The Government Argues that Edward Snowden Is a Recruiting Tool

As I noted in my post on the superseding indictment against Julian Assange, the government stretched the timeline of the Conspiracy to Hack count to 2015 by describing how WikiLeaks helped Edward Snowden flee to Russia. DOJ seems to be conceiving of WikiLeaks’ role in helping Snowden as part of a continuing conspiracy designed to recruit more leakers.

Let me make clear from the onset: I am not endorsing this view, I am observing where I believe DOJ not only intends to head with this, but has already headed with it.

Using Snowden as a recruitment tool

After laying out how Chelsea Manning obtained and leaked files that were listed in the WikiLeaks Most Wanted list (the Iraq Rules of Engagement and Gitmo files, explicitly, and large databases more generally; here’s one version of the list as entered into evidence at Manning’s trial), then describing Assange’s links to LulzSec, the superseding Assange indictment lays out WikiLeaks’ overt post-leak ties and claimed ties to Edward Snowden.

83. In June 2013, media outlets reported that Edward J. Snowden had leaked numerous documents taken from the NSA and was located in Hong Kong. Later that month, an arrest warrant was issued in the United States District Court for the Eastern District of Virginia, for the arrest of Snowden, on charges involving the theft of information from the United States government.

84. To encourage leakers and hackers to provide stolen materials to WikiLeaks in the future, ASSANGE and others at WikiLeaks openly displayed their attempts to assist Snowden in evading arrest.

85. In June 2013, a WikiLeaks association [Sarah Harrison, described as WLA-4 in the indictment] traveled with Snowden from Hong Kong to Moscow.

86. On December 31, 2013, at the annual conference of the Chaos Computer Club (“CCC”) in Germany, ASSANGE, [Jacob Appelbaum] and [Harrison] gave a presentation titled “Sysadmins of the World, Unite! A Call to Resistance.” On its website, the CCC promoted the presentation by writing, “[t]here has never been a higher demand for a politically-engaged hackerdom” and that ASSANGE and [Appelbaum] would “discuss what needs to be done if we re going to win.” ASSANGE told the audience that “the famous leaks that WikiLeaks has done or the recent Edward Snowden revelations” showed that “it was possible now for even a single system administrator to … not merely wreck[] or disabl[e] [organizations] … but rather shift[] information from an information apartheid system … into the knowledge commons.” ASSANGE exhorted the audience to join the CIA in order to steal and provide information to WikiLeaks, stating, “I’m not saying doing join the CIA; no, go and join the CIA. Go in there, go into the ballpark and get the ball and bring it out.”

87. At the same presentation, in responding to the audience’s question as to what they could do, [Appelbaum] said “Edward Snowden did not save himself. … Specifically for source protection [Harrison] took actions to protect [Snowden] … [i]f we can succeed in saving Edward Snowden’s life and to keep him free, then the next Edward Snowden will have that to look forward to. And if look also to what has happened to Chelsea Manning, we see additionally that Snowden has clearly learned….”

The following section describes how, “ASSANGE and WikiLeaks Continue to Recruit,” including two more paragraphs about the Most Wanted Leaks:

89. On May 15, 2015, WikiLeaks tweeted a request for nominations for the 2015 “Most Wanted Leaks” list, and as an example, linked to one of the posts of a “Most Wanted Leaks” list from 2009 that remained on WikiLeaks’s website.

[snip]

92. In June 2015, to continue to encourage individuals to hack into computers and/or illegaly obtain and disclose classified information to WikiLeaks, WikiLeaks maintained on its website a list of “The Most Wanted Leaks of 2009,” which stated that documents or materials nominated to the list must “[b]e likely to have political, diplomatic, ethical or historical impact on release … and be plausibly obtainable to a well-motivated insider or outsider,” and must be “described in enough detail so that … a visiting outsider not already familiar with the material or its subject matter may be able to quickly locate it, and will be motivated to do so.”

Effectively, Snowden is included in this indictment not because the government is alleging any ties between Snowden and WikiLeaks in advance of his leaks (Snowden’s own book lays out reasons to think there was more contact between him and Appelbaum than is publicly known, but the superseding Assange indictment makes no mention of any contacts before Snowden’s first publications), but because WikiLeaks used their success at helping Snowden to flee as a recruiting pitch.

Snowden admits Harrison got involved to optimize his fate

This is something that Snowden lays out in his book. First, he addresses insinuations that Assange only helped Snowden out of selfish reasons.

People have long ascribed selfish motives to Assange’s desire to give me aid, but I believe he was genuinely invested in one thing above all—helping me evade capture. That doing so involved tweaking the US government was just a bonus for him, an ancillary benefit, not the goal. It’s true that Assange can be self-interested and vain, moody, and even bullying—after a sharp disagreement just a month after our first, text-based conversation, I never communicated with him again—but he also sincerely conceives of himself as a fighter in a historic battle for the public’s right to know, a battle he will do anything to win. It’s for this reason that I regard it as too reductive to interpret his assistance as merely an instance of scheming or self-promotion. More important to him, I believe, was the opportunity to establish a counterexample to the case of the organization’s most famous source, US Army Private Chelsea Manning, whose thirty-five-year prison sentence was historically unprecedented and a monstrous deterrent to whistleblowers everywhere. Though I never was, and never would be, a source for Assange, my situation gave him a chance to right a wrong. There was nothing he could have done to save Manning, but he seemed, through Sarah, determined to do everything he could to save me.

This passage is written to suggest Snowden believed these things at the time, describing what “seemed” to be true at the time. But it’s impossible to separate it from Appelbaum’s explicit comparison of Manning and Snowden at CCC in December 2013.

