Pompeo Likens Wikileaks’ Release of CIA’s Hacking Tools to Philip Agee

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In a speech designed to generate headlines, CIA Director Mike Pompeo just attacked WikiLeaks as a “a non-state hostile intelligence service often abetted by state actors like Russia.” The speech was explicitly a response to an op-ed Julian Assange had in the WaPo a few days ago.

Now, for those of you who read the editorial page of the Washington Post—and I have a feeling that many of you in this room do—yesterday you would have seen a piece of sophistry penned by Mr. Assange. You would have read a convoluted mass of words wherein Assange compared himself to Thomas Jefferson, Dwight Eisenhower, and the Pulitzer Prize-winning work of legitimate news organizations such as the New York Times and the Washington Post. One can only imagine the absurd comparisons that the original draft contained.

But the speech deserves closer analysis for several reasons.

CIA Directors hoping to build trust should fact and hypocrisy check better

First, it had the predictable CIA Director errors. As an example, it pretends to be rebutting “false narratives” purportedly spread by WikiLeaks, but uses as an example “the fanciful nation that they spy on their fellow citizens via microwave ovens,” a suggestion first spread by KellyAnne Conway, not WikiLeaks (though WikiLeaks responded by pointing to ways to spy with microwaves, though not ovens). It suggests Assange “directed Chelsea Manning in her theft of specific secret information;” had Assange’s direction been that clear cut, he would have been indicted. Perhaps most hilariously, a guy who — nine months ago — was applauding a WikiLeaks release today had this to say:

First, it is high time we called out those who grant a platform to these leakers and so-called transparency activists. We know the danger that Assange and his not-so-merry band of brothers pose to democracies around the world. Ignorance or misplaced idealism is no longer an acceptable excuse for lionizing these demons.

Yes. By all means, we should call out those who grant a platform to WikiLeaks. Like Mike Pompeo.

The never-ending defense of all spying overseas

The speech is also worth reviewing because of something that has become tiresome in recent years.

To rebut that false narrative Pompeo rebuts a claim that’s beside the point to WikiLeaks’ presentation of the CIA Vault 7 files (though it is one WikiLeaks has suggested on Twitter): that CIA spies on Americans.

[W]e are an intelligence organization that engages in foreign espionage. We steal secrets from foreign adversaries, hostile entities, and terrorist organizations. We analyze this intelligence so that our government can better understand the adversaries we face in a challenging and dangerous world.

[snip]

So I’d now like to make clear what CIA doesn’t do. We are a foreign intelligence agency. We focus on collecting information about foreign governments, foreign terrorist organizations, and the like—not Americans. A number of specific rules keep us centered on that mission and protect the privacy of our fellow Americans. To take just one important example, CIA is legally prohibited from spying on people through electronic surveillance in the United States. We’re not tapping anyone’s phone in Wichita.

Assange has focused primarily not on domestic spying, but on how incompetent CIA was for losing its hacking tools and for the proliferation risk it poses. Here’s what Assange said in his op-ed.

Our most recent disclosures describe the CIA’s multibillion-dollar cyberwarfare program, in which the agency created dangerous cyberweapons, targeted private companies’ consumer products and then lost control of its cyber-arsenal. Our source(s) said they hoped to initiate a principled public debate about the “security, creation, use, proliferation and democratic control of cyberweapons.”

Pompeo admits aggressive use of tools, and promises better security

That’s not a point that Pompeo really debates, though he does say,

CIA is aggressive in our pursuit of the information we need to help safeguard our country. We utilize the whole toolkit at our disposal, fully employing the authorities and capabilities that Congress,

As for losing the cyber toolkit (Pompeo does not, of course, confirm that that is what WikiLeaks has been releasing), Pompeo does promise these changes to improve CIA’s own security.

Second, there are steps that we have to take at home—in fact, this is a process we’ve already started. We’ve got to strengthen our own systems; we’ve got to improve internal mechanisms that help us in our counterintelligence mission. All of us in the Intelligence Community had a wake-up call after Snowden’s treachery. Unfortunately, the threat has not abated.

I can’t go into great detail, but the steps we take can’t be static. Our approach to security has to be constantly evolving. We need to be as clever and innovative as the enemies we face. They won’t relent, and neither will we.

We can never truly eliminate the threat but we can mitigate and manage it. This relies on agility and on dynamic “defense in depth.” It depends on a fundamental change in how we address digital problems, understanding that best practices have to evolve in real time. It is a long-term project but the strides we have taken—particularly the rapid and tireless response of our Directorate of Digital Innovation—give us grounds for optimism.

If these changes go beyond finally ensuring all devices require multi-factor authentication (something a Mike Pompeo overseen CIA did not have this time last year), then it will be a good thing.

The Philip Agee comparison

But I’m perhaps most interested in the implicit comparison Pompeo makes to start his speech. He suggests a comparison between Philip Agee (and the murder of Chief of Station Richard Welch after being outed by Agee) and WikiLeaks (or perhaps Assange personally).

That man was Philip Agee, one of the founding members of the magazine Counterspy, which in its first issue in 1973 called for the exposure of CIA undercover operatives overseas. In its September 1974 issue, Counterspy publicly identified Richard Welch as the CIA Chief of Station in Athens. Later, Richard’s home address and phone number were outed in the press in Greece.

In December 1975, Richard and his wife were returning home from a Christmas party in Athens. When he got out of his car to open the gate in front of his house, Richard Welch was assassinated by a Greek terrorist cell. At the time of his death, Richard was the highest-ranking CIA officer killed in the line of duty.

That’s a pretty remarkable way to introduce this speech. Perhaps to defend it, in the section of the speech dedicated to painting WikiLeaks as a hostile actor, Pompeo notes AQAP thanked WikiLeaks for tipping it off to a way to fight the US it hadn’t thought of.

Following a recent WikiLeaks disclosure, an al Qa’ida in the Arabian Peninsula member posted a comment online thanking WikiLeaks for providing a means to fight America in a way that AQAP had not previously envisioned.

That’s still a long way from posting CIA officers’ identities.

Security firms begin to expose CIA’s roles

All that said, I can’t help but wonder whether this spat between former WikiLeaks booster Mike Pompeo and WikiLeaks stems from a development that I’ve been anticipating: when security firms start treating US intelligence hackers like they do Russian or Chinese ones.

In the wake of WikiLeaks’ Vault 7 documents, both Symantec and Kaspersky wrote reports on Vault 7 hacks they had seen working with clients. Symantec provided a very convincing table correlating the compilation time of what they’ve seen with the evidence WikiLeaks presented.

Symantec also described the victims generally (including describing what sounds like CIA detasking as soon as they realized they had accidentally attacked a US target).

Longhorn has infiltrated governments and internationally operating organizations, in addition to targets in the financial, telecoms, energy, aerospace, information technology, education, and natural resources sectors. All of the organizations targeted would be of interest to a nation-state attacker.

Longhorn has infected 40 targets in at least 16 countries across the Middle East, Europe, Asia, and Africa. On one occasion a computer in the United States was compromised but, following infection, an uninstaller was launched within hours, which may indicate this victim was infected unintentionally.

Kaspersky offered no such public detail.

