Is Obama Threatening the “Special Relationship” to Hide Torture?

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I noted, when David Cameron was in town, that his Justice Secretary, Kenneth Clarke, was pushing to expand “closed material proceedings” as a way to better protect secret information. The effort was a response, Clarke claimed, to courts forcing the government to release information about Binyam Mohamed’s torture, which ended up revealing the US was using some torture techniques before the Bybee Memo purportedly approved torture.

Now, Cameron’s government is ratcheting up the fear-mongering, claiming that the US withheld information about a terrorist threat 18 months ago because of the the Mohamed release.

The CIA warned MI6 that al-Qaeda was planning an attack 18 months ago, but withheld detailed information because of concerns it would be released by British courts.

British intelligence agencies were subsequently forced to carry out their own investigations, according to Whitehall sources.

Several potential terrorists were identified with links to a wider European plot, but it is still not known whether the British authorities have uncovered the full extent of the threat.

I flew through London 18 months ago during what I suspect was this terror threat. It was the kind of threat where one airline–American–had rolled out the full heightened security theater, but another–Delta–had nothing special, both on the same day.

That kind of terrorist threat.

If it is true the CIA is withholding such information (I’m not saying I buy that the US withheld information from a serious threat), then consider what this means. Back in August 2006, the US (specifically, Dick Cheney and Jose Rodriguez) betrayed the “Special Relationship” by asking the Pakistanis to arrest one of the plotters in the liquid planes plot, which in turn forced the Brits to roll up their own investigation before they had solidified the case against the plotters. Several of the plotters had to be tried two times to get a conviction. The Bush Administration did all this as an election stunt.

And yet we’re the ones purportedly complaining about information sharing?

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Who Brought Key Al Qaeda Forums Down?

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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.

Ssort of.

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.

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Big Brother Works Both Sides of the Atlantic

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I was rather surprised that there seemed to be more outrage Sunday about the UK’s announced plan to roll out the same ability to monitor everyone’s online activity that the US set up after 9/11 then over Eric Lichtblau’s report–based on the ACLU’s FOIA efforts–revealing that cops all over the country are using our smart phones to spy on us.

At least from the published reports, it sounds like the Brits want to be able to do through GCHQ what NSA and FBI have been doing with hoovered telecom records for years.

A new law – which may be announced in the forthcoming Queen’s Speech in May – would not allow GCHQ to access the content of emails, calls or messages without a warrant.

But it would enable intelligence officers to identify who an individual or group is in contact with, how often and for how long. They would also be able to see which websites someone had visited.

[snip]

“What this is talking about doing is not focusing on terrorists or criminals, it’s absolutely everybody’s emails, phone calls, web access…” he told the BBC.

“All that’s got to be recorded for two years and the government will be able to get at it with no by your leave from anybody.”

He said that until now anyone wishing to monitor communications had been required to gain permission from a magistrate.

Plus, such plans will likely face more of a hurdle in Parliament than such schemes to expand surveillance face in Congress.

Meanwhile, the materials collected from all over the country via ACLU’s state affiliates show that local police are using some of the same approaches–things like communities of interest–that our massive data collection supports.

And as ACLU’s summary makes clear that not just the Feds using Secret PATRIOT, but local cops, are using cell phones to track people with no warrants.

Most law enforcement agencies do not obtain a warrant to track cell phones, but some do, and the legal standards used vary widely. Some police departments protect privacy by obtaining a warrant based upon probable cause when tracking cell phones. For example, police in the County of Hawaii, Wichita, and Lexington, Ky. demonstrate probable cause and obtain a warrant when tracking cell phones. If these police departments can protect both public safety and privacy by meeting the warrant and probable cause requirements, then surely other agencies can as well.

Unfortunately, other departments do not always demonstrate probable cause and obtain a warrant when tracking cell phones. For example, police in Lincoln, Neb. obtain even GPS location data, which is more precise than cell tower location information, on telephones without demonstrating probable cause. Police in Wilson County, N.C. obtain historical cell tracking data where it is “relevant and material” to an ongoing investigation, a standard lower than probable cause.

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SCOTUS Limits Privacy Act Just as NCTC Expands Access to US Person Data

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Well, this is rather inauspicious timing.

The conservatives on SCOTUS have sharply limited the teeth of the Privacy Act–limiting damages to out-of-pocket damages.

The Supreme Court has dealt privacy advocates a huge setback. By a 5-3 majority, the court ruled that people who sue the government for invading their privacy can only recover out-of-pocket damages. And whistle-blower lawyers say that leaves victims who suffer emotional trouble and smeared reputations with few if any options.