Snowden then describes what he thinks Harrison’s motive was.

By her own account, she was motivated to support me out of loyalty to her conscience more than to the ideological demands of her employer. Certainly her politics seemed shaped less by Assange’s feral opposition to central power than by her own conviction that too much of what passed for contemporary journalism served government interests rather than challenged them.

Again, this is written to suggest Snowden believed it at the time, though it’s likely what he has come to believe since.

Then Snowden describes believing, at that time, that Harrison might ask for something in exchange for her help — some endorsement of WikiLeaks or something.

As we hurtled to the airport, as we checked in, as we cleared passport control for the first of what should have been three flights, I kept waiting for her to ask me for something—anything, even just for me to make a statement on Assange’s, or the organization’s, behalf. But she never did, although she did cheerfully share her opinion that I was a fool for trusting media conglomerates to fairly guard the gate between the public and the truth. For that instance of straight talk, and for many others, I’ll always admire Sarah’s honesty.

Finally, though, Snowden describes — once the plane entered into Chinese airspace and so narratively at a time when there was no escaping whatever fate WikiLeaks had helped him pursue — asking Harrison why she was helping. He describes that she provided a version of the story that WikiLeaks would offer that December in Germany: WikiLeaks needed to be able to provide a better outcome than the one that Manning suffered.

It was only once we’d entered Chinese airspace that I realized I wouldn’t be able to get any rest until I asked Sarah this question explicitly: “Why are you helping me?” She flattened out her voice, as if trying to tamp down her passions, and told me that she wanted me to have a better outcome. She never said better than what outcome or whose, and I could only take that answer as a sign of her discretion and respect.

Whatever has been filtered through time and (novelist-assisted) narrative, Snowden effectively says the same thing the superseding indictment does: Assange and Harrison went to great lengths to help Snowden get out of Hong Kong to make it easier to encourage others to leak or hack documents to share with WikiLeaks. I wouldn’t be surprised if these excerpts from Snowden’s book show up in any Assange trial, if it ever happens.

Snowden’s own attempt to optimize outcomes

Curiously, Snowden did not say anything in his book about his own efforts to optimize his outcome, which is probably the most interesting new information in Bart Gellman’s new book, Dark Mirror (the book is a useful summary of some of the most important Snowden disclosures and a chilling description of how aggressively he and Askhan Soltani were targeted by foreign governments as they were reporting the stories). WaPo included the incident in an excerpt, though the excerpt below is from the book.

Early on in the process, Snowden had asked Gellman to publish the first PRISM document with a key, without specifying what key it was. When WaPo’s editors asked why Gellman’s source wanted them to publish a key, Gellman finally asked.

After meeting with the Post editors, I remembered that I could do an elementary check of the signature on my own. The result was disappointing. I was slow to grasp what it implied.

gpg –verify PRISM.pptx.sig PRISM.pptx

gpg: Signature made Mon May 20 14:31:57 2013 EDT

using RSA key ID ⬛⬛⬛⬛⬛⬛⬛⬛

gpg: Good signature from “Verax”

Now I knew that Snowden, using his Verax alter ego, had signed the PowerPoint file himself. If I published the signature, all it would prove to a tech-savvy few was that a pseudonymous source had vouched for his own leak. What good would that do anyone?

In the Saturday night email, Snowden spelled it out. He had chosen to risk his freedom, he wrote, but he was not resigned to life in prison or worse. He preferred to set an example for “an entire class of potential whistleblowers” who might follow his lead. Ordinary citizens would not take impossible risks. They had to have some hope for a happy ending.

To effect this, I intend to apply for asylum (preferably somewhere with strong Internet and press freedoms, e.g. Iceland, though the strength of the reaction will determine how choosy I can be). Given how tightly the U.S. surveils diplomatic outposts (I should know, I used to work in our U.N. spying shop), I cannot risk this until you have already gone to press, as it would immediately tip our hand. It would also be futile without proof of my claims—they’d have me committed—and I have no desire to provide raw source material to a foreign government. Post publication, the source document and cryptographic signature will allow me to immediately substantiate both the truth of my claim and the danger I am in without having to give anything up. . . . Give me the bottom line: when do you expect to go to print?

Alarm gave way to vertigo. I forced myself to reread the passage slowly. Snowden planned to seek the protection of a foreign government. He would canvass diplomatic posts on an island under Chinese sovereign control. He might not have very good choices. The signature’s purpose, its only purpose, was to help him through the gates.

How could I have missed this? Poitras and I did not need the signature to know who sent us the PRISM file. Snowden wanted to prove his role in the story to someone else. That thought had never occurred to me. Confidential sources, in my experience, did not implicate themselves—irrevocably, mathematically—in a classified leak. As soon as Snowden laid it out, the strategic logic was obvious. If we did as he asked, Snowden could demonstrate that our copy of the NSA document came from him. His plea for asylum would assert a “well-founded fear of being persecuted” for an act of political dissent. The U.S. government would maintain that Snowden’s actions were criminal, not political. Under international law each nation could make that judgment for itself. The fulcrum of Snowden’s entire plan was the signature file, a few hundred characters of cryptographic text, about the length of this paragraph. And I was the one he expected to place it online for his use.

Gellman, Poitras, and the Post recognized this would make them complicit in Snowden’s flight and go beyond any journalistic role.

After some advice from WaPo’s lawyers, Gellman made it clear to Snowden he could not publish the key (and would not have, in any case, because the slide deck included information on legitimate targets he and the WaPo had no intent of publishing).