Nevertheless, these reports are just one of several developments of late (which I hope to return to) that exhibit the US’ hackers being treated like Russian or Chinese hackers are — as general adversaries outside of their country. If, as seems likely given Symantec’s description of European victims, some of the victims are nominal US allies, that’ll grow worse.

If I’m right, it’s a significant development. It may not equate to a CIA officer being outed. But it may case far more problems.

Update: As a number of people have made clear, Agee was not responsible for Welch’s death. So I’ve deleted those words.

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A Different Kind Of Modeling Tool

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In this post I pointed out that basic economics as taught in Econ 101 relies on math and physics from the 19th Century, and complained that economists are not taking advantage of advances in both math and physics. Several commenters pointed out that there are economists working with current math tools in various ways, and of course that’s true; it just is’t taught in introductory classes. One of the new approaches is Agent-Based Modeling, which has the potential to offer new theories of the economy that focus on observed behavior rather than ideology colored with moral judgments and guesses. Here’s an introduction.

Computers introduced new areas of mathematics by making it possible to do things that take too long if done by hand. This site introduces one of these, a cellular automaton called The Game of Life. There is a simulation at the link, which is fun, and shows how powerful the idea can be. The Game of Life operates on a two-dimensional grid like a sheet of graph paper. The squares, called cells, are either empty or occupied. There is a set of rules. At each iteration, the rules are applied to every cell, and the results are entered into the grid all at once. Each cell has 8 neighbors. An occupied cell is deemed to be live, and an empty cell is dead. Here are the rules, which can be found at the link with graphics:

1) Any live cell with fewer than two live neighbors dies, as if caused by under-population.
2) Any live cell with more than three live neighbors dies, as if by overcrowding.
3) Any live cell with two or three live neighbors lives on to the next generation.
4) Any dead cell with exactly three live neighbors becomes a live cell.

Start at time 0. The machine calculates the status of each cell for the first iteration. All results are entered at once. That’s called a tick, as in a clock tick. Then the process is repeated. The iterations continue until you lose interest, or because the simulation has an artificial cut-off. Even with these simple rules, you get surprisingly complicated outcomes. Try a few experiments with the simulator (click the clear button) at the link and you’ll see.

The Game of Life is two-dimensional, but there is no reason there can’t be any number of dimensions, including one. The Game of Life operates on a limited grid of squares, but that doesn’t have to be so either. It’s possible to imagine that the Game of Life operates on the outside of an open-ended cylinder, or some other surface. Most important, the rules of the Game of Life are simple. Each rule relates solely to status of the 8 neighbors of the cell to be calculated. Again, there is no limit to the rule sets that could be used, to the number of dimensions, to the shapes of the cells, or to the cells which are considered in calculating the status of each cell. And that makes this idea useful for other purposes.

Take the simple-minded version of economics described by Katrine Marçal in Who Cooked Adam Smith’s Dinner: unchanging individuals driven solely by self-interest. That can be modeled with simple rules. First, populate a huge grid with some black squares representing individuals. We endow each of them with different quantities of three objects and we assign each cell a valuation for each object, with some variety in both. We move the individuals one square after each turn. If two black squares come into contact, they engage in the exchange of objects if and only if the exchange benefits both by increasing the total value of objects each would have after the exchange. After such an exchange, the black cells are moved some distance apart. If there is no contact, they move one cell in the same direction as the previous iteration. As a side note, we use a different definition of contact than being in one of the eight neighboring cells: each cell moves one square at each tick and thus it’s possible for two live cells to occupy the same grid square.

Let’s crank this up mentally and watch it for a while. It seems intuitively obvious that eventually each cell will have some collection of objects that would maximize their total value for each cell’s valuation criteria. Also, it’s boring. So we run it again in our head, with different movements assigned to each unit. Again, we reach a stasis perhaps with different quantities of each object in each cell. Also, boring. We could make it last longer by adding more objects.

Alternatively, we could put them to work making more objects, assigning different productivity levels to the cells. After each iteration, each cell has a bit more of one or more of the objects depending on their productivity. We run the cellular automaton again in our heads, and we see that this time it isn’t obvious that it will reach equilibrium. That’s because we put no limits on the amount of each object that the cell values more highly. That’s not right: as a general rule humans do not have a use for an unlimited amount of anything, and desire less of some things than others, and for most things there is some level of decreasing marginal utility for stuff. So we learn that we need parameters for human desire. Also we learn that we didn’t account for consumption of the objects, or wearing out, or fair wear and tear, so we need a number that will reduce the amount of each object, perhaps every few ticks, or on some other schedule.

Suppose we combine two cells into one unit with a change in priorities to model the formation of a household. That changes things too. Not only does it affect production, it changes consumption and the nature of the equilibrium. If we let the two-cell critters add a couple of more we get even more complications.

Next we introduce the firm. One way would be to use a third dimension, so that our cells could be in one one level for their individual and household behaviors and in another for their participation in a firm, so that the production part moves to the firm. Firms would have their own production rules and their own distribution rules for gains. That introduces something more like money to mediate exchanges, and changes the rules of exchange. There would have to be model banks and model hedge funds and other aggregations of capital that would deal in meta-products like cash and stocks and bonds.

We could use other levels in the third dimension, or maybe a fourth dimension to represent participation in social groups such as governments, universities, political interest groups, Churches, bowling leagues and so on. These levels would add something more to the accumulations of the individual cells, measured in units of satisfaction, or pleasure, or other forces that motivate people. This could include negative forces like racism, hostility, and agression.

So far, the game is determinate, and does not model reality, which is contingent. To fix that, we allow the various levels to change the valuation of the objects of accumulation. To speed up the calculation, the code would use look-up tables for all the variables to determine the changes between ticks. So the various levels or dimensions could change the look-up tables in sensible ways, and occasionally in ways that aren’t so sensible. For example, the individual would change the value of some object not needed in a paired state, or needed because of “children”. The government state could change the value of the “tax”. The firm could change the valuation of the product. Or it could add a new product and set up a value. And so on. The Fed model can change interest rates. The government level could change its acquisition patterns.

This sketch suggests that we could create a very complicated model, with thousands of rules and calculations. But with efficient use of look-up tables, simple calculations and highly parallel operations, it’s just the kind of problem computers are good at.

To make this idea usable, there are open platforms for creation of models like this. Here’s one called Repast, and another called Swarm. And here’s a link to an exercise in modeling that raises interesting issues using Thomas Piketty’s r > g idea. Here’s a difficult article entitled Cellular Automata based Artificial Financial Market by Jingyuan Ding of Shanghai University China. The writer created a cellular automaton to model the capital markets.

Any tool can and will be misused. For example, economists could use existing theories of human behavior in constructing models. That would be a terrible mistake. The closer we get to empirically derived rules, the closer we get to a set of ideas about the economy that do not depend on assumptions like the efficient market hypothesis or that humans are solely rational utility-maximizers. A good test is whether the model produces booms and busts, common features in reality.

One good thing is that platforms like Repast and Swarm are used by modelers from other scientific fields like biology and political science. That might enable economists to learn from people outside their specialty. We can always hope.

