “tapping into” popular resentments and insecurities, and with an entire national political party — out of ambition or blind party loyalty, or simply out of fear — falling into line behind him.

I suppose I’m unsurprised that Beltway insiders are so gleeful that this Hillary-endorsing Neocon has turned on Republicans in such a fashion. Or, perhaps more importantly, that they’re so thrilled someone with such a soapbox has written a warning of impending fascism that so neatly disavows any responsibility — for Kagan himself, and by association, for other insiders.

But there are a couple of real problems with Kagan’s screed.

First, Kagan would like you to believe that Trump’s success has nothing to do with policy or ideology or the Republican party except insofar as the party “incubated” Trump.

But of course the entire Trump phenomenon has nothing to do with policy or ideology. It has nothing to do with the Republican Party, either, except in its historic role as incubator of this singular threat to our democracy. Trump has transcended the party that produced him.

Kagan gets Trump’s relationship with the Republican party exactly reversed. The party did not in any way incubate Trump. 80’s style greed and cable TV incubated Trump, if anything. What the Republican party has long incubated is racism. Trump just capitalized on that and pushed it just … a … bit … further than Republican dogwhistles traditionally go, in a year in which the GOP had lost a great deal of its credibility.

Which is why Kagan is also wrong in claiming that Trump isn’t about policy or ideology. I admit that Trump has always shown great deal of ideological flexibility, both before and during this run. But he has been consistent on two points: that racism, but also protectionism. There are a lot of reasons those two ideological keystones have appealed this year, but one has to do with the failures of globalization and the related American hegemonic project it assumes. That’s ideology and policy, both Trump’s, but also DC’s, including Kagan’s.

Kagan goes on to deal with these two issues.

We’re supposed to believe that Trump’s support stems from economic stagnation or dislocation. Maybe some of it does. But what Trump offers his followers are not economic remedies — his proposals change daily. What he offers is an attitude, an aura of crude strength and machismo, a boasting disrespect for the niceties of the democratic culture that he claims, and his followers believe, has produced national weakness and incompetence. His incoherent and contradictory utterances have one thing in common: They provoke and play on feelings of resentment and disdain, intermingled with bits of fear, hatred and anger. His public discourse consists of attacking or ridiculing a wide range of “others” — Muslims, Hispanics, women, Chinese, Mexicans, Europeans, Arabs, immigrants, refugees — whom he depicts either as threats or as objects of derision. His program, such as it is, consists chiefly of promises to get tough with foreigners and people of nonwhite complexion. He will deport them, bar them, get them to knuckle under, make them pay up or make them shut up.

Note the assumption that Trump’s protectionism is not an economic remedy but some unstated alternative is? Note Kagan’s treatment of racism, an ideology, as fear divorced from that ideology of white American exceptionalism?

Fear!! Kagan wants to boil Trump’s popularity down to fear! A guy who has had a central role in ginning up serial American aggressive wars is offended that someone wields fear to achieve political power!!! And having done that, this warmonger says the ability to gin up fear is precisely what our Founders — the men who set up three competing branches of government, each jealously guarding its power — were concerned about.

Which brings me to the Kagan argument that most baffles me. After bewailing Republican politicians’ refusal to stand up to Trump’s demagoguery, Kagan then argues (though I’m not sure he even realizes he’s making this argument) that Article I and Article III (the latter of which goes entirely unmentioned in this op-ed) will be powerless to stop Trump and his “legions” once he becomes president.

What these people do not or will not see is that, once in power, Trump will owe them and their party nothing. He will have ridden to power despite the party, catapulted into the White House by a mass following devoted only to him. By then that following will have grown dramatically. Today, less than 5 percent of eligible voters have voted for Trump. But if he wins the election, his legions will comprise a majority of the nation. Imagine the power he would wield then. In addition to all that comes from being the leader of a mass following, he would also have the immense powers of the American presidency at his command: the Justice Department, the FBI, the intelligence services, the military. Who would dare to oppose him then? Certainly not a Republican Party that laid down before him even when he was comparatively weak. And is a man like Trump, with infinitely greater power in his hands, likely to become more humble, more judicious, more generous, less vengeful than he is today, than he has been his whole life? Does vast power un-corrupt?