We hated the replies we sent to Snowden on May 26. We had lawyered up and it showed. “You were clear with me and I want to be equally clear with you,” I wrote. “There are a number of unwarranted assumptions in your email. My intentions and objectives are purely journalistic, and I will not tie them or time them to any other goal.” I was working hard and intended to publish, but “I cannot give you the bottom line you want.”

This led Snowden to withdraw his offer of exclusivity which — as Gellman tells the story — is what led Snowden to renew his efforts to work with Glenn Greenwald. The aftermath of that decision led to a very interesting spat between Gellman and Greenwald — to read that, you should buy the book.

To be clear, I don’t blame Snowden for planning his first releases in such a way as to optimize the chances he wouldn’t spend the rest of his life in prison. But his silence on the topic in his own account, even while he adopted the WikiLeaks line about their goal of optimizing his outcome, raises questions about any link between Harrison’s plans and Snowden’s.

The government is using Snowden as inspiration in other cases

The superseding Assange indictment is the first place I know of where the government has specifically argued that WikiLeaks’ assistance to Snowden amounted to part of a criminal conspiracy (though it is totally unsurprising and I argued that it was clear the government was going there based on what they had argued in the Joshua Schulte case).

But it’s not the first place they have argued a tie between Snowden as inspiration and further leaks.

The indictment for Daniel Everette Hale, the guy accused of sharing documents on the drone program with Jeremy Scahill, makes it clear how Hale’s relationship with Scahill blossomed just as the Snowden leaks were coming out (and this detail makes it clear he’s the one referred to in Citizenfour as another source coming forward).

15. On or about June 9, 2013, the Reporter sent HALE an email with a link to an article about Edward Snowden in an online publication. That same day. Hale texted a friend that the previous night he had been hanging out with journalists who were focused on his story. Hale wrote that the evening’s events might provide him with “life long connections with people who publish work like this.”

Hale launched a fairly aggressive (and if it weren’t in EDVA, potentially an interesting) challenge to the Espionage Act charges against him. It included (but was not limited to) a Constitutional motion to dismiss as well as a motion to dismiss for selective prosecution. After his first motions, however, both the government’s response and Hale’s reply on selective prosecution were (and remain, nine months later) sealed.

But Hale’s reply on the Constitutional motion to dismiss was not sealed. In it, he makes reference to what remains sealed in the selective prosecution filings. That reference makes it clear that the government described searching for leakers who had been inspired “by a specific individual” who — given the mention of Snowden in Hale’s indictment — has to be Snowden.

Moreover, as argued in more detail in Defendant’s Reply in support of his Motion to Dismiss for Selective or Vindictive Prosecution (filed provisionally as classified), it appears that arbitrary enforcement – one of the risks of a vague criminal prohibition – is exactly what occurred here. Specifically, the FBI repeatedly characterized its investigation in this case as an attempt to identify leakers who had been “inspired” by a specific individual – one whose activity was designed to criticize the government by shedding light on perceived illegalities on the part of the Intelligence Community. In approximately the same timeframe, other leakers reportedly divulged classified information to make the government look good – by, for example, unlawfully divulging classified information about the search for Osama Bin Laden to the makers of the film Zero Dark Thirty, resulting in two separate Inspector General investigations.3 Yet the investigation in this case was not described as a search for leakers generally, or as a search for leakers who tried to glorify the work of the Intelligence Community. Rather, it was described as a search for those who disclosed classified information because they had been “inspired” to divulge improprieties in the intelligence community.

Hale argued, then, that the only reason he got prosecuted after some delay was because the FBI had a theory about Snowden’s role in inspiring further leaks.

Judge Liam O’Grady denied both those motions (and most of Hale’s other motions), though without further reference to Snowden as an inspiration. But I’m fairly sure this is not the only case where they’re making this argument.

Twenty Years of Continuity

Last night, the US killed Qassem Suleimani in a targeted killing on Iraqi soil. DOD claimed they killed him in a “defensive” move to stop his plotting against US diplomats. Nancy Pelosi already made clear that Trump did not properly brief Congress (though Lindsey Graham says he got briefed while golfing at Mar a Lago).

Most experts fear this will escalate (indeed, recent events resemble a Colin Kahl think piece about how the US and Iran could escalate into a war without meaning to).  That’d be bad enough under a sane president, with competent advisors. But Trump has fired most of the experts in his White House and has been pardoning war criminals (and is thinking of pardoning more). Which means we may well be mobilizing service members to fight for a Commander in Chief they can’t expect to think through the use of force, but who has already demanded that his subordinates violate norms and laws partly because he has a temper problem and partly because he doesn’t understand how slow negotiation and strategy works.

But I also feel like this moment has been coming for twenty years, enabled by people who disdain Trump but nevertheless get treated as sane.

There’s our response to 9/11, which people on both sides of the aisles believed was license to break all the rules the US had claimed to adhere to since World War II. We embraced torture because some of the most experienced policy makers ever claimed to be at a loss to know how to respond to a threat they had been warned about. Yet those policy makers knew how to work the system, to have in-house lawyers write up OLC memos excusing the crimes in advance.

Then there’s the Iraq War, the forever stain. Those same experienced policy makers used the opportunity of 9/11 to launch a war of a choice, and then bungle it, in part out of the same impatience and imperiousness policy elites now criticize Trump for, in part by putting incompetent ideologues in charge of cleaning up the mess.

Along the way, we used tools meant to fight terrorism as a way to villainize Iran, in part because the Neocons wanted to avoid political negotiation with Iran at all costs and in part because figuring out a way to deal with Iran’s willingness to use proxies was too difficult otherwise.

It didn’t really get better with Obama. When faced with the challenge of an American citizen inciting attacks, Anwar al-Awlaki, he carried out a sustained effort to kill him using the same kind of targeted kill that Trump just used, excused by yet more shoddy OLC memos.