Justice Samuel Alito and all four of his conservative colleagues turned back a challenge from a pilot named Stan Cooper. (Justice Elena Kagan did not participate in the case.)

Cooper said the Social Security Administration, which was sending him disability benefits, had improperly shared his HIV status with transportation officials.

In 1974, while the abuses of Watergate were fresh in people’s minds, Congress made that kind of unauthorized information-sharing illegal under the Privacy Act. The law said the U.S. had to pay actual damages to victims.

But in Wednesday’s ruling, Alito said actual damages represent monetary harm, not mental or emotional distress.

That’s absurd, according to the dissent by Justice Sonia Sotomayor. Sotomayor said that means people who suffer severe emotional distress can’t get any money — but people with minor out-of-pocket expenses can.

The whole point of the Privacy Act was to impose some kind of real penalty on the government for using the damage it collects on you in a way that ends up hurting you. Without pain or suffering damages, it will make it very difficult for aggrieved people to find legal representation to sue the government for violations. And without pain and suffering damages, the penalties would generally be so small, in any case, as to make violating your privacy the cost of doing business.

And of course, this happens just as the government decided to make its agency databases accessible to the National Counterterrorism Center for data mining to find terrorists. The Privacy Act would have been one of the few limits on what the government can do with this data. For example, the Guidelines on this new access warns that “All disseminations under these Guidelines must be … permissible under the Privacy Act,” which would normally limit dissemination (in this context) to law enforcement purposes. But now that Alito has gutted the protections of the Privacy Act, there is less to prevent some gung ho counterterrorism professional to leak information about who looks like a terrorist when you data mine their personal data. Or to use the now-collated information (the Privacy Act protections allowing you to see your own data reside with the originator here, which I suspect will mean you don’t get to see what your data gets collated with) for more personal, nefarious purpose.

These two events are unrelated. SCOTUS didn’t do this because of the government’s new power grab at NCTC. But SCOTUS’ decision does make that power grab still more dangerous.

Note: For those of you interested in these issues, I urge you to stop by FDL’s Book Salon on Saturday at 5. Tim Weiner will speak about his generally very good book, Enemies. The salon will be particularly interesting, though, because the ACLU’s Mike German will host. Not only does German’s FBI background make him an ideal reviewer of this history of the FBI’s abuses, but he’s probably the best person to address the book’s most glaring fault: inaccurate and wildly over-optimistic treatment of the FBI’s Domestic Investigations and Operations Guide.

What Went Into the FBI Intelligence That Will Be in NCTC’s Database for Five Years?

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Last year, after Spencer Ackerman exposed some of the Islamophobic materials the FBI was using to train its counterterrorism agents, the FBI conducted a review of its training materials to weed out such counterproductive materials.

Unsurprisingly, as Spencer reports today, they found additional offensive and just downright stupid materials.

A sample of that possibly harmful training comes from a document on “Establishing Relationships,” which instructed: “Never attempt to shake hands with an Asian. Never stare at an Asian. Never try to speak to an Arab female prior to approaching the Arab male first.”

Another document, titled “Control and Temper,” contrasted the “Western Mind” with that of the “Arab World.” The “Western” mind possessed an “even keel” and “outbursts” of emotion were “exceptional.” In the “Arab World,” by contrast, “Outburst and Loss of Control [is] Expected.” A bullet point below asked, “What’s wrong with frequent Jekyll & Hyde temper tantrums?”

But now, they’re trying to just bury it–they’re withdrawing it, sure, but they’re not doing anything to counteract the damage this may have done in training agents.

Which makes this detail exposed in the FBI’s own review all the more troubling:

One FBI PowerPoint — disclosed in a letter Durbin sent to FBI Director Robert Mueller on Tuesday and shared with Danger Room — stated: “Under certain circumstances, the FBI has the ability to bend or suspend the law to impinge on the freedom of others.”

Among the things FBI refuses to do in response to this report is to review intelligence reports collected subsequent to being trained that–among other things–sometimes it’s okay to “suspend the law to impinge on the freedom of others.”

For example, was any of the “intelligence” gathered during Muslim outreach activities in the San Francisco Bay Area collected by such Agents? As the ACLU reported yesterday, here are some of “intelligence collection” activities done in the guise of outreach.