Never mind that Kagan describes general election numbers that simply don’t exist in our democracy. What he’s really complaining about is that a President — one he happens to distrust and dislike — would have “the immense powers of the American presidency at his command: the Justice Department, the FBI, the intelligence services, the military.”  Of course, Kagan focuses not on the government as a whole, but on the Deep State and the Justice Department that has increasingly become an integral part of it.

The guy who, for years, championed the unfettered exercise of the Deep State in the hands of people like Dick Cheney is now troubled about what would happen if Donald Trump got the same powers Dick Cheney had. And for what it’s worth, while I don’t buy Michael Hayden’s claim the CIA would resist a President Trump’s order to torture (Hayden’s successors at NSA and CIA will likely do just what Hayden himself did, capitulate to unconstitutional demands), I also know that neither Trump nor anyone in his immediate orbit has the kind of bureaucratic mastery of the Deep State that Dick Cheney had.

One more really important point: the Deep State — those tools Kagan is horrified Trump might soon wield — got so powerful, creating the danger that a demagogue like Trump might tap into them fully formed, largely in the service of an imperial project significantly sold by Robert Kagan. Kagan has claimed to be selling “Democracy™” around the world, but all along that project has rotted our own democracy here at home.

Kagan (and his fellow imperialists) did that. Not Trump. Trump would just take advantage of the bureaucratic tools Kagan’s propaganda has served to justify.

I’m not denying Donald Trump is a huge threat to American democracy (though I happen to think Hillary’s foreign policy will come with great risks and costs as well). I’m saying that Robert Kagan is not the one to make this argument — at least not without a whole lot of soul searching and commitment to change the underlying empowerment of “the immense powers of the American presidency.”

But Kagan doesn’t want that. Rather, he just wants to hand those powers, still unchecked, to Hillary Clinton.

SEC Says Hackers Like NSA Are Biggest Threat to Global Financial System

Reuters reports that, in the wake of criminals hacking the global financial messaging system SWIFT both via the Bangladesh central and an as-yet unnamed second central bank, SEC Commissioner Mary Jo White identified vulnerability to hackers as the top threat to the global financial system.

Cyber security is the biggest risk facing the financial system, the chair of the U.S. Securities and Exchange Commission (SEC) said on Tuesday, in one of the frankest assessments yet of the threat to Wall Street from digital attacks.

Banks around the world have been rattled by a $81 million cyber theft from the Bangladesh central bank that was funneled through SWIFT, a member-owned industry cooperative that handles the bulk of cross-border payment instructions between banks.

The SEC, which regulates securities markets, has found some major exchanges, dark pools and clearing houses did not have cyber policies in place that matched the sort of risks they faced, SEC Chair Mary Jo White told the Reuters Financial Regulation Summit in Washington D.C.

“What we found, as a general matter so far, is a lot of preparedness, a lot of awareness but also their policies and procedures are not tailored to their particular risks,” she said.

“As we go out there now, we are pointing that out.”

Of course, the criminals in Bangladesh were not the first known hackers of SWIFT. The documents leaked by Snowden revealed NSA’s elite hacking group, TAO, had targeted SWIFT as well. Given the timing, it appears they did so to prove to the Europeans and SWIFT that the fairly moderate limitations being demanded by the Europeans should not limit their “front door” access.

Targeting SWIFT (and credit card companies) is probably not the only financial hacking NSA has done. One of the most curious recommendations in the President’s Review Group, after all, was that “governments” (including the one its report addressed, the US?) might hack financial institutions to change the balances in financial accounts.

(2) Governments should not use their offensive cyber capabilities to change the amounts held in financial accounts or otherwise  manipulate the financial systems;

Second, governments should abstain from penetrating the systems of financial institutions and changing the amounts held in accounts there. The policy of avoiding tampering with account balances in financial institutions is part of a broader US policy of abstaining from manipulation of the financial system. These policies support economic growth by allowing all actors to rely on the accuracy of financial statements without the need for costly re-verification of account balances. This sort of attack could cause damaging uncertainty in financial markets, as well as create a risk of escalating counter-attacks against a nation that began such an effort. The US Government should affirm this policy as an international norm, and incorporate the policy into free trade or other international agreements.

After which point, James Clapper started pointing to similar attacks as a major global threat.

I don’t mean to diminish the seriousness of the threat (though I still believe banksters’ own recklessness is a bigger threat to the world financial system). But the NSA should have thought about the norms they were setting and the impact similar attacks done by other actors would have, before they pioneered such hacks in the first place.