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The ISP/ECTR Workaround: The New Broadband Rules May Be Not So Much What They’ll Sell, But What They Give Away

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Senator Ed Markey and seven of his colleagues (Franken, Blumenthal, Warren, Sanders, Wyden, Leahy, and Van Hollen) just sent letters to major ISP providers (AT&T, Comcast, Charter, Verizon, Sprint, T-Mobile, and CenturyLink, the latter of which I find most interesting for the purposes of this post) regarding what practices they’ll follow in the wake of Congressional Review Act overturning President Obama’s broadband privacy rules.

The letters focus on a lot of consumer right issues — such as whether customers will learn of any changes in a provider’s privacy policy, the ability to opt in or out, forced arbitration, data breach provisions, and de-identification. That’s all great stuff and I look forward to the answers Markey gets; the information will be as useful as the information he has obtained from wireless providers about information they keep.

But towards the end, the letters include what I’ll call “Wyden questions,” not because I know they came from him, but because they address issues about which he has long been obsessed. There’s one on location, reflecting a concern that providers might presume consent from customers, resulting in the sharing of their location data with third parties.

Under Section 222 of the Communications Act, carriers may not disclose subscriber location information without the “express prior authorization of the customer”.  Over each of the last three years, how many times did your company disclose to third parties individually identifiable customer location data or other Customer Proprietary Network Information with a customer’s express prior authorization?  Does your company obtain the consent from the subscriber directly?  If not, and the third party obtains the consent (or claims they do), do you request or retain a copy of documentation showing that the customer provided such consent?

More interesting still is the question asking whether providers would retain and provide — in response to a National Security Letter — “netflow” records.

Many ISPs retain so called “netflow” records, related to their customers’ internet usage. Do you retain netflow records for your customers’ web browsing activity? If so, for how long do you retain them? Will you disclose netflow records pursuant to a National Security Letter, or only court orders?

Remember, on several occasions last year, Republicans tried to change the rules of National Security Letters so as to permit the FBI to demand providers to turn over “electronic communications transactional records” (ECTRs) with just a National Security Letter. The FBI always asks for ECTRs on NSLs, but a number of providers started refusing to turn them over in the wake of a 2008 OLC decision stating they weren’t included under the law. And Republicans have been trying to force through language that would permit FBI to always obtain such things.

While the discussion about ECTRs started by focusing on email and then moved to URLs, the possibility that FBI had been and wanted to obtain netflow data had been made apparent by — among other things — Nick Merrill’s efforts to declassify the NSL he received in 2004. As he described in a 2015 declaration,

Electronic communication service providers can also record internet “NetFlow” data. This data consists of a set of packets that travel between two points. Routers can be set to automatically record a list of all the NetFlows that they see, or all the NetFlows to or from a specific IP ,address. This NetFlow data can essentially provide a complete history of each electronic communications service used by a particular Internet user.

So in effect, this question (whether or not it comes from Wyden) would reflect a concern that that would become available if these providers were willing to respond to FBI’s requests for ECTRs, and may remain widely available because of the change in the broadband rules. It also reminds me of Wyden’s neverending quest to liberate an OLC memo John Yoo wrote as part of Stellar Wind, but which purportedly pertains to cybersecurity.

In wake of the broadband rule change, AT&T, Verizon, and Comcast (but not, for example, CenturyLink) have assured customers they won’t change their practices and won’t be selling individual customers’ data.

But I’m not seeing any of the providers making assurances about what they’ll be giving away to the government.

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The October Non-Surprise

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Both the Wikileaks Podesta release and the Access Hollywood tape drowned out the Intelligence Community report on Russia

Earlier this week, in an interview with Politico (the story and the interview transcript seem to be memory holed for now), Obama’s Homeland Security Czar Lisa Monaco insisted that the Obama response to the Russian hack of the DNC was actually quite forceful, but that it got lost in the release of the Access Hollywood video showing Trump threatening to grab women by the pussy.

But strong supporters of Clinton’s campaign argued—some at the time, many more in the wake of the former secretary of state’s shocking November election defeat—that the Obama team should have done more to publicize the hacking for what it was: a heavy-handed Kremlin intervention on behalf of one side in America’s presidential election. Monaco pushed back against that, recalling that the heads of U.S. intelligence agencies issued a joint statement publicly blaming the Russians for the pre-election hack on Oct. 7. “That was an unprecedented statement,” she says, “a fact that sometimes gets lost in this discussion” given that it came on the same day as the revelation of the “Access Hollywood” tape showing Trump joking about sexually assaulting a woman.

I point to Monaco’s argument because it’s a mirror image to claims Hillary supporters make about the same week. They argue that the release of the John Podesta emails drowned out the Access Hollywood video. Here’s John Podesta in a December appearance on Meet the Press.

So October 7th, Wiki– October 7th, let’s go through the chronology. On October 7th, the Access Hollywood tape comes out. One hour later, WikiLeaks starts dropping my emails into the public. One could say that there might, those things might not have been a coincidence.

Monaco is in the right here. The Google Trends graph above maps “Wikileaks emails” in blue, “Access Hollywood” in red, and “Russian hack” in yellow (“Grab them by the pussy” shows a more extreme but shorter spike, “John Podesta” doesn’t show as high). In fact, the Grab them by the pussy video drowned out the first releases of the Podesta emails — which suggests it would have been stupid strategy to intentionally release them at the same time, as doing so would mean fewer people would read the excerpts from Hillary’s speeches that got released on the first day. By the following Tuesday, Wikileaks had taken over. By comparison, the Russian hack was a mere blip compared to those two stories, though.

The Roger Stone and Wikileaks narrative misses a few data points

I return to this chronology for another reason. The events of the week of October 3 have been in the news for another reason: their role in the claim that Roger Stone was coordinating with Wikileaks during that week (which is presumably a big part of the reason Podesta insinuated there was coordination on that timing).

CNN has a timeline of many of Stone’s Wikileaks related comments, which actually shows that in August, at least, Stone believed Wikileaks would release Clinton Foundation emails (a claim that derived from other known sources, including Bill Binney’s claim that the NSA should have all the Clinton Foundation emails).

It notes, as many timelines of Stone’s claims do, that on Saturday October 1 (or early morning on October 2 in GMT; the Twitter times in this post have been calculated off the unix time in the source code), Stone said that on Wednesday (October 5), Hillary Clinton is done.

Fewer of these timelines note that Wikileaks didn’t release anything that Wednesday. It did, however, call out Guccifer 2.0’s purported release of Clinton Foundation documents (though the documents were real, they were almost certainly mislabeled Democratic Party documents) on October 5. The fact that Guccifer 2.0 chose to mislabel those documents is worth further consideration, especially given public focus on the Foundation documents rather than other Democratic ones. I’ll come back to that.

Throughout the week — both before and after the Guccifer 2.0 release — Stone kept tweeting that he trusted the Wikileaks dump was still coming.

Monday, October 3:

Wednesday, October 5 (though this would have been middle of the night ET):

Thursday, October 6 (again, this would have been nighttime ET, after it was clear Wikileaks had not released on Wednesday):

On October 7, at 4:03PM, David Fahrenthold tweeted out the Access Hollywood video.

On October 7, at 4:32 PM, Wikileaks started releasing the Podesta emails.

Stone didn’t really comment on the substance of the Wikileaks release. In fact, even before the Access Hollywood release, he was accusing Bill Clinton of rape, and he continued in that vein after the release of the video, virtually ignoring the Podesta emails.