The FBI visited the Seaside Mosque five times in 2005 for “mosque outreach,” and documented congregants’ innocuous discussions regarding frustrations over delays in airline travel, a property purchase of a new mosque, where men and women would pray at the new mosque, and even the sale of date fruits after services. It also documented the subject of a particular sermon, raising First Amendment concerns. Despite an apparent lack of information related to crime or terrorism, the FBI’s records of discussions with mosque leaders and congregants were all classified as “secret,” marked “positive intelligence,” and disseminated outside the FBI.
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Abdulelah Haider Shaye and Anwar al-Awlaki’s Emails

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Al-Jazeera did another long piece on the imprisonment of Abdulelah Haider Shaye, whose story Jeremy Scahill first covered here. There are two details worth note. First, just after 15:40, AJE describes the White House’s non-denial denial of their involvement with Shaye’s continued imprisonment.

Well, we got in touch with the White House on this last week, and this is what we were told: “The President’s comments have absolutely nothing to do with Shaye’s reporting or his criticism of Yemen or the United States. A Yemeni court, not a US court, convicted him.”

It’s an odd comment because if, as alleged, Shaye’s imprisonment has something to do with being an AQAP propagandist, then it would have to do with his journalism. Furthermore, given the language the White House itself included in its readout of the February 2, 2011 conversation between President Obama and Ali Abdullah Saleh…

President Obama called President Ali Abdullah Saleh of Yemen on February 2 to welcome the significant reform measures that President Saleh had announced earlier that day, and to stress that President Saleh now needs to follow-up his pledge with concrete actions.  President Obama asked that Yemeni security forces show restraint and refrain from violence against Yemeni demonstrators who are exercising their right to free association, assembly, and speech.  The President also told President Saleh that it is imperative that Yemen take forceful action against Al Qaida in the Arabian Peninsula (AQAP) to protect innocent lives in Yemen as well as abroad.  Finally, President Obama expressed concern over the release of Abd-Ilah al-Shai, who had been sentenced to five years in prison for his association with AQAP.  President Saleh thanked the President for U.S. support and committed to continuing and strengthening relations with the United States. [my emphasis]

… It’s quite clear that regardless of whose courts convicted Shaye, Obama’s comments played a key role in his continued imprisonment.

The irony? In the same conversation Obama pressured Saleh to show restraint with Yemenis exercising their right to speech. So now the White House is issuing non-denial denials about a conversation in which they criticized Saleh for his violent repression by attributing responsibility to Yemen’s legal system?

Nevertheless, I find it significant that, rather than offer some explanation for Obama’s pressure to keep Shaye imprisoned, the White House is now dodging the issue.

Particularly given this detail Scahill reveals just after 20:00.

What I’m going to say right now about it is the extent of what I can say about any specific media organization. My understanding from sources within one of those media organizations [ABC, WaPo, and NYT] that you cited, and a major American media organization, was that they were approached by the US government earlier on, before Shaye was actually locked up and put in prison and sentenced by this court, that a major US media organization that had done work with him was approached and told that they should stop working with him, suggesting that his relationship to Al Qaeda was more than just journalist source relationship and that organization stopped working with Abdulelah Haider. To my knowledge, none of those organizations have take an editorial stance calling for his release or even or even condemning the sham nature of his trial.

That is, presumably around the time ABC and WaPo and NYT were all relying on Shaye to get reporting from Yemen, the government approached at least one of them and told them to stop, which they did.

I find that particularly interesting given some reporting I reviewed yesterday while working on posts assessing whether the new NCTC data-sharing guidelines would have prevented the Nidal Hasan and Undiebomber attacks.

On November 16, 2009, 11 days after Nidal Hasan’s attack and about a week after Pete Hoekstra revealed the email exchanges, the WaPo published a story based on a Shaye interview with Anwar al-Awlaki which provides far more information about the emails Awlaki exchanged with Hasan before the attack.

Shaea allowed a Post reporter to view a video recording of a man who closely resembles pictures of Aulaqi sitting in front of his laptop computer reading the e-mails, and to hear an audiotape in which a man, who like Aulaqi speaks English with an American accent, discusses his e-mail correspondence with Hasan.

The quotes in this article are based on Shaea’s handwritten notes. Shaea said he was allowed to review the e-mails between Hasan and Aulaqi, but they were not provided to The Post.

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Michael Leiter Went Skiing … And All We Got Were Vast Expansions of Data-Sharing and No T-Shirt

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In its short summary of the new NCTC data sharing guidelines, Lawfare said this:

The White House has passed new ”Guidelines for Access, Retention, Use, and Dissemination. . . of Information in Datasets Containing Non-Terrorism Information.” Read the new guidelines here. The Times tells us that the National Counterterrorism Center can now ”retain private information about Americans when there is no suspicion that they are tied to terrorism” for 5 years, instead of the previous 6 months. You can thank Umar Farouk Abdulmutallab for that. The Wall Street Journal and the Post also have the story. [my emphasis]

Actually, no.