For Second Year in a Row, HPSCI Tries to Gut PCLOB

As I reported, during the passage of Intelligence Authorization last year (which ultimately got put through on the Omnibus bill, making it impossible for people to vote against), Congress implemented Intelligence Community wishes by undercutting PCLOB authority in two ways: prohibiting PCLOB from reviewing covert activities, and stripping an oversight role for PCLOB that had been passed in all versions of CISA.

In the 2017 Intelligence Authorization HPSCI passed on April 29, it continued more of the same. It does so in two ways:

Requires it to get its appropriations approved by Congress

Section 303 changes the authorizing language for PCLOB to state that it can only spend money on things if Congress specifically authorized it.

SEC. 303. AUTHORIZATION OF APPROPRIATIONS FOR PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD.

(a) REQUIREMENT FOR AUTHORIZATIONS.—Sub-section (m) of section 1061 of the Intelligence Reform and Terrorism Prevention Act of 2004 (42 U.S.C. 2000ee(m)) is amended to read as follows:

(m) FUNDING.—

(1) SPECIFIC AUTHORIZATION REQUIRED.— Appropriated funds available to the Board may be obligated or expended to carry out activities under this section only if such funds were specifically authorized by Congress for use for such activities for such fiscal year.

(2) DEFINITION.—In this subsection, the term ‘specifically authorized by Congress’ has the meaning given that term in section 504(e) of the National Security Act of 1947 (50 U.S.C. 3094(e)).’

(b) AUTHORIZATION OF APPROPRIATIONS.—There is authorized to be appropriated to the Privacy and Civil Liberties Oversight Board for fiscal year 2017 the sum of $10,081,000 to carry out the activities of the Board under section 1061 of the Intelligence Reform and Terrorism Prevention Act of 2004 (42 U.S.C. 2000ee(m)).

At one level, this looks like nothing more than bureaucratic dick-waving, a reminder to PCLOB that Congress can cut off funding if it does things like deign to comment on covert spying activities.

But — particularly given the way the Intelligence Communities stripped PCLOB’s involvement in CISA oversight at the last minute — I wonder whether this will restrict what PCLOB can do under presidential orders. Congress set up PCLOB such that its mandate covers only counterterrorism programs. But with EO 13636 (the EO that set up the information sharing system that, with significant changes, became CISA) and PPD 28, President Obama gave PCLOB a cybersecurity role beyond that defined in statute. So I wonder whether this is a way to further PCLOB remove from cybersecurity oversight than those last minute changes already did.

The authorization still granted PCLOB its requested funding (and that request did lay out those cybersecurity activities), so this may just be, for the moment, a shot across the bow.

Requires the Committee to warn the Intelligence Committees and Intelligence Agency heads before they conduct any oversight

The bill also adds new reporting requires on PCLOB, beyond the biennial reports that go to a number of congressional committees. In short, the new language requires PCLOB to warn the Intelligence Committees and the heads of an intelligence agency before they start doing any oversight.

SEC. 307. INFORMATION ON ACTIVITIES OF PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD

Section 1061(d) of the Intelligence Reform and Terrorism Prevention Act of 2004 (42 U.S.C. 2000ee(d)) is further amended by adding at the end the following new paragraph:

(5) INFORMATION.—

(A) ACTIVITIES.—In addition to the reports submitted to Congress under subsection (e)(1)(B), the Board shall ensure that each official and congressional committee specified in subparagraph (B) is kept fully and currently informed of the activities of the Board, including any significant anticipated activities.

(B) OFFICIALS AND CONGRESSIONAL COMMITTEES SPECIFIED.—The officials and congressional committees specified in this subparagraph are the following:

(i) The Director of National Intelligence.

(ii) The head of any element of the intelligence community (as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 3003(4)) the activities of which are, or are anticipated to be, the subject of the review or advice of the Board.

(iii) The Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate.

Of particular note: if PCLOB warned the spooks, and the spooks prohibited PCLOB oversight (again), it’s not clear how the other committees of jurisdiction — which include the Judiciary, Homeland Security and House Oversight Committee, in addition to the Intelligence Committees — would get notice.

These changes are being made based on an Intelligence Committee claim that they give PCLOB — one of the very few entities that has proven to effectively oversee the Intelligence Community — more “oversight.” But it’s hard to understand how they’ll do anything more than ensure that the Intelligence Committees return to the status quo position where they’re the only entities permitted to (not) oversee the IC.