For its part, Wikileaks was denying it had any knowing contact with Stone within a week, as it had before. CNN finally reported those denials in the wake of reporting on Stone’s August 2016 contacts with Guccifer 2.0. It’s worth noting that in precisely that time period, Wikileaks managed to discredit a still unexplained US-based hoax launched against Julian Assange, accusing him of soliciting a minor via the online dating site Todd and Claire. In addition, this was the period when the odd Alfa Bank story was being pitched to journalists.

Thus far, anyway, the full chronology suggests that either Stone’s information was only vaguely accurate or Wikileaks delayed its release for a few days. That does weird things to Podesta’s narrative, since either Wikileaks delayed their release so the actually newsworthy part of it — Hillary’s speech excerpts — would be overshadowed (as it was) by the Access Hollywood video, or the Access Hollywood video was timed to coincide with the Wikileaks release — which after all had been announced publicly in a way the Access Hollywood video had not been.

Democrats had more warning of impending emails than Podesta makes out

There’s another part of Podesta’s narrative that deserves review. He liked to suggest he had no idea when his emails were being released — in part, to criticize the FBI for not warning him.

It’s not just that Stone appears to have had a vaguer sense of when the next dump (which, as noted, he appeared to believe would be Clinton Foundation emails) was coming than often made out. Democrats also had more warning than often claimed.

In his December Meet the Press appearance, Podesta made a big deal out of the fact that the FBI had not informed him before the October 7 release.

CHUCK TODD:

This is your personal account that was hacked. I’ve got to think you’re getting updates on the investigation that others would not. What can you share?

JOHN PODESTA:

I will share this with you, Chuck. The first time I was contacted by the F.B.I. was two days after WikiLeaks started dropping my emails.

CHUCK TODD:

Let me pause here.

JOHN PODESTA:

The first, the first–

CHUCK TODD:

Two days after?

But as he went on to reveal, he had seen a document released earlier that he had reason to believe may have been from him (I think, but will have to return to this, that it may have been one of the original Guccifer 2.0 documents).

CHUCK TODD:

But when were you aware that you had been hacked? Before October 7th?

JOHN PODESTA:

I think it was confirmed on October 7th in some of the D.N.C. dumps that had occurred earlier.

CHUCK TODD:

Earlier, yeah.

JOHN PODESTA:

And other campaign officials also had their emails divulge earlier than October 7th. But in one of those D.N.C. dumps, there was a document that appeared to me was– that appeared came– might have come from my account. So I wasn’t sure, I didn’t know, I didn’t know what they had, what they didn’t have. It wasn’t until October 7th when Assange both really in his first statements said things that were incorrect, but started dumping them out and said they were going to all dump out. That’s when I knew that they had the contents of my email account.

Even putting aside Podesta’s suspicion one of the release documents had come from him and Stone’s warnings, Podesta would have had one more warning there would be a further release: from the Christopher Steele reports being done as opposition research for the Hillary campaign.

On September 14, Steele reported that the Russians were considering releasing more emails after the September 18 Duma elections, though the Russians thought they might not have to release any more emails to make Hillary look “weak and stupid.”

Russians do have further “kompromat” on CLINTON (e-mails) and considering disseminating it after Duma (legislative elections) in late September. Presidential spokesman PESKOV continues to lead on this.

[snip]

Continuing on this theme, the senior PA official said the situation was that the Kremlin had further “kompromat” on candidate CLINTON and had been considering releasing this via “plausibly deniable” channels after the Duma (legislative elections) were out of the way in mid-September. There was however a growing train of thought and associated lobby, arguing that the Russians could still make candidate CLINTON look “weak and stupid” by provoking her into railing against PUTIN and Russia without the need to release more of her e-mails.

Curiously, as with all other Wikileaks releases, the publicly-released Steele reports never prospectively confirm a release. Steele’s sources seemed to have little prospective insight to offer about non-public events tied to the release of emails. But on October 12, a report (based on undated early October reporting, which raises questions why the reporting on this wasn’t as quick as on some other reports) notes that the Russians have dumped more anti-Clinton material, which would continue until election day.

Russians have injected further anti-CLINTON material into the “plausibly deniable” leaks pipeline which will continue to surface, but best material already in public domain.

[snip]

Speaking separately in confidence to a trusted compatriot in early October 2016, a senior Russian leadership figure and a Foreign Ministry official reported on recent developments concerning the Kremlin’s operation to support Republican candidate Donald TRUMP in the US presidential election. The senior leadership figure said that a degree of buyer’s remorse was setting in among Russian leaders concerning TRUMP, PUTIN and his colleagues were surprised and disappointed that leaks of Democratic candidate, Hillary CLINTON’s hacked e-mails had not had greater impact on the campaign.

Continuing on this theme, the senior leadership figure commented that a stream of further hacked CLINTON material already had been injected by the Kremlin into compliant western media outlets like Wikileaks, which remained at least “plausibly deniable”, so the stream of these would continue through October and up to the election. However s/he understood that the best material the Russians had already was out and there were no real game-changers to come.

Suffice it to say, even without an FBI warning, Podesta had good reason to expect the emails would occur, though he may have had only a vague idea of the timing.

The other missing detail

Which brings me to one final event from that week that rarely makes the timelines, particularly not the Democratic ones (though Glenn Greenwald pointed out some of it in this post).

From at least the time of the DNC email release in July, Democrats insinuated that Russia and/or Wikileaks had doctored the emails, without ever offering proof, besides the original obvious doctoring of metadata in the Guccifer 2.0 documents (though some DNC people have since credibly claimed that not all of their emails got published). Chief among those people was Malcolm Nance, who was writing a book on the hack. He started warning of spoofed emails in late July. He started pitching his book, which predicted the leaks would include tampering, at the end of September.

And then, just over an hour after the Podesta emails dropped (5:44PM) documents including excerpts from Hillary’s speeches, a pro-Clinton Twitter account responded to Michael Tracey’s observations about the excerpts with a badly faked transcript of a Hillary Goldman Sachs speech.

At 7:25PM, one of the key Russian story commenters linked to it, accusing “Trumpists” of “dirtying docs.” Then at 7:43PM, Nance tweeted, “Official Warning: #PodestaEmails are already proving to be riddled with obvious forgeries & #blackpropaganda not even professionally done.”

Click through to Greenwald’s post to see how it went viral after that (MSNBC’s Joy Reid, who had repeatedly had Nance on, was key to both of Nance’s claims of forgeries go viral), including how it got picked up in the Democrats’ own fake news sites.

Here’s the thing: in multiple places, the guy who later claimed credit, under the name “Marco Chacon,” for the hoax stated he had done the transcript in advance of the release of the emails.

The biggest breakout I had came when a Vice reporter, Michael Tracey, was holding forth on Twitter in the wake of the Podesta Email leaks. He was speaking about the Goldman Sachs transcripts—and I had one.

I had written up a fake Goldman Sachs transcript days before, wherein Hillary Clinton is preparing a run for president and is speaking to the board of directors in 2014 about the coming threat to Wall Street and Washington power. That threat? Bronies, adult male fans of the cartoon My Little Pony: Friendship Is Magic. She has to explain this “Bronie Threat” to them and, in the process, describes a group of internet denizens she calls a “bucket of losers.”