It seemed so easy, he did it again to take out Osama bin Laden, in a made-for-campaign-season strike that didn’t do much to address terrorism but did expand our claims to operate on other countries’ sovereign territory.

Then there was Libya, where the US made certain agreements to limit the action against Qaddafi, only to violate them and leave the country in chaos.

The Republicans’ cynical sustained response to Benghazi, yet another made-for-campaign-season event, made it their party line stance that any attack on the US must be met by a show of dick-wagging and force, regardless of the efficacy. Trump even made that stance a key part of his nominating convention. Benghazi-palooza made a response like yesterday’s targeted killing inevitable, even though a bunch of the same Republicans recognize that Trump doesn’t understand the fire he’s playing with.

Behind it all is a belief that the most powerful nation in the world shouldn’t have to tolerate any resistance to its power, and may break rules and norms — to say nothing of causing untold chaos in other places — to quash it. Purportedly sane mainstream politicians set the precedent that it was okay to commit war crimes as a misguided shortcut in defending America. A Nobel Prize winner normalized assassination. And both parties have enabled events and legal arguments that leave Trump with few restraints.

And yet the chattering classes will pretend this is something new with Trump.

On the Curious Timing of Daniel Everette Hale’s Arrest

By all appearances, the FBI executed a search on the home of Daniel Everette Hale, an intelligence analyst the government has accused of being Jeremy Scahill’s source for his Drone Papers reporting, on August 8, 2014. In the search, they found a thumb drive with a PowerPoint on drone operations that he had printed off at work over five months earlier.

By that time, Hale had already printed out all 23 documents, unrelated to his work at Leidos, that are charged in his indictment. He also had an unclassified document he printed off at work on his home computer. He had a separate thumb drive with Tails on it, the operating system that the Intercept recommended users use to share files. Somewhere along the way, the government obtained Hale’s location data.

The August 2014 search was done a month after the Intercept published — in July 2014 — the first of the documents Hale printed out, and fourteen months before the Intercept first published that drone war PowerPoint, in October 2015. So the entire time the Intercept was publishing these documents, the government had solid evidence on who their suspected source was.

By the time FBI did that search, Hale had been in contact with Scahill — in largely unsecure form — for fifteen months. Even before Hale left the Air Force in July 2013, Hale had done a Google search on the NSA unclassified computer assigned to him for details on Scahill’s Dirty Wars book tour. He attended an event at Politics and Prose that month, and told a “confidant” he had met Scahill, who wanted to tell his story. Hale played a public role in some of Scahill’s events about the US war on terror. They emailed (including about Edward Snowden) through the summer and spoke at least once on the phone.

It wasn’t until September 2013 that Scahill and Hale switched to Jabber (but even there, the government has evidence of at least three of their Jabber chats before Hale started printing off files from work), perhaps because Hale at least once texted Scahill about getting on Jabber, apparently the day before he printed out a bunch of drone war documents.

All that suggests that, as soon as a month after the Intercept first published documents from Hale, the government had all the same evidence they’ve shown in this indictment substantiating the very strong case that Hale was Scahill’s source.

That was almost five years ago (the statute of limitations for the 793 Espionage Act crimes with which they’ve charged Hale is 10 years).

Just as curious, the government indicted Hale (in EDVA, based off work Maryland FBI Agents did) on March 7, apparently with a newly installed grand jury. The indictment has been sealed since then, waiting for Hale’s arrest in Nashville.

It is not at all surprising that the government indicted Hale. Even under the Obama Administration’s aggressive prosecutions of whistleblowing leakers, the case would be among the type they prosecuted (even though the drone documents he allegedly leaked exposed really damning details about a dysfunctional side of our war on terror, so the prosecution might have embarrassed Obama). The Trump Administration has gotten even more aggressive with journalists.

According to his criminal cover sheet, Hale is represented by Abbe Lowell who, along with being Jared Kushner’s lawyer, is also one of the best lawyers in the country on defending leak cases.

10 Years of emptywheel: Key Non-Surveillance Posts 2013-2015

Happy Birthday to me! To us! To the emptywheel community!

On December 3, 2007, emptywheel first posted as a distinct website. That makes us, me, we, ten today.

To celebrate, over the next few days, the emptywheel team will be sharing some of our favorite work from the last decade. I’ll be doing 4 posts featuring some of my most important or — in my opinion — resilient non-surveillance posts, plus a separate post bringing together some of my most important surveillance work. I think everyone else is teeing up their favorites, too.

Putting together these posts has been a remarkable experience to see where we’ve been and the breadth of what we’ve covered, on top of mainstays like surveillance. I’m really proud of the work I’ve done, and proud of the community we’ve maintained over the years.

For years, we’ve done this content ad free, relying on donations and me doing freelance work for others to fund the stuff you read here. I would make far more if I worked for some free-standing outlet, but I wouldn’t be able to do the weedy, iterative work that I do here, which would amount to not being able to do my best work.

If you’ve found this work valuable — if you’d like to ensure it remains available for the next ten years — please consider supporting the site.

2013

What a Targeted Killing in the US Would Look Like

Amid now-abandoned discussions about using the FISA court to review targeted killing, I pointed out that a targeted killing in the US would look just like the October 28, 2009 killing of Imam Luqman Abdullah.

Article II or AUMF? “A High Level Official” (AKA John Brennan) Says CIA Can Murder You

When the second memo (as opposed to the first 7-page version) used to authorize the killing of Anwar al-Awlaki, it became clear that OLC never really decided whether the killing was done under Article II or the AUMF. That’s important because if it’s the latter, it suggests the President can order anyone killed.