In other words, HPSCI — of all entities !!! — claims that that committee, which has serially failed at overseeing just about anything, must give the overseers greater oversight.

Minh Quang Pham: FBI Continues Creating Terror Stories Assisted by Unrecorded Interviews

Minh Quang Pham, whom I dubbed AQAP’s “graphic artist of mass destruction” because he was busted for providing graphic design skills to AQAP, got sentenced today; neither FBI nor SDNY have announced his sentence but it will be between 30 and 50 years in prison.

The government, as it tends to do, has submitted a bunch of documents as part of the sentencing process to inflate the magnitude of Pham’s acts, which largely consist of carrying a Kalashnikov he wasn’t really trained to use and helping Samir Khan make Inspire look prettier. With the documents, DOJ suggests Pham might have attacked Heathrow if he hadn’t been stopped when he was. Materials submitted as part of the sentencing process include:

The FBI 302s have the most detail, including that Awlaki gave Pham a “clean” computer that, as described, was not clean at all (a forensics report that is sealed in the docket reportedly found it had shared data with a computer that Warsame had been caught with) and the claim that Awlaki gave Pham a phone and an email account to contact him with — or to provide to new AQAP recruits (the story varies) — in the future. One 302 provides the rather incredible detail that “the email account AULAQI provided might have been a Hotmail account.”

We’re to believe that Awlaki, a guy who learned he was being wiretapped in November 2009, had been pursued using all resources of the US government for a year and a half, and who otherwise had a sophisticated understanding of US surveillance, was still using a Hotmail account in June 2011.

The final 302 (I don’t think the previous 3 include start and stop times, which is a telling omission) provides details of what Scott Shane has described as proof Anwar Awlaki was acting as a bomb making trainer close to the end of his life, based on the description of him teaching Pham, in a single day, “how to mix chemicals to make an explosive powder” that Pham used to detonate a tin can that “generated enough force to launch the tin can away from PHAM and into the air.” This was the training, the FBI implies, that AQAP gave Pham to prepare him to attack Heathrow Airport.

Here’s the thing, though: FBI didn’t record any of those interviews, in spite of an explicit policy presuming FBI will record custodial interviews that went into effect on July 11, 2014. There are exceptions FBI might, in a stretch, be claiming here (that because Pham was not yet in a formal detention center, he was not in custody, or that it was a national intelligence collecting interview that is nevertheless being used against him in sentencing; I’ve got an email in with the FBI to find out what their explanation is). But this seems like a clear-cut case, where, for their own credibility, FBI should have recorded the interviews.

Especially since Pham says they’re inaccurate.

For four days I have willfully sat with the agents to confess my association with AL-QAIDA + to make an appeal to the government for compassion. Brian said: “we are the best representatives to the government for you.”

[snip]

The agenst [sic] had the opportunity to take recording but for some reason they did not do so. I only receive the FBI statements around couple months after my interviews. I then realize that they have omitted possibly 30 – 40% of what I’ve said, misunderstood many points + added some information I did not say. Had there been a recording, it would have shown a different picture. Had they been sincere in what they said about being “the best representatives to the government,” they would have shown me the draft of the statement for any needed correction before publishing it or have the interview recorded which would have revealed all the questions + answers.

Initially I didn’t want to tell them about the airport plot because it was something occurred in YEMEN which I never intended to do. I only want to leave YEMEN + had to accept a foreign operation. I told them that Imam ANWAR AL-AWLAQI (who was killed in a drone strike in Sept 2011) wanted me to do. The reason why I told the agents is because I felt pressured due to MATT posing the same question for 4 days, + on the 4th day he said: “Is there something they told you to do but decided not to?”

[snip]

Later at the 5th interview, the prosecutor asks me if I intended to carry out the plot, Matt intervene + said “at that point did you accept it? I made it clear that I did not intended [sic] it but I only accept it + was willing to accept any plot to go home.

The expression I got from the was that, they were trying to paint a picture oof me of intending to return to carry out the plot + had I not been arrested, I would have carried out a suicide operation at Heathrow Airport.

Obviously Pham has good reason to want to insinuate he would never have conducted the plot (but then, he was free in the UK for 5 months and didn’t take any steps to do so, not even obtaining acetone from his sister’s nail salon). Then again, obviously the FBI has good reason to want to claim that Pham was more than the graphic artist who was never really trained in fighting that the other records show him to be.