When I tweeted the link and an image of some of the text at Tracey, I did it because I find him to be something of a self-important git and wanted to poke fun at him. I didn’t know at the time that there were Goldman Sachs transcript fragments in the WikiLeaks release.

Note, too, that his claim that when he tweeted the hoax transcript to Tracey, he didn’t know there were Goldman transcripts in the Wikileaks release is laughable: That’s what Tracey’s tweet was about!

Just days later, Kurt Eichenwald would make another claim that Russia had doctored emails that went even more wildly viral (and became among the most remembered fake news stories of the election cycle). In Eichenwald’s discussions with the Sputnik writer in question, Bill Moran, he insisted that spooks had alerted him to the (mis)use of his story.

There is definitely evidence that Roger Stone had at least enough feedback with those leaking stolen emails to know to expect them the first week of October — though he clearly didn’t know precisely when or what to expect. Moreover, he clearly didn’t have an open channel with Assange to find out when the delayed release would be — it appears, instead, he got a warning, but no update.

But there are at least as many reasons to ask whether the Democrats (or perhaps even a government agency) had advance warning of what was coming, and had planned in response.

And all that played out at the time when, per Lisa Monaco, the Intelligence Community made what they viewed as an unprecedented announcement blaming Russia for the hack of the Democrats.

There are definitely reasons to scrutinize Stone’s foreknowledge in all this. But that is by no means the only feedback loop that appears to have been in operation by this point.

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Devin Nunes’ So-Called Bibi Netanyahu Precedent

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Throughout his ongoing information operation to claim the Obama White House spied on the Trump transition team, Devin Nunes has pointed to what he claimed was a precedent: when, in December 2015, members of Congress suddenly copped on that their conversations with Bibi Netanyahu would get picked up incidentally. In his March 22 press conference, he explained,

We went through this about a year and a half ago as it related to members of Congress, if you may remember there was a report I think it was in the Wall Street Journal and but then we had to have we had a whole series of hearings and then we had to have changes made to how Congress is informed if members of Congress are picked up in surveillance and this looks it’s like very similar to that.

Eli Lake dutifully repeated it in the second of his three-post series pitching Nunes’ information operation.

A precedent to what may have happened with the Trump transition involved the monitoring of Israel’s prime minister and other senior Israeli officials. The Wall Street Journal reported at the end of 2015 that members of Congress and American Jewish groups were caught up in this surveillance and that the reports were sent to the White House. This occurred during a bitter political fight over the Iran nuclear deal. In essence the Obama White House was learning about the strategy of its domestic political opposition through legal wiretaps of a foreign head of state and his aides.

But Lake didn’t apparently think through what the implications of Nunes’ analogy — or the differences between the two cases.

Here’s the WSJ report and CBS and WaPo versions that aren’t paywalled. All make it very clear that Devin Nunes took the lead in worrying about his conversations with Bibi Netanyahu being sucked up (I don’t remember Republicans being as sympathetic when Jane Harman got sucked up in a conversation with AIPAC). They also describe that Obama’s WH, faced with the potential that their surveillance would be seen as spying on another branch of Congress, had the NSA take charge of the unmasking.

The administration believed that Israel had leaked information gleaned from spying on the negotiations to sympathetic lawmakers and Jewish American groups seeking to undermine the talks.

According to the Journal, when the White House learned that the NSA eavesdropping had collected communications with U.S. lawmakers, it feared being accused of spying on Congress and left it to the NSA to determine what information to share with the administration. The Journal said the NSA did not pass along the names of lawmakers or any of their personal attacks on White House officials.

That’s not to say they’d take the same approach here — indeed, Lake now claims, at  least, that Susan Rice requested some Trump officials’ names to be unmasked, distinguishing it from the Bibi case in that White House did not leave it up to NSA to decide what to unmask (though the underlying reporting makes the silly claim that Rice, Loretta Lynch, and John Brennan were among a very limited number of people who could request a name be unmasked).

The larger point is, even assuming the collection of conversations between your political opponents and a foreign government designed to undermine your executive branch authority was scandalous, it’d still fall under the very legitimate concern of separation of powers.

Yes, Trump’s aides are from a different party. But they are nevertheless part of the executive branch. And the entire basis of counterintelligence spying — the entire point of FISA — is to ensure that executive branch officials are not targeted by foreign countries to be spies, which is part of the reason Mike Flynn attracted attention (which is not to justify the leaking of that intercept). Add in the legitimate necessity to implement executive branch policy and this is a very different case than the Bibi case, even if you want to defend (as I do, to a point) Republican members of Congress collaborating with foreign governments to undermine Article II authorities.

Nunes’ imagined solution — from his March 22 White House press conference — is ever nuttier.

Q: You’ve said legal and incidental. That doesn’t sound like a proactive effort to spy.

Nunes: I would refer you to, we had a similar issue with members of Congress that were being picked up in incidental collection a little over a year ago, we had to spend a full year working with the DNI on the proper notification for members of Congress to be notified which comes through the Gang of Eight. I would refer you to that because it looks very similar to that, would be the best way I can describe it.

The ODNI current informs the Gang of Eight when members of Congress get spied on (which means claims that a lot of GOP candidates got spied on is likely hot air, but which also means that if Nunes were collected as a member of the transition team, he’d have been the first to learn of it). Which is an important protection for separation of powers, but which also enables corrupt members of Congress to not just learn they’re being surveilled but, potentially, to alert the foreign targets what channels we’re using.

Maybe Trump wants that standard applied to the executive branch, but if he adopts it, we’re going to have a leaking free for all. Not to mention, it would make it absolutely impossible for the government to protect against espionage related to elections.

Or perhaps Nunes is just saying something more simple. Perhaps Nunes is saying the “dozens” of intercepts where Trump officials had been unmasked (to the extent that’s true) disclosed Trump’s transition-period attempts to drum up a war with Iran at the behest of Israel. Perhaps the real stink here is that, in the very same days Mike Flynn was telling Russia sanctions would be loosened, Trump was publicly undermining US efforts to take a stand against Israeli illegal settlements.

Perhaps, ultimately, this is still about a belief that the Israelis should never be wiretapped.

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The Outdated Math and Physics Behind Economics

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In Who Cooked Adam Smith’s Dinner, Katrine Marçal traces the roots of mainstream economics and particularly neoliberalism. One of the strands she discusses is the the connection between economics and Newtonian physics. Newton believed that the universe was made up of fundamental particles. To understand complex physical things, you have to break them down into smaller and smaller pieces until you hit the unit of everything, the Lego blocks from which the universe is constructed: the atom and the photon (Newton thought the photon was a particle). From there you can work towards an understanding of the cosmos.

Particles are governed by forces. For Newton, the important force was gravity. The ultimate particle and the ultimate force can be used to explain a lot of the physical phenomena which we can observe with simple tools. Newton’s theory is deterministic: the future is predictable because particles only move in accordance with rigid laws.

In economics, the atom is the individual. The force that sets those atoms into motion is self-interest.

I’ve made passing reference to this before, but Marçal’s book brings it to the forefront. Most of the time when we hear about the history of economics after Smith, we hear about the math stuff, frequently starting with the idea of marginal utility generated by William Stanley Jevons around 1870. Jevons was a mathematician, who set out to create equations for the calculus of pleasure and pain as described by Jeremy Bentham. The subsequent history of economics can be read as a long math exercise using mostly calculus, and linear algebra (matrices) for modeling.