I guess you can’t blame Michael Leiter for going skiing right after the UndieBomber attack. But when the report on the 14 failures that led us to miss the attack was released, it was pretty clear the National Counterterrorism Center–Leiter’s unit–deserved most of the blame.

Leiter wasn’t fired. He served over a year longer.

We didn’t do the most basic thing we could have done in response to the UndieBomber attack–hold those who failed accountable.

Instead, we’re now rolling back Americans’ privacy yet again, because those in charge would prefer to trade citizens’ civil liberties for actual accountability for failure.

It’s easy for folks like Lawfare to blame all this on the terrorist and none of it on the people who failed to defend against terrorism. And ultimately, that means the rest of us pay because Michael Leither chose to ski instead of ensuring we found terrorists.

The “Oversight” over NCTC’s Not-Terrorist-Terrorist Database

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Back when John Negroponte appointed him to be the Director of National Intelligence’s Civil Liberties Protection Officer, Alexander Joel admitted he had no problem with Cheney’s illegal domestic wiretap program.

When the NSA wiretapping program began, Mr. Joel wasn’t working for the intelligence office, but he says he has reviewed it and finds no problems. The classified nature of the agency’s surveillance work makes it difficult to discuss, but he suggests that fears about what the government might be doing are overblown.

“Although you might have concerns about what might potentially be going on, those potentials are not actually being realized and if you could see what was going on, you would be reassured just like everyone else,” he says.

That should trouble you, because he’s the cornerstone of oversight over the National Counterterrorism Center’s expanded ability to obtain and do pattern analysis on US person data.

The Guidelines describe such oversight to include the following:

  • Periodic spot checks overseen by CLPO to make sure database use complies with Terms and Conditions
  • Periodic reviews to determine whether ongoing use of US person data “remains appropriate”
  • Reporting (the Guidelines don’t say by whom) of any “significant failure” to comply with guidelines; such reports go to the Director of NCTC, the ODNI General Counsel, the CLPO, DOJ (it doesn’t say whom at DOJ), and the IC Inspector General; note, the Guidelines don’t require reporting to the Intelligence Oversight Board, which should get notice of significant failures
  • Annual reports from the Director of NCTC on an (admittedly worthwhile) range of metrics on performance to the Guidelines; this report goes to the CLPO, ODNI General Counsel, the IC IG, and–if she requests it–the Assistant Attorney General for National Security

There are a few reasons to be skeptical of this. First, rather than replicate the audits recently mandated under the PATRIOT Act–in which the DOJ Inspector General develops the metrics, these Guidelines have NCTC develop the metrics themselves. And they’re designed to go to the CLPO, who officially reports to the NCTC head, rather than an IG with some independence.

That is, to a large extent, this oversight consists of NCTC reporting to itself.

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Does NCTC Have the Minimal Data Security to Guard Its New Not-Terrorist-Terrorist Database?

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As I noted here and here, yesterday the Director of National Intelligence and DOJ rolled out new Guidelines allowing the National Counterterrrorism Center to acquire non-terrorist datasets from federal agencies–including US person data–so they can do pattern analysis on those datasets and pass off the resulting data to other agencies.

When intelligence officials wanted to explain to Charlie Savage how this would work, they pointed to a State Department dataset–visa applications–as one dataset NCTC might now access directly.

A person from Yemen applies for a visa and lists an American as a point of contact. There is no sign that either person is a terrorist. Two years later, another person from Yemen applies for a visa and lists the same American, and this second person is a suspected terrorist.

Under the existing system, they said, to discover that the first visa applicant now had a known tie to a suspected terrorist, an analyst would have to ask the State Department to check its database to see if the American’s name had come up on anyone else’s visa application — a step that could be overlooked or cause a delay. Under the new rules, a computer could instantly alert analysts of the connection.

The State Department is, of course, still reportedly recovering from the fact that because of DOD’s lax network security, 250,000 diplomatic cables got liberated for the world to see.

Not surprisingly, then, the new Guidelines appear determined to reassure original dataset owners that their data won’t be compromised by sharing it with NCTC (which can then share it with other elements of the Intelligence Community and even foreign allies). You can tell they’re serious about this, because it’s one of the places they occasionally use “shall” (in other sensitive areas, they use the squishier “will”).

For access to or acquisition of specific datasets, the DNI, or the DNI’s designee, shall collaborate with the data provider to identify any legal constraints, operational considerations, privacy or civil rights or civil liberties concerns and protections, or other issues, and to develop appropriate Terms and Conditions that will govern NCTC’s access to or acquisition of datasets under these guidelines.