The thing is, there’s no evidence in the record that makes this Heathrow attack look credible. There are some other really funny details about this story that I hope to return to. But I’m sure the story worked to ensure Pham would spend most of the rest of his life in a US SuperMax.

Update: I guess this is why they didn’t announce Pham’s sentence: Judge Alison Nathan delayed sentencing because of conflicting stories over whether Pham really intended to attack Heathrow, or whether he used that as a way to get out of Yemen (though she reportedly is inclined to side with the government). I think this is a sound result: the government actually hasn’t proven this attack was real (again, I have questions about whether even Awlaki designed it to be real). Moreover, Pham will get 30 years in any case.

The FBI might have a more (or less — who knows!!) credible case had they taped these interviews. Now they have to make their case in court.

CIA’s Idea of Digital Innovation: Attempt (and Fail) to Buy an Existing News Service

A week ago Sunday, the WSJ reported that Twitter had cut off an In-Q-Tel funded company, Dataminr, from sharing data with the intelligence community.

Twitter Inc. cut off U.S. intelligence agencies from access to a service that sifts through the entire output of its social-media postings, the latest example of tension between Silicon Valley and the federal government over terrorism and privacy.

The move, which hasn’t been publicly announced, was confirmed by a senior U.S. intelligence official and other people familiar with the matter.

Twitter spokesperson Nu Wexler told me this is actually long-standing policy.

Dataminr uses public Tweets to sell breaking news alerts to media organizations such as Dow Jones and government agencies such as the World Health Organization, for non-surveillance purposes. We have never authorized Dataminr or any third party to sell data to a government or intelligence agency for surveillance purposes. This is a longstanding Twitter policy, not a new development.

Indeed, as CNBC reported later in the week, this has been something the IC has been badgering Twitter about since September. Just as interesting, CNBC reports that CIA’s OSINT center wants the data.

It has not been clear exactly which entity in the vast U.S. intelligence apparatus was involved in the dispute with Twitter, but sources tell CNBC that it was a division of the CIA known as Open Source Enterprise. According to the CIA’s website, that unit is a part of the CIA’s directorate of digital innovation. It was created in the wake of recommendations by both the 9-11 Commission and the Iraq Weapons of Mass Destruction Commission that CIA focus more effort on gathering “open source” information — data that is available to anyone in the public, as opposed to information that can only be gathered through covert means.

 

Which raises even more questions for me about the timing of the request, and of these misleading claims from anonymous intelligence officials. Why go public now? It’s not like CIA is any more popular than it was six months ago (though it’s possible the pressure is tied to CIA’s reorganization).

As far as the request, it’s interesting CIA never made this demand after the Arab Spring, which CIA missed entirely because it was listening to Omar Suleiman rather than watching social media like the rest of us. That would have been the moment to make this case (I assume CIA and FBI both use more targeted tracking of ISIS Twitter).

Instead, the request seems more likely tied to the roll out of the larger organization, CIA’s new McKinsey-recommended Directorate of Digital Innovation last October. I would have thought that a claimed commitment to developing digital expertise would have led CIA to set up its own scraping system, rather than trying to purchase the same service news outlets use (to questionable value, according to some people commenting on this). Unless, of course, CIA’s goal is Dataminr’s “firehose,” including all Americans’ Twitter.

This incident ought to raise two questions: one why is CIA lying to ratchet pressure up on Twitter. And two, what the heck is the Digital Innovation Center for if this is the kind of “innovation” they’re seeking?

CIA Achieves a Whole New Scale of Torture Evidence Destruction

I once made a list of all the evidence of torture the CIA or others in the Executive Branch destroyed.

I thought it time to start cataloging them, to keep them all straight.

  • Before May 2003: 15 of 92 torture tapes erased or damaged
  • Early 2003: Dunlavey’s paper trail “lost”
  • Before August 2004: John Yoo and Patrick Philbin’s torture memo emails deleted
  • June 2005: most copies of Philip Zelikow’s dissent to the May 2005 CAT memo destroyed
  • November 8-9, 2005: 92 torture tapes destroyed
  • July 2007 (probably): 10 documents from OLC SCIF disappear
  • December 19, 2007: Fire breaks out in Cheney’s office

(I put in the Cheney fire because it happened right after DOJ started investigating the torture tape destruction.)