The thing is, math was just being formalized in the 1800s. Riemann completed the formalization of the calculus in 1854 (here’s an interesting history.) Other areas of math were being developed and formalized at that time, and development continues today, with, for example, fractal math. So maybe a good question is why economists stick with 19th Century math. Can’t they find something new that might work better than the obviously lousy models they use today that were incapable of predicting the Great Crash? I mean, how could anyone think it makes sense to model human beings as a large number of identical particles that only interact in monetary transactions and are otherwise unaffected by each other; and all of which are subject only the force of self-interest?

But just as math has advanced, so has physics. One of the changes is that physicists aren’t searching for ultimate particles any more; in fact as we currently understand things, we aren’t even sure the things studied are in some particular place. Physicists now study the relationships between various kinds of forces. They describe elementary particles by the forces through which they interact which in turn are defined in math terms, and terms that are a lot further from calculus than calculus is from addition. The relationships are mediated through the Schrödinger equation; It describes our observation small numbers of what we think today are elementary particles, but it is too hard to solve it for any large group of particles.

But in economics, nothing is complicated. It’s just individuals motivated by self-interest. And that’s a remarkably stupid thing. Has nothing changed in the last 150 years? Is linear algebra, which we learned in my junior year in high school, all these guys have learned from math and physics?

To put this another way, if economists were just cranking up their discipline today, with no theory of our current form of economy, they certainly would not use 19th C. math and physics as models. Would they use 18th C. markets in England and Scotland as their model? Of course not.

Fortunately I’m here to help. I’m happy to let economists continue the work of defining and collecting economic statistics, but it’s time to look for a more plausible theory. And as a starting place, I’ll put up a couple of posts with ideas for a new theory for the 21st C. No need to thank me. Which they won’t.

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BBC’s FISA Reporter Argues CIA Should Lead Trump Investigation

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Paul Wood is the BBC reporter who, in a January story focusing largely on MI6 officer Christopher Steele’s dossier, repeated the Louise Mensch report that the government had obtained a FISA order targeting two Russian banks.

On 15 October, the US secret intelligence court issued a warrant to investigate two Russian banks. This news was given to me by several sources and corroborated by someone I will identify only as a senior member of the US intelligence community. He would never volunteer anything – giving up classified information would be illegal – but he would confirm or deny what I had heard from other sources.

Last night he posted another story, confirming that one of the figures described in Steele’s dossier as having been withdrawn from DC because of his close ties to the election operation, Mikhail Kalugin, was indeed a Russian spy operating under diplomatic cover.

[S]ources I know and trust have told me the US government identified Kalugin as a spy while he was still at the embassy.

[snip]

A retired member of a US intelligence agency told me that Kalugin was being kept under surveillance before he left the US.

But I’m more interested in the vague details Wood offers about Steele’s past cooperation — and how he pitches a claim that the FBI is screwing up the investigation.

Remember: the public story is that only the FBI had any contact with Steele. But the first time this article describes him sharing information he collected for other sources with US intelligence agencies, it doesn’t specify that.

I understand – from former officials – that from 2013-16, Steele gave the US government extensive information on Russia and Ukraine.

This was work done for private clients, but which Steele wanted the US authorities to see.

One former senior official who saw these reports told me: “It was found to be of value by the people whose job it was to look at Russia every day.

Indeed, the article distinguishes between what those agencies believed about Steele from what the FBI did.

In light of his earlier work, the US intelligence community saw him as “credible” (their highest praise).

The FBI thought the same; they had worked with Steele going back to his days in MI6.

The article goes on to complain that Steele never briefed the CIA on the dossier, which it explains by saying his Russian related contacts had moved on.

But the CIA never interviewed him, and never sought to.

This comes from several people who are in a position to know.

[snip]

I understand that Steele himself did not ask to brief the CIA because he had a long-standing relationship with the FBI.

The Russia people at the CIA had moved on and he felt he did not have the personal contacts he would need.

As a reminder, the Intelligence Community offered completely ridiculous explanations for when it first obtained the dossier, which were implausible, even ignoring the way they pretended FBI wasn’t part of the IC.

In any case, having laid out these distinctions, the article then voices the complaints of those who believe the FBI is screwing the investigation up, and that only CIA has the contacts to conduct it.

This comes from several people who are in a position to know.

They are alarmed at how the investigation is going, and worry it is being fumbled.

One said: “The FBI doesn’t know about Russia, the CIA knows about Russia.

“Any sources Steele has in Russia, the FBI doesn’t know how to evaluate.

“The Agency does… Who’s running this thing from Moscow? The FBI just aren’t capable on that side, of even understanding what Chris has.”

The article cites one reason this complaint is bogus — the CIA, along with other agencies, are part of the task force investigating this case. It doesn’t explain why the theory voiced by its sources — that the Russians would need to steal voter roll data from states (or even cooperate with Trump) to micro-target messages. Voter rolls are readily available. And while cooperating with Trump’s campaign would make micro-targeting more effective, it would not be necessary for a knowledgable person.

In any case, these complaints sound like the excuses given for why Steele did not, ultimately, take payment from FBI (which I discussed here), with one difference. It wasn’t just that Steele thought the FBI was paying too much attention on Hillary’s email campaign, but he thought publicizing his dossier would make the difference in the election.

“He really thought that what he had would sway the election,” said one.

That claim, with questions introduced by this article about which agencies he has worked with, is rather interesting.

One final point. After the article got posted, the Beeb took out a critical line (highlighted below) claiming that Steele didn’t share his dossier with reporters himself, but instead did so through his employer.

That doesn’t make sense for a lot of reasons — and is belied by David Corn’s account of what happened. But I find it particularly interesting given the fact that — after Chuck Grassley first asked the FBI to provide information on the dossier — Grassley has since asked the consulting firm questions that would provide a way to double check the FBI’s claims. Fusion’s answers, which are due by April 7, might present problems for this claim, which has since disappeared. Poof!

Among the things Richard Burr suggested yesterday is that the committee may not succeed in getting Steele to testify (suggesting that being outside the country put him beyond subpoena). Given the airing of complaints from Steele and his friends here, I really look forward to seeing whether he cooperates with SSCI.

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Face The Nation

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The failure of the American Health Care Act provides an insight that might be useful in combating neoliberalism. Paul Ryan centered his defense of ACHA around the notion of individual freedom. But there is a better view of freedom that the Democrats could offer: freedom from fear.

Ryan explained his view of freedom, the neoliberal view that freedom exists only in monetary transactions, in an appearance on Face The Nation March 12, 2017:

DICKERSON: How many people are going to lose coverage under this new —

RYAN: I can’t answer that question. It’s up to people. Here — here’s the premise of your question. Are you going to stop mandating people buy health insurance? People are going to do what they want to do with their lives because we believe in individual freedom in this country. So the question is, are we providing a system where people have access to health insurance if they choose to do so. …

The most important talking point in this whole interview is freedom; Here’s another example:

…[W}e’re not going to make an American do what they don’t want to do. You get it if you want it. That’s freedom.