[snip]

In addition to the [general requirements laid out for sharing this data], at the time when NCTC acquires a new dataset or a new portion of a dataset, the Director of NCTC shall determine, in writing, whether enhanced safeguards, procedures, and oversight mechanisms are needed.

Though this bold approach almost immediately breaks down, as the Guidelines not only revert to “will,” but–worse–dig out the passive voice when describing the data transfer.

Measures will be put into place to ensure that the dataset is received and stored in a manner to prevent unauthorized access and use prior to the completion of replication.

And when the Guidelines get into specifics, they use that passive “will” again.

Access to these datasets will be monitored, recorded, and audited. This includes tracking of logons and logoffs, file and object manipulation, and changes, and queries executed, in according with audit and monitoring standards applicable to the Intelligence Community.

Who will (“shall”) implement these data security measures? What if he or she fails to do so adequately?

It’s a really, really important question because–as this year’s intelligence authorizations make clear, the Intelligence Community does not yet have insider threat detection–the kind of security that would permit these audits–and they’re not going to get it until 18 months from now. Hell, they’re not even going to start getting it until 6 months from now!

(a) Initial Operating Capability.–Not later than October 1, 2012, the Director of National Intelligence shall establish an initial operating capability for an effective automated insider threat detection program for the information resources in each element of the intelligence community in order to detect unauthorized access to, or use or transmission of, classified intelligence.

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The National Counterterrorism Center Just Declared All of Us Domestic Terrorists

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I’m going to have a series of posts on the new National Counterterrorism Center data sharing guidelines. As a reminder, the whole point of these guidelines is to allow the NCTC to obtain information on US persons, dump it into their datamining, and then ultimately pass it on. In this, I’ll show how, by magic of cynical bureaucracy, the government is about to turn non-terrorist data into terrorist data.

Here’s how that trick is accomplished rhetorically. In the Background section (and in one or two other places), the document includes this language to legally justify throwing US person data into big databases to be data mined. It starts by laying out NCTC’s data mandate:

[NCTC] shall “serve as the primary organization in the United States for analyzing and integrating all intelligence possessed or acquired by the United States Government pertaining to terrorism and counterterrorism, excepting intelligence pertaining exclusively to domestic terrorists and domestic counterterrorism.

It blathers on about how NCTC also has the responsibility to request information and pass it on. This is the legal language they’re going to translate to mean the opposite of what it says.

Jumping ahead a bit, the guidelines acknowledges that NCTC is only supposed to have access, if needed, to domestic terrorism information.

In the National Security Act of 1947, as amended, Congress recognized that NCTC must have access to a broader range of information than it has primary authority to analyze and integrate if it is to achieve its missions. The Act thus provides that NCTC “may, … receive intelligence pertaining exclusively to domestic terrorism from any Federal, State, or local government or other source necessary to fulfill its responsibility and retain and disseminate intelligence.” [my emphasis]

See that? It can have all the foreign terrorism information, and then if it needs to, it can have the domestic terrorism information.

Now, going back a few lines, it takes this authority–“pertaining exclusively to domestic terrorism”–and uses it to get … everything.

NCTC’s analytic and integration efforts … at times require it to access and review datasets that are identified as including non-terrorism information in order to identify and obtain “terrorism information,” as defined in section 1016 of the Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004, as amended. “Non-terrorism information” for purposes of these Guidelines includes information pertaining exclusively to domestic terrorism, as well as information maintained by other executive departments and agencies that has not been identified as “terrorism information” as defined by IRTPA. [my emphasis]

Note that bolded section is not a citation from existing law. It is, instead, NCTC turning NCTC’s authority to sometimes get domestic terrorism information into authority to get any dataset maintained by any executive agency that NCTC believes might include some information that might be terrorism information.

Those of us in the US Government’s tax, social security, HHS, immigration, military, and other federal databases? We’ve all, by bureaucratic magic, been turned into domestic terrorists.

Now, NCTC seems to understand what a grasp this is, so it deploys one more rhetorical effort, this time noting that the Director of National Intelligence–to whom NCTC reports–also gets access to all national security intelligence.

[The National Security Act] provides that “[u]nless otherwise directed by the President, the Director of National Intelligence shall have access to all national intelligence and intelligence related to hte national security which is collected by any federal department, agency, or other entity…”

So in addition to all of us in government databases–that is, all of us–being deemed domestic terrorists, the data the government keeps to track our travel, our taxes, our benefits, our identity? It just got transformed from bureaucratic data into national security intelligence.

We are all, now, first and foremost potential terrorists now. Only after NCTC destroys our data in five years (if they don’t find some excuse to keep it before then) will we become citizens again.

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