John Brennan Sworn in as CIA Director Using Constitution Lacking Bill of Rights

I know in the Trump era we’re supposed to forget that John Brennan sponsored a whole lot of drone killing and surveillance. But I spent a good deal of the Obama Administration pointing that out. Including by pointing out that the Constitution he swore to protect and defend didn’t have the First, Fourth, Fifth, and Sixth amendment in it.

2014

The Day After Government Catalogs Data NSA Collected on Tsarnaevs, DOJ Refuses to Give Dzhokhar Notice

I actually think it’s unreasonable to expect the government’s dragnets to prevent all attacks. But over and over (including with 9/11), NSA gets a pass when we do reviews of why an attack was missed. This post lays out how that happened in the Boston Marathon case. A follow-up continued that analysis.

A Guide to John Rizzo’s Lies, For Lazy Journalists

Former CIA General Counsel John Rizzo lies, a lot. But that doesn’t seem to lead journalists to treat his claims skeptically, nor did it prevent them from taking his memoir as a statement of fact. In this post I summarized all the lies he told in the first 10 pages of it.

Obama to Release OLC Memo after Only 24 Congressional Requests from 31 Members of Congress

Over the year and a half when one after another member of Congress asked for the OLC memos that authorized the drone execution of Anwar al-Awlaki, I tracked all those requests. This was the last post, summarizing all of them.

The West’s Ideological Vacuum

With the rise of Trump and the success of Russia intervening in US and European politics, I’ve been talking about how the failures of US neoliberal ideology created a vacuum to allow those things to happen. But I’ve been talking about the failures of our ideology for longer than that, here in a post on ISIS.

KSM Had the CIA Believing in Black Muslim Convert Jihadist Arsonists in Montana for 3 Months

There weren’t a huge number of huge surprises in the SSCI Torture Report for me (indeed, its scope left out some details about the involvement of the White House I had previously covered). But it did include a lot of details that really illustrate the stupidity of the torture program. None was more pathetic than the revelation that KSM had the CIA convinced that he was recruiting black Muslim converts to use arson in Montana.

2015

The Jeffrey Sterling Trial: Merlin Meets Curveball

A big part of the Jeffrey Sterling trial was CIA theater, with far more rigorous protection for 10 year old sources and methods than given to 4 year old Presidential Daily Briefs in the Scooter Libby trial. Both sides seemed aware that the theater was part of an attempt, in part, to help the CIA gets its reputation back after the Iraq War debacle. Except that the actual evidence presented at trial showed CIA was up to the same old tricks. That didn’t help Sterling at all. But neither did it help CIA as much as government prosecutors claimed.

The Real Story Behind 2014 Indictment of Chinese Hackers: Ben Rhodes Moves the IP Theft Goal Posts

I’ve written a lot about the first indictment of nation-state hackers — People’s Liberation Army hackers who compromised some mostly Pittsburgh located entities, including the US Steel Workers. Contrary to virtually all the reporting on the indictment, the indictment pertained to things we nation-state hack for too: predominantly, spying on negotiations. The sole exception involves the theft of some nuclear technology from Westinghouse that might have otherwise been dealt to China as part of a technology transfer arrangement.

Obama’s Terrorism Cancer Speech, Carter’s Malaise Speech

In response to a horrible Obama speech capitulating to Republican demands he treat the San Bernardino attack specially, as Islamic terrorism, I compared the speech to Jimmy Carter’s malaise speech. Along the way, I noted that Carter signed the finding to train the mujahadeen at almost the exactly moment he gave the malaise speech. The trajectory of America has never been the same since.

Other Key Posts Threads

10 Years of emptywheel: Key Non-Surveillance Posts 2008-2010

10 Years of emptywheel: Key Non-Surveillance Posts 2011-2012

The Right to Bear Drones

The Trump Administration has a plan to infringe on Americans’ right to bear drones.

It has submitted language carving out an exception in surveillance and hacking laws such that it can track and destroy drones. The idea is a government agent (military or civilian) will be able to track and destroy any drone over a covered facility or operation, with no legal recourse for the owner of the drone.

Covered facilities are basically any stationary structure an agency wants to designate. The legislative language describes the following as covered operations:

(A) any operation that is conducted in the United States by a member of the Armed Forces or a Federal officer, employee, agent, or contractor, that is important to public safety, law enforcement, or national or homeland security, and is designated by the head of a department or agency, consistent with the Federal Government-wide policy issued pursuant to subsection (d); and

(B) may include, but is not limited to, search and rescue operations; medical evacuations; wildland firefighting; patrol and detection monitoring of the United States border; a National Security Special Event or Special Event Assessment Ratings event; a fugitive apprehension operation or law enforcement investigation; a prisoner detention, correctional, or related operation; securing an authorized vessel, whether moored or underway; authorized protection of a person; transportation of special nuclear materials; or a security, emergency response, or military training, testing, or operation.

At one level, I’m sympathetic to the need. There have definitely been cases where drones have disrupted the work of firefighters and drones flying over sporting events (which might be classified as a National Security Special Event) certainly could pose a terrorist threat. And while I’m not aware of any public descriptions of drones being used to spy on military facilities or training, its inclusion here suggests it has happened (which also might explain the seeming urgency). Also, given the emphasis in the language on detecting drones, it’s clear that there are drones going unnoticed that are surveilling facilities and operations.

Still, there are a whole bunch of activities in this list that also rightly deserve oversight, at least from the press. And this language would give the Federal government the ability to blow any press drone out of the air with impunity.