What if you want it but do not have the money to get it? You are free not to get it. One of the problems with the ACA is that even with subsidies, people can’t afford a decent policy. A lot of people have a policy that doesn’t cover them sufficiently to prevent bankruptcy, or they have a policy but can’t afford to use it because of high deductibles and co-pays.

Ryan’s solution was to get rid of the Essential Health Benefits mandated by the ACA. These set the minimum coverage for any policy offered on the exchange. They include lab tests, drugs, maternity care, treatment for substance abuse and mental illness, and others. If insurance companies can issue policies that don’t cover these mandated benefits, they can offer cheaper policies. That doesn’t help anyone. It increases the number of people with policies that don’t cover treatment they suddenly need, and raises prices for others to buy fuller coverage.

Ryan and the Republicans think we only care about a few bucks we don’t have to pay an insurance company. They only value the freedom to buy and sell in unrestrained markets, as if anyone actually wanted to spend any part of their precious lives studying insurance contracts.

So there we have Ryan’s definition of freedom. You have the freedom to give money to an insurance company to buy any policy you can afford, and you can shop around for a policy that may or may not provide the coverage you eventually need, or you can take the risk of bankruptcy or denial of health care.

That’s a peculiar kind of freedom.

The Democrats have the possibility of offering a different kind of freedom: the freedom from fear that you and your family and your friends and neighbors and fellow citizens won’t be able to get health care when they need it. This kind of Freedom is the foundation of Franklin Roosevelt’s Second Bill of Rights, so it’s well within the historic tradition of the Democrats, at least before their neoliberal turn. The outpouring of public hostility to the ACHA proves that this definition of freedom is much more popular than Ryan’s.

Another way to phrase this idea is that what people want is the freedoom to pursue their own projects, projects that they choose for themselves and that give them a sense of satisfaction. John Maynard Keynes thought that as the age of work came to an end, people would pursue artistic, intellectual and cultural pursuits. Maybe. Maybe it’s going fishing, learning how to weld, or following the Cubs. For maximum freedom, there are areas where people would rather have the government protect them from the “market”, rather than wasting time coping with yet another market, or living in fear of the consequences of not handling the market. I think his is an idea with a lot of general appeal.

If we raise taxes fairly, or reorder our budget priorities favoring defense contractors, we can all get good health care at a price we can all pay. That’s the kind of freedom I want: freedom from fear and freedom from the endless consumerism we have to endure because of the other version of freedom. Not to mention freedom from profit-maximizing insurance companies.

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Ron Wyden’s History of Bogus Excuses for Not Counting 702 US Person Collection

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The other day, Ron Wyden gave a long speech on FISA Section 702, purportedly explaining why he was voting against Dan Coats to be Director of National Intelligence. Wyden voted against Coats because his former colleague would not commit to providing a number of the number of Americans swept up under Section 702. Given that it’s always a good idea to read Wyden closely, I wanted to summarize what he said. I’ll look at his complaints in a separate post, but for now I wanted to focus on Wyden’s description of the bogus explanations James Clapper and others gave Wyden in his past efforts to get the number of Americans sucked up in 702. I summarized the known exchanges that occurred on this issue before Clapper’s famous “not wittingly” lie here.

In 2011, both Wyden and John Bates were asking for numbers at the same time — NSA refused both

The first request for a count is temporally significant(update: I think I just missed this one in the past). In April 2011, Wyden and Mark Udall asked for the number.

In April of 2011, our former colleague, Senator Mark Udall, and I then asked the Director of National Intelligence, James Clapper, for an estimate.

According to Clapper’s response, they sent a written letter with the request on July 14, 2011. The timing of this request is critically important because it means Wyden and Udall made the request during the period when NSA and FISA Judge John Bates were discussing the upstream violations (see this post for a timeline). As part of that long discussion Bates had NSA do analysis of how often it collected US person communications that were completely unrelated to a targeted one (MCTs). Once Bates understood the scope of the problem, he asked how many US person communications it collected that were a positive hit on the target that were the only communication collected (SCTs).

But the timing demands even closer scrutiny. On July 8, John Bates went to DOJ to express “serious concerns” — basically, warning them he might not be able to reauthorize upstream surveillance. On July 14 — the same day Wyden and Udall asked Clapper for this information — DOJ asked Bates for another extension to respond to his questions, promising more information. Clapper blew off Wyden and Udall’s request in what must be record time — on July 26. On August 16, DOJ provided their promised additional information to Bates. That ended up being a count of how many Americans were affected in MCTs.

That means Clapper claimed he couldn’t offer a number even as NSA was doing precisely the kind of count that Wyden and Udall wanted, albeit for just one kind of 702 collection. And, as Wyden suggested in his speech, Clapper’s answer was non-responsive, answering how many US persons had their communications reviewed, rather than how many had their communications collected.

In July of that year, the director wrote back and said, and I quote, it was not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under the authority of the Foreign Intelligence Surveillance Act. He suggested reviewing the classified number of disseminated intelligence reports containing a reference to a U.S. Person, but that is very different than the number of Americans whose communications have been collected in the first place. And that’s what this is all about.

Then, after the government presented the information on how many US persons were collected via MCTs to Bates in August, Bates asked them to go back and count SCTs.

NSA refused.

Both FISC and members of SSCI were asking for this information in the same time period, and NSA refused to provide the count.

Since NSA wouldn’t help him, Bates invented an estimate himself, calculating that some 46,000 entirely domestic communications were collected under upstream collection each year.

NSA’s manual review focused on examining the MCTs acquired through NSA’s upstream collection in order to assess whether any contained wholly domestic communications. Sept. 7, 2011 Hearing Tr. at 13-14. As a result, once NSA determined that a transaction contained a single discrete communication, no further analysis of that transaction was done. See Aug. 16 Submission at 3. After the Court expressed concern that this category of transactions might also contain wholly domestic communications, NSA conducted a further review. See Sept. 9 Submission at 4. NSA ultimately did not provide the Court with an estimate of the number of wholly domestic “about” SCTs that may be acquired through its upstream collection. Instead, NSA has concluded that “the probability of encountering wholly domestic communications in transactions that feature only a single, discrete communication should be smaller — and certainly no greater — than potentially encountering wholly domestic communications within MCTs.” Sept. 13 Submission at 2.

The Court understands this to mean that the percentage of wholly domestic communications within the universe of SCTs acquired through NSA’s upstream collection should not exceed the percentage of MCTs within its statistical sample. Since NSA found 10 MCTs with wholly domestic communications within the 5,081 MCTs reviewed, the relevant percentage is .197% (10/5,081). Aug. 16 Submission at 5.

NSA’s manual review found that approximately 90% of the 50,440 transactions in the same were SCTs. Id. at 3. Ninety percent of the approximately 13, 25 million total Internet transactions acquired by NSA through its upstream collection during the six-month period, works out to be approximately 11,925,000 transactions. Those 11,925,000 transactions would constitute the universe of SCTs acquired during the six-month period, and .197% of that universe would be approximately 23,000 wholly domestic SCTs. Thus, NSA may be acquiring as many as 46,000 wholly domestic “about” SCTs each year, in addition to the 2,000-10,000 MCTs referenced above.

Presumably, Wyden learned that NSA had been doing such a count in October, well after Clapper had given his first non-responsive answer.