Since that time, there have been at least two more:

  • CIA stealing back copies of cables implicating the President from SSCI servers
  • Someone modifying one of the black sites at which the 9/11 defendants were tortured, with Gitmo approval

But apparently, last summer, CIA’s Inspector General destroyed something else: both his disk-based and server based copies of the Torture Report.

But last August, a chagrined Christopher R. Sharpley, the CIA’s acting inspector general, alerted the Senate intelligence panel that his office’s copy of the report had vanished. According to sources familiar with Sharpley’s account, he explained it this way: When it received its disk, the inspector general’s office uploaded the contents onto its internal classified computer system and destroyed the disk in what Sharpley described as “the normal course of business.” Meanwhile someone in the IG office interpreted the Justice Department’s instructions not to open the file to mean it should be deleted from the server — so that both the original and the copy were gone.

At some point, it is not clear when, after being informed by CIA general counsel Caroline Krass that the Justice Department wanted all copies of the document preserved, officials in the inspector general’s office undertook a search to find its copy of the report. They discovered, “S***, we don’t have one,” said one of the sources briefed on Sharpley’s account.

Sharpley was apologetic about the destruction and promised to ask CIA director Brennan for another copy. But as of last week, he seems not to have received it; after Yahoo News began asking about the matter, he called intelligence committee staffers to ask if he could get a new copy from them.

Sharpley also told Senate committee aides he had reported the destruction of the disk to the CIA’s general counsel’s office, and Krass passed that information along to the Justice Department. But there is no record in court filings that department lawyers ever informed the judge overseeing the case that the inspector general’s office had destroyed its copy of the report.

Two key parts of this story: Sharpley appears to have no idea who decided to nuke the report off the IG server. Hmmmm.

And DOJ has been suppressing this detail in filings in the FOIAs for the Torture Report itself (which may be what led Dianne Feinstein to make an issue of it last week).

Click through if you want a really depressing list of all the ways Richard Burr is trying to disappear the report.

I guess I shouldn’t be surprised that the entire report got disappeared. But destroying the whole thing is rather impressive.

Update: Katherine Hawkins reminds of of another one: the hood Manadel al-Jamadi wore when he suffocated to death while being tortured disappeared under circumstances the CIA IG considered non-credible.

You Can Get Clearance If You Always Believed in the Fourth Amendment, But Not if You’re a Fourth Amendment Convert

Screen Shot 2016-05-14 at 8.43.08 PMOn Thursday night at 11PM, in advance of an Oversight and Government Reform hearing scheduled at 9AM Friday, James Clapper’s office rolled out a new policy integrating the use of social media in security clearance reviews. Basically, the government can use public social media in making security clearance determinations, but can’t ask for your password, friend you to collect information, or access your non-public social media activity. They additionally claim, implausibly, they won’t keep anything unnecessary to make such determinations.

Even taking those caveats in good faith, the policy should not be regarded as a risk-free policy, because government bureaucrats don’t have a perfect record with attribution (something National Counterintelligence Director William Evanina admitted in the hearing) and they have a still worse one with irony. Plus, the history of FBI prosecutions of alleged terrorists for RTs suggests they will read certain actions in social media with a certain kind of intent that may not be true.

Worse, Evanina said two ridiculous things in the hearing that raises real questions about the policy and his ability to implement it fairly.

First, Thomas Massie asked Evanina whether political views would be considered. Massie, after having noted the committee notes suggested a social media search might have identified Snowden as a potential threat (Snowden did spend time online before his classified career, but nothing would have obviously flagged him), also noted their similar political contribution histories. “Do you take into account political support when you’re doing background research on social media?” After Evanina explained the background check would not review that, Massie asked specifically about whether a person supported a candidate who was strong on the Fourth Amendment.”Your belief in Fourth Amendment would not have any predication on whether you could hold or maintain a security clearance,” Evanina replied in response.

Breaking! You can believe in the Fourth Amendment and get a security clearance. 

Only, that’s not true if you’re a convert to the Fourth Amendment (as Snowden arguably was, given his online comments).

Barely mentioned at the hearing were the guidelines the Intelligence Authorization had laid out for this policy, which I wrote about here and here.