So while I recognize the need to limit drone overflights of certain kinds of activities, this also seems like the completely wrong way to go about infringing on citizens’ right to bear drones. At the very least, the language should include some kind of requirement for notice and appeal, such that the government can’t just arbitrarily decide that it should be immune from the surveillance (literally, “over-sight”) of citizens.

Yah, These ARE The Droids We Have Been Looking For And Fearing

I did not always write about it so much here, but I got fairly deep into “Deflategate” analysis and law when it was going on. Because it was fascinating. I met so many lawyers, professors and others, it was bonkers. Have remained friends with many, if not most, of all of them. One is Alexandra J. Roberts, which is kind of funny because she was not necessarily one of the major players. Yet, she is one of the enduring benefits I have come to love from the bigger picture.

Today, Ms Roberts advises of some R2D2 like cop robots. I “might” have engaged in some frivolity in response. But, really, it is a pretty notable moment.

Police droids on the ground? Police drones in the air? You think Kyllo will protect you from a Supreme Court with Neil Gorsuch on it? Hell, you think Merrick Garland would not have done what he has done all of his life and sign off on ever greater law enforcement collection and oppression? Not a chance in hell. Neither Gorsuch, nor Garland, would ever have penned what Scalia did in Kyllo:

It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology. For example, as the cases discussed above make clear, the technology enabling human flight has exposed to public view (and hence, we have said, to official observation) uncovered portions of the house and its curtilage that once were private. See Ciraolo, supra, at 215. The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy.

So, with no further adieu, here, via the Bo Globe, is the deal:

There’s a new security officer in town. But this one runs on batteries, not Dunkin’ Donuts.

Next time you’re visiting the Prudential Center, don’t be alarmed if you bump into a large, rolling robot as it travels the corridors where shoppers pop in and out of stores.

No, it’s not an oversized Roomba on the loose. It’s the “Knightscope K5,” an egg-shaped autonomous machine equipped with real-time monitoring and detection technology that allows it to keep tabs on what’s happening nearby.

Marvelous! R2D2 is making us all safer!

Nope. Sorry. Safe streets, broken windows, and “cop on the beat” policing cannot be accomplished by a tin can.

Just Say No to this idiotic and lazy policing bullshit. The next thing you know, the tin can will be probable cause. And Neil Gorsuch will help further that craven “good faith” reliance opinion in a heartbeat.

Parting Shot: Holy hell, we have our first reference to hate crimes for anti-cop robot violence! See here.

Frankly, having been in the field for three decades, I think the thought that cops are proper “hate crime” victims is absurd. Honestly, all “hate crimes” laws are completely absurd as they create different and more, and less, valuable classes of human crime victims. This may sound lovely to you in the safety of your perch, where you want to lash out at the evil others.

But if the “all men are created equal” language in the Declaration of Independence is to be given the meaning that so many demagogues over American history assign to it, then the “hate crimes” segregation and preference of one set of human victims over others, is total unfathomable bullshit.

That is just as to humans. Let’s not even go to the “victim’s rights” of squeaky ass little R2D2 tin cans.

Are Covert Ops Spinning Free from Presidential Findings (Again)?

Around the same time Donald Trump was dodging all responsibility for the catastrophically botched Yemen raid, he was planning to give his generals more authority to launch such raids on their own, without his approval.

President Donald Trump has signaled that he wants his defense secretary, retired Marine Gen. Jim Mattis, to have a freer hand to launch time-sensitive missions quickly, ending what U.S. officials say could be a long approval process under President Barack Obama that critics claimed stalled some missions by hours or days.

[snip]

Despite the controversy, Trump has signaled that he wants to operate more like the CEO he was in the private sector in such matters, and delegate even more power to Mattis, which may mean rewriting one of President Barack Obama’s classified Presidential Policy Directives on potentially lethal operations in countries where the U.S. is not officially involved in combat.

Meanwhile, Trump is also moving drone-killing back to the CIA after a protracted effort by the Obama Administration to put them exclusively on DOD’s hands.

President Donald Trump has given the Central Intelligence Agency secret new authority to conduct drone strikes against suspected terrorists, U.S. officials said, changing the Obama administration’s policy of limiting the spy agency’s paramilitary role and reopening a turf war between the agency and the Pentagon.

The new authority, which hadn’t been previously disclosed, represents a significant departure from a cooperative approach that had become standard practice by the end of former President Barack Obama’s tenure: The CIA used drones and other intelligence resources to locate suspected terrorists and then the military conducted the actual strike. The U.S. drone strike that killed Taliban leader Mullah Mansour in May 2016 in Pakistan was the best example of that hybrid approach, U.S. officials said.

The Obama administration put the military in charge of pulling the trigger to promote transparency and accountability. The CIA, which operates under covert authorities, wasn’t required to disclose the number of suspected terrorists or civilian bystanders it killed in drone strikes. The Pentagon, however, must publicly report most airstrikes.

These may be unrelated developments (though, as referenced by DB, they both would have been governed under Barack Obama’s drone killing rulebook, because it actually applied to all targeted killing, whether conducted by drone or raid).

But they portent a potentially horrible development: diminished involvement of the President in the granular details of Findings that approve covert operations.

Findings are the presidential documents meant to outline a covert operation and give notice to Congress’ Intelligence Committees that they’re happening. They’re supposed to be updated as programs change. While there’s a lot to complain about the secrecy of them, they at least serve as a way to make a political figure — the President — responsible for whatever goes on in covert operations.

If Trump delegates more authority for targeted killing while at the same time moving more of it back into CIA’s hands, that likely means more covert targeted killings will happen without the kind of close involvement that occurred for much (though not all) of Obama’s Administration.