The 2012 privacy violation claim

Wyden skips the next request he made, when on May 4, 2012, he and Udall asked the Intelligence Community Inspector General Charles McCullough for a number (I laid out the timing of the request in this post). When they also tried to include language in the FAA reauthorization requiring the IGs to come up with a number, SSCI refused, citing their outstanding request to McCullough. Of course, McCullough did not get back to the Senators with his refusal to do such a count until after the bill had passed out of committee. He responded by saying NSA IG George Ellard didn’t have the capacity for such a review, and besides, it would violate the privacy of Americans to find out how much NSA was violating their privacy.

I defer to his conclusion that obtaining such an estimate was beyond the capacity of his office and dedicating sufficient additional resources would likely impede the NSA’s mission. He further stated that his office and NSA leadership agreed that an IG review of the sort suggested would itself violate the privacy of U.S. persons.

Clapper blows off 12 Senators

In response, Wyden rounded up some privacy minded Senators to sign onto a letter asking for an estimate of the number. In this week’s speech, Wyden noted that he said he’d be willing to take an estimate. He didn’t remind his listeners that he and his friends also asked whether such an estimate had been done.

  • Have any entities made any estimates — even imprecise estimates — about how many US communications have been collected under section 702 authorities?

The answer to that question — at least with regards to upstream collection — was yes. NSA had estimated the MCTs and Bates, using their estimate, had made an even rougher estimate of the SCTs. But as I noted here, members of Congress relying on the purported disclosure to Congress about the upstream violations wouldn’t know that — or that the upstream violations involved entirely US person collection. As Wyden noted in his speech, Congress didn’t get this information before the reauthorized FAA.

We still got no answer. And section 702 was reauthorized without this necessary information.

Clapper’s least untruthful answer

Wyden also doesn’t address Clapper’s famous March 2013 lie. Since the exposure of the phone dragnet, most discussions have assumed Wyden was probing only about that program. But the question, as asked, absolutely applied to incidental collection.

Wyden: Does the NSA collect any type of data, at all, on millions, or hundreds of millions of Americans?

Clapper: No sir.

Wyden: It does not?

Clapper: There are cases where they could inadvertently, perhaps, uh, collect, but not wittingly.

Indeed, several of Clapper’s many excuses claim he was thinking of content when he responded. Even if he were, his first answer would still be yes: the NSA collects on so many millions of Americans incidentally that it refuses to count it. But Clapper’s “not wittingly” response is almost certainly not a goof, since he gave it after Wyden had provided a day’s warning the question would be asked and after two different John Bates’ opinions that made it clear that he would forgive the collection of content so long as NSA didn’t know about it, but once they knew about it, then it would become illegal. The not wittingly response reinforces my firm belief that the reason the government refuses to count this is because then a great deal of their Section 702 collection would be deemed illegal under those two FISC precedents.

Clapper’s blow-off becomes Dan Coats’ blow-off

Which is where Wyden brings us up to date, with both house of Congress asking for such a number and — after promises it would be forthcoming — not getting it.

So last year looking at the prospect of the law coming up, there was a renewed effort to find out how many law-abiding Americans are getting swept up in these searches of foreigners. In April 2016 a bipartisan letter from members of the House Judiciary Committee asked the Director of National Intelligence for a public estimate of the number of communications or transactions involving United States persons are collected under section 702 on an annual basis. This letter coming from the House Democrats and Republicans, again asked for a rough estimate. This bipartisan group suggested working with director clapper to determine the methodology to get this estimate.

In December there were hints in the news media that something might be forthcoming, but now we’re here with a new administration considering the nomination of the next head of the intelligence community who has said that reauthorizing section 702 is his top legislative priority and that there is no answer in sight to the question Democrats and Republicans have been asking for over six years. How many innocent law-abiding Americans are getting swept up in these searches under a law that targets foreigners overseas?

There’s one tiny tidbit he doesn’t mention here. Coats never answered that he wouldn’t provide an answer. Rather, he said he didn’t understand the technical difficulties behind providing one (not even after participating in the 2012 vote where this was discussed). In his confirmation hearing, Coats explained one reason why he couldn’t learn what the technical difficulties were before he was confirmed. When he resigned the Senate, his clearance had lapsed, and during his confirmation process, his new clearance was being processed. That meant that for this — and any other classified question that Coats might want to consider anew — he was unable to get information.

The Senate doesn’t seem to care about this serial obstruction, however. Coats was confirmed with an 85-12 vote, with the following Senators voting against confirmation.

Baldwin (D-WI)
Booker (D-NJ)
Duckworth (D-IL)
Gillibrand (D-NY)
Harris (D-CA)
Markey (D-MA)
Merkley (D-OR)
Paul (R-KY)
Sanders (I-VT)
Udall (D-NM)
Warren (D-MA)
Wyden (D-OR)

Given how hard the IC is trying to hide this, the actual exposure of US persons must be fairly significant. We’ll see whether Congress finds another way to force this information out of the IC.

Updated with more granular timing on the 2011 exchange.

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Or Maybe America Post-9/11 Inspires More Disillusionment?

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Michael Hayden thinks he has an explanation for all the whistleblowers. It’s those damn millennials.

How do you make sure every one of [the people who have clearance] was and remains a loyal American or a loyal member of British security services and so on. Beyond that, Catty, there’s another dynamic at work here. In order to do this kind of stuff, we have to recruit from a certain demographic, and I don’t mean to judge them at all, but this group of millennials and related groups simply have different understandings of the words loyalty and secrecy and transparency than certainly my generation did. And so we bring these folks into the agency, good Americans all, I can only assume, but again, culturally they have different instincts than the people who made the decision to hire them.

The reason Chelsea Manning and Edward Snowden leaked vast troves of documents, according to Hayden, is because they’re young and not as loyal as people like him.

That may be true, to a point. Both Manning and Snowden seem to have a cosmopolitanism that a lot of Americans — those Americans raised during the Cold War — don’t have. We live in a globe now, just just America, and it’s possible Manning and Snowden felt some loyalty to humankind, rather than just America.

But there’s another problem with Hayden’s claim. There have been a number of whistleblowers who are of his generation. Consider all the intelligence people who’ve joined VIPS in response to idiotic foreign policy, after all.

Or consider an even more interesting example: Bill Binney. Binney was, during the Cold War, one of the most aggressive spies out there. He has said to me, repeatedly, that he’s the guy who invented Collect it all (though he, of course, wanted privacy protections for Americans). But when his approach came to be rolled out against Americans as part of the War on Terror that Hayden pursued with little self-reflection, Binney balked, quit the NSA, and started complaining that his program had been repurposed to target everyone.

Now, Binney didn’t bring a trove of documents with him. But he’s definitely animated by some of the same things that animated Manning and Snowden.

And Binney is two years older than Hayden.

There are a lot of things that motivate whistleblowers, and Daniel Ellsberg (who is 14 years older than Hayden) has said repeatedly that Snowden is just like he was.

But I do think one thing that has happened is that during the Cold War, for good or ill, Americans believed that they were the force of good. That belief is a lot harder to sustain in this day and age, for a range of reasons (not least the warrantless wiretapping and torture that Hayden facilitated). So just maybe the values remain the same, but America has changed?

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