(C) publicly available information, whether electronic, printed, or other form, including relevant security or counterintelligence information about the covered individual or information that may suggest ill intent, vulnerability to blackmail, compulsive behavior, allegiance to another country, change in ideology, or that the covered individual lacks good judgment, reliability, or trustworthiness; [my emphasis]

One thing Congress explicitly wanted to measure was “change in ideology” (I believe this was always included in security clearance determinations, but it has a much different impact if one is reviewing everyone’s candid thoughts), the kind of thing when someone who once railed against leakers in public comments goes on to question whether surveillance has gotten out of hand, as Snowden did.

Or as a lot of other people did, when they considered the impact of their dragnets.

The other ridiculous thing Evanina said came in response to Ted Lieu’s concerns about the number of Asian Americans charged with spying charges that later collapsed (something that Judy Chu has also been hitting on). Lieu also mentioned that since the public reports of spying cases collapsing, he has heard from some people who believe they were denied security clearances because of their (presumably Chinese-American) ethnicity.

So Lieu asked Evanina if that’s ever a consideration.

Evanina not only claimed that it is not a consideration (in spite of the case of the man who was denied clearance because of the USAID-tied organization his wife worked for), but he offered up that in his 19 years at FBI, they had also never used ethnicity as a reason for investigation.

There’s one ginormous problem with that claim (which was sworn).

Evanina was at FBI when, in 2008, they changed the Domestic Investigations and Operations Guide (as noted above) to permit consideration of First Amendment protected activities, including religion, among the things FBI Agents may take into account during an investigation.

FBI employees may take appropriate cognizance of the role religion may play in the membership or motivation of a criminal or terrorism enterprise. If, for example, affiliation with a certain religious institution or a specific religious sect is a known requirement for inclusion in a violent organization that is the subject of an investigation, then whether a person of interest is a member of that institution or sect is a rational and permissible consideration. Similarly, if investigative experience and reliable intelligence reveal that members of a terrorist or criminal organization are known to commonly possess or exhibit a combination of religion-based characteristics or practices (e.g., group leaders state that acts of terrorism are based in religious doctrine), it is rational and lawful to consider such a combination in gathering intelligence about the group-even if any one of these, by itself, would constitute an impermissible consideration.

Worse, Evanina served in a policy role when, in 2011, they reinforced this permission in that year’s DIOG.

Admittedly, religion is not the same thing as ethnicity. But for a number of ethnicities, including Chinese and Muslim Arabs, religion can stand in for a kind of ethnicity.

It may be that Evanina was foolish enough to raise his FBI experience, which might be entirely unrelated to the practice of security clearance evaluations. But he did. And that raised some really good reasons (on top of the known record and explicit direction from Congress about what this social media approach should entail) to doubt his assurances to the committee about civil liberties problems with this policy.

I get that it makes sense to review someone’s social media to see if they can keep a secret. But it is also the case that the IC generally, the FBI in particular, and Evanina personally, are not credible on this point.

While It Is Reauthorizing FISA Amendments Act, Congress Should Reform Section 704

On Tuesday, the Senate Judiciary Committee had a public hearing on FISA Amendments Act reauthorization, which will take place in the next year. The hearing was treated as solely the reauthorization of Section 702 of FAA. But in fact, all of Title VII needs to be reauthorized. Which is why I think Congress should reform Section 704 — or at the very least, as a whole lot more question about how it (and by association EO 12333) is used against Americans.

As a reminder, here are the parts of Title VII authorizing collection (there are also some transparency provisions):

  • 702: Permits the government to target non-US persons located overseas based on only a FISA review of broad certifications; includes PRISM and upstream
  • 703: Requires NSA to obtain an individualized order when targeting electronic communications of US persons overseas; this is basically for collection on US persons overseas with the assistance of providers in the US
  • 704: Requires NSA to obtain an individualized order when targeting US persons overseas using means for which they’d have a reasonable expectation of privacy in the US; this is basically for spying on US persons overseas collecting overseas
  • 705a: Permits the government to apply for joint applications, effectively permitting them to do both 703 and 704 authorized spying
  • 705b: Permits the Attorney General to approve spying for US persons targeted under traditional FISA when they are located overseas

My interest in Section 704 stems from a fact that no one appears to know: NSA doesn’t use Section 703 of FAA. At all.

There’s a still-unreleased Snowden document that states that explicitly (something to the effect of, “to date [which date was probably 2012], the NSA has not used this authority”). But even some public documents make this clear. For example, the Q1 2012 Intelligence Oversight Board report, which broke out reporting for all FISA authorities used (the hidden authority is probably Title IV), lists only 704 and 705b, not 703 or 705a. More starkly, a 2010 NSA IG Report (PDF 10) discussing FISA authorities only names traditional FISA, Section 704, and Section 705b, which may mean 705a is not used either.