There are two problems with that. First, it makes it more likely the CIA will discount political consequences of individual operations — not because the CIA is not politically savvy (in areas like this they’re more savvy than the Reality Show president), but because they will be able to deny any screw-ups.

It also makes it more likely the White House and CIA will end up in mutual recriminations the next time there’s a really unpopular strike, with CIA officers bearing the brunt of Trump’s abdication of the role he’s supposed to play in covert operations.

There’s recent precedent for such a problem: the torture program, where the Finding signed by George Bush (crafted by Dick Cheney) let CIA set its own policy, which left the CIA without cover when the shit started hitting the fan.

I assume the CIA is well aware of the risks of such a structure (though Gina Haspel’s elevation to Deputy Director after being a key player in many of the worst parts of the torture scandal may make her less worried about the risks, given that she has ultimately been protected). But the men and women at the implementing stage of such a policy shift may not have much leeway to fight it.

Anwar al-Awlaki: Two Days from Finalized 302 to OLC Authorization for Execution

After a multiple year FOIA fight, Scott Shane has liberated the interrogation 302s from Umar Farouk Abdulmutallab. Kudos to Shane and NYT.

As Shane recalls in his story on the reports, I have noted problems about the government’s public claims about Abdulmutallab’s interrogation (even aside from conflicts with his other confessions and the terms under which the interrogation took place). The reports in some ways confirm those concerns — as I’ll write in some follow-up posts. But, more important, they also answer the most fundamental ones.

Some of the reports absolutely support the government’s claim that from Abdulmutallab’s first interrogations in January 2010, he attributed the instructions to wait until he was over the US to detonate his underwear bomb to Anwar al-Awlaki, which was always a key basis for the government’s argument they could execute the cleric.

Near the end of [Abdulmutallab’s — he is referred to as UM throughout these reports] stay at the camp, Aulaqi gave UM final specific instructions: that the operation should be conducted on a U.S. airliner;

[snip]

Aulaqi told UM: “Wait until you are in the US, then bring the plane down.” [PDF 24]

As a number of people have observed, the reports also show that (aside from the isolation later alleged by Abdulmutallab’s lawyers and whatever leverage the FBI got his family to exert), the FBI and the High Value Interrogation Group got a great deal of cooperation from Abdulmutallab without physical coercion, with Abdulmutallab providing intelligence on AQAP into the summer.

In this post, though, I want to note how the reports coincide with two other events from that period of 2010.

As many of you know, there’s a big, still somewhat unsolved problem with FBI interrogations. At the time, FBI didn’t record interrogations (and they still create big loopholes around a recently imposed rule that custodial interviews must be recorded). Rather, the FBI agent would take notes and subsequently write up those notes into a “302,” which is what the FBI calls their reports on interviews.

In Abdulmutallab’s case, there was an interesting lag between the time his interrogators conducted the interrogation and when they wrote it up. For example, his January 29, 2010 interrogation (and all the ones from the subsequent intense period of interrogation), were not dictated until February 5, 2010.

And those dictations did not start to get transcribed into finished 302s until starting on February 17, 19 days after the interrogation.

Let me be clear: there is nothing suspect about the delay. The timing cues in the interrogation makes it clear these initial interrogations were full-day interrogations. Add in the preparation time interrogators would have to do overnight, and it makes sense that they wouldn’t dictate out their notes until the end of the week (though that is yet another reason FBI Agents should always make recordings of interrogations). Moreover, the one week delay is not so long that an agent would forget substantial parts of the interrogation. Plus, a federal defender was present and could have challenged any problems with this report.

So we should assume the report is a fair indication of the conduct of the interrogation.

I’m more interested in the timing of other events in early 2010.

Consider the public comments Director of National Intelligence Dennis Blair made on February 3, at a House Intelligence hearing. Responding to a Dana Priest article from the prior week, Blair assured Congress they get specific permission before they drone kill an American citizen (there are a bunch of still unreleased memos that suggest they were actually still working on this policy).

“We take direct actions against terrorists in the intelligence community,” he said. “If we think that direct action will involve killing an American, we get specific permission to do that.”

He also said there are criteria that must be met to authorize the killing of a U.S. citizen that include “whether that American is involved in a group that is trying to attack us, whether that American is a threat to other Americans. Those are the factors involved.”

Obliquely asked about Awlaki, Blair responded that they would only kill an American “for taking action that threatens Americans or has resulted in it” — a standard that falls short of what OLC would eventually adopt, but one it appears they believed they had already surpassed with Awlaki.

“So there is a framework and a policy for what’s hypothetically a radical born cleric … who’s living outside of the United States, there’s a clear path as to when this person may be engaging in free speech overseas and when he may have moved into recruitment or when he may have moved into actual coordinating and carrying out or coordinating attacks against the United States?”

Mr. Blair responded that he would rather not discuss the details of this criteria in open session, but he assured: “We don’t target people for free speech. We target them for taking action that threatens Americans or has resulted in it.”

That comment was made after Abdulmutallab had implicated Awlaki in giving him final orders, but before it had been dictated, much less transcribed.

Then there’s the first of two OLC memos written to authorize Awlaki’s execution. That was finalized on February 19, 2010, just two days after the first 302 implicating Awlaki in final instructions for the attack was finished.

That is, only two days elapsed from the time that the one document we know of memorializing Abdulmutallab’s confession for David Barron to authorize Awlaki’s execution.

That’s also not that surprising. After all, the government deemed (and had, before this time) Awlaki to be an urgent threat, and they shouldn’t be faulted for wanting to prepare to respond to any opportunity to neutralize it, as quickly as possible. Moreover, unlike the subsequent OLC memo, this one doesn’t appear to analyze the intelligence on Awlaki closely — it just deems him a “senior leader of Al-Qa’ida in the Arabian Peninsula” and moves on to analysis about whether killing him constitutes assassination.

But the timing of all this at least suggests that there were more communications about these issues than have been identified in ACLU’s FOIAs on the subject. They at least suggest (and this would not be surprising in the least, either) that there were less formal communications about Abdulmutallab’s interrogation provided to Washington DC well before this 302 was finalized.

Again — that’s not surprising. I imagine a secure cable went out to Washington after the interrogation on the 29th — if not during Abdulmutallab’s afternoon prayer break — saying that Abdulmutallab had implicated Awlaki in providing the final instructions making sure that the US would be targeted.

But it is an interesting data point on how deliberative the process behind authorizing Awlaki’s execution was.

Trump Fulfills Another Campaign Promise: Kills 8-Year Old American Girl

Back on December 5, 2015, Donald Trump said that if he were elected President, he would take out the families of terrorists.

The other thing with the terrorists is you have to take out their families, when you get these terrorists, you have to take out their families. They care about their lives, don’t kid yourself. When they say they don’t care about their lives, you have to take out their families,

He repeated the promise to kill terrorists’ families later on the campaign trail.

On Sunday, Trump made good on that campaign promise by killing Nora al-Awlaki, the 8 year old American citizen daughter of Anwar al-Awlaki in a JSOC raid. A SEAL team member, Ryan Owens, was also killed in the raid.

Obama, of course, killed Nora’s then 16-year old brother, Abdulrahman, just weeks after having killed the children’s father in a drone strike.

There are competing stories about the purpose and the outcome of the raid, as NBC lays out here. Thus far, however, there has been little acknowledgment that Donald Trump ran on doing just this, killing the 8 year old children of terrorists, which should raise real questions about how so many (possibly in the 40s?) civilians got killed in the raid. Was that the point?

 

 

Monday: A Different Ark

[Caution: some content in this video is NSFW] Today’s Monday Movie is a short film by Patrick Cederberg published three years ago. This short reflects the love life of a youth whose age is close to that of my two kids. A few things have changed in terms of technology used — I don’t think either Facebook or Chatroulette is as popular now with high school and college students as it was, but the speed of internet-mediated relationships is the same. It’s dizzying to keep up with kids who are drowning in information about everything including their loved ones.

Their use of social media to monitor each other’s commitment is particularly frightening; it’s too easy to misinterpret content and make a snap decision as this movie shows so well. Just as scary is the ease with which one may violate the privacy of another and simply move on.

Imagine if this youngster Noah had to make a snap decision about someone with whom they weren’t emotionally engaged. Imagine them using their lifetime of video gaming and that same shallow, too-rapid decision-making process while piloting a drone.

Boom.

Goodness knows real adults with much more life experience demonstrate bizarre and repeated lapses in judgment using technology. Why should we task youths fresh out of high school and little education in ethics and philosophy with using technology like remote surveillance and weaponized drones?

Speaking of drones, here’s an interview with GWU’s Hugh Gusterson on drone warfare including his recommendations on five of books about drones.

A, B, C, D, USB…

  • USBKiller no longer just a concept (Mashable) –$56 will buy you a USB device which can kill nearly any laptop with a burst of electricity. The only devices known to be immune: those without USB ports. The manufacturer calls this device a “testing device.” Apparently the score is Pass/Fail and mostly Fail.
  • Malware USBee jumps air-gapped computers (Ars Technica) — Same researchers at Israel’s Ben Gurion University who’ve been working on the potential to hack air-gapped computers have now written software using a USB device to obtain information from them.
  • Hydropower charger for USB devices available in 2017 (Digital Trends) — Huh. If I’m going to do a lot of off-grid camping, I guess I should consider chipping into the Kickstarter for this device which charges a built-in 6,400mAh battery. Takes 4.5 hours to charge, though — either need a steady stream of water, or that’s a lot of canoe paddling.

Hackety-hack, don’t walk back

  • Arizona and Illinois state elections systems breached (Reuters) — An anonymous official indicated the FBI was looking for evidence other states may also have been breached. The two states experienced different levels of breaches — 200K voters’ personal data had been downloaded from Illinois, while a single state employee’s computer had been compromised with malware in Arizona, according to Reuters’ report. A report by CSO Online explains the breaches as outlined in an leaked FBI memo in greater detail; the attacks may have employed a commonly-used website vulnerability testing application to identify weak spots in the states’ systems. Arizona will hold its primary election tomorrow, August 30.
  • Now-defunct Australian satellite communications provider NewSat lousy with cyber holes (Australian Broadcasting Corp) — ABC’s report said Australia’s trade commission and Defence Science Technology Group have been attacked frequently, but the worst target was NewSat. The breaches required a complete replacement of NewSat’s network at a time when it was struggling with profitability during the ramp-up to launch the Lockheed Martin Jabiru-1 Ka-band satellite. China was named as a likely suspect due to the level of skill and organization required for the numerous breaches as well as economic interest. ABC’s Four Corners investigative reporting program also covered this topic — worth watching for the entertaining quotes by former CIA Director Michael Hayden and computer security consultant/hacker Kevin Mitnick in the same video.
  • Opera software users should reset passwords due to possible breach (Threatpost) — Thought users’ passwords were encrypted or hashed, the browser manufacturer still asks users to reset passwords used to sync their Opera accounts as the sync system “showed signs of an attack.” Norwegian company Opera Software has been sold recently to a Chinese group though the sale may not yet have closed.

That’s a wrap for now, catch you tomorrow! Don’t forget your bug spray!

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