Screen Shot 2016-05-13 at 3.38.08 AM

I’ve been asking what this means since I first figured this out (so for two years) and not a single person has been able to explain it to me. To be fair, most simply don’t believe me that Section 703 is not used and so just blow off my question.

I think this means one (or a combination) of several things:

  • No surveillance of Americans overseas takes place with the assistance of US providers (which would trigger 703)
  • The government has some interpretation — perhaps a corollary to their claim that Americans have no expectation of privacy for any international communications — that claims they can use a lower standard for people overseas
  • The government uses traditional FISA even on people located overseas

I used to think it was this last one: that the government just went through the trouble of getting a traditional order every time it targeted a US person, meaning they’d also give the person full FISA notice if that person were prosecuted. Except I think using a traditional order to target an American overseas is actually a violation (!) that gets reported to IOB.

If it’s not that, then you would think it’d have to be the wacky interpretation, the middle option. After all, Americans are at least as likely to use Gmail as foreigners are, so to get the Gmail of Americans overseas, the NSA would presumably ask Google for assistance, and therefore trigger 703, unless there were a wacky legal interpretation to bypass that. There are things that make it clear NSA has a great deal of redundancy in its collection, even with PRISM collection, which makes it clear they do double dip, obtaining even Gmail overseas and domestically (which is why they’d have GCHQ hack Google’s overseas fiber). It’s possible, though, that the NSA conducts so much bulk collection overseas it is actually easier (or legally more permissive) to just collect US person content from bulk collections obtained overseas, thereby bypassing any domestic provider and onerous legal notice. I suppose it’s also possible that NSA now uses 703 (my proof they don’t dates to 2012 or earlier), having had to resort to playing by the rules as more providers lock up their data better in the wake of the Snowden revelations. (Note, Mieke Eoyang has an interesting FAA suggestion that would require exclusivity when NSA accesses content from US providers, thereby preventing them from stealing Google data overseas.)

My first point, then, in raising 704 is to say Congress and advocates should use this opportunity to figure out which of these options it is. Why is it that members of Congress still brag about having got NSA to accede to 703 when 703 is not used? What does it mean that they’re not using it?

But here’s my other concern. If the first option is the answer — that is, if overseas collection is so thorough that NSA can collect on someone, if there are reasons to, without using any provider, it means there’s a shit-ton of American content — both of people located in the US and overseas — accessible in NSA’s collections. We knew that. But it’d say even US provider content is available in great volume (which would be doable for any of them not using encryption in motion).

My other concern is that Americans overseas may actually have more protections than Americans in the US.

FISA is pretty strict about location: the 700s only apply to people overseas, except for 705b, which is supposed to be tied to someone mostly in the US but heading to China on a business trip. Screwing that up is a violation that gets reported to the IOB.

Add to that the fact that (as I understand it) NSA can access already-collected US person content collected under EO 12333 with the approval of the Attorney General.

If I’m right about all this (a big if, given how little anyone knows about this), then it would say accessing the bulk collected communications of an American overseas would require a 704 order, whereas accessing the bulk collected communications of an American who was herself located in the US, but whose communications were located overseas, would only require AG approval. That can’t be right, can it? Perhaps 704 gives the government some added authorities, such as the ability to target someone using XKeyscore. But we know NSA has collected “vast troves” of US person data overseas, and we know that Assistant Attorney General John Carlin doesn’t think his department should oversee that collection at all! Carlin stated clearly in February 2014 that even “vast troves” of US person data collected “incidentally” (which, under bulk collection, would mean all of it transiting overseas) get no FISA protection.

So in addition to politely requesting that Congress figures out how it is that NSA doesn’t use Section 703, at all, I’d also like to politely suggest that 704 protections or the equivalent be extended to Americans who are located in the US but whose communications have gone to Europe without them.

There has been a lot of discussion about how the NSA accesses the content of US persons who are themselves located in the US but whose communications get collected “overseas.” That has been treated as an EO 12333 issue (and as such, something that would take pulling teeth to get the Executive to agree to change). But there’s a mirror image of that problem, I think, in the Section 704 question. So perhaps shoring up Section 704 is the way to deal with both?

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