Archive for category: emptywheel

I’m going to have plenty to say on Shane Harris’ story revealing that the NSA used hackers and foreign cyberhacks as their excuse for illegally accessing customer data prior to 9/11. First, though, I’d like to remind readers of this earlier Shane Harris story (with Tim Naftali)–to my mind the best reporting on this topic outside of the Risen-Lichtblau early scoop.

A former telecom executive told us that efforts to obtain call detailsgo back to early 2001, predating the 9/11 attacks and the president’snow celebrated secret executive order. The source, who asked not to beidentified so as not to out his former company, reports that the NSAapproached U.S. carriers and asked for their cooperation in a"data-mining" operation, which might eventually cull "millions" ofindividual calls and e-mails.

In other words, nearly two years ago, Harris (with Naftali) quoted a telecom executive saying that something had gone on earlier than 9/11. And now, he’s providing details about Qwest’s refusal to cooperate.

The Rationale

So, returning to this story after Nacchio’s appeal has raised a lot of questions about the earlier request, Harris reveals the rationale the Administration offered for its earlier data mining.

However, in February 2001, the NSA’s primary purpose in seeking accessto Qwest’s network apparently was not to search for terrorists but towatch for computer hackers and foreign-government forces trying topenetrate and compromise U.S. government information systems,particularly within the Defense Department, sources said. Governmentofficials have long feared a "digital Pearl Harbor" if intruders wereto seize control of these systems or other key U.S. infrastructuresthrough the Internet.

[snip]

[former NSA Director] Minihan singled out Russia and China; the latter, he said, had alreadyincorporated cyber-warfare into its military training. He also pointedto the emergence of "transnational security challenges," includingterrorism, drug trafficking, and international organized crime. "Theseopportunists, enabled by the explosion of technology and theavailability of inexpensive, secure means of communication, pose asignificant threat to the interests of the United States and itsallies," Minihan said.

Harris also gives a general sense of how the program was justified as legal.

A former senior NSA official said that the agency also worried thatbecause these groups understood privacy laws so well, they knew how toavoid detection and could predict what the NSA would, and wouldn’t, doto track them. "There was such a nuanced understanding of how to tie usin knots and use American law against us, that there were certainlypockets of people saying, ‘We’ve got to be assertive; we’ve got to bemore aggressive on this,’ " the former official said.

Hayden, who ran the NSA from 1999 to 2005, was well known forhis willingness to push operations to the legal edge. "We’re prettyaggressive within the law," Hayden said in public remarks after 9/11. "As a professional, I’m troubled if I’m not using the full authority allowed by law."

Hayden has repeated that refrain since the attacks. But formerintelligence officials doubted that he would have authorized anyrequest to Qwest, or other companies, that he believed violated thelaw. They noted, however, that many in the agency had long thought thatmonitoring "metadata," such as a phone number, the length of a call, ora series of calls placed from a particular phone, didn’t implicateprivacy because such information didn’t constitute the "content" of amessage — its written or spoken words. [my emphasis]

This excuse sounds precisely like public denials about the program Hayden made after the NYT revealed the problem with the program involved data mining (this quote is a riff on a Glenn Greenwald quote).

In January, 2006, Gen. Michael Hayden — the NSA Director during theimplementation of the "TSP" and the current CIA Director — gave apress briefing at the National Press Club in which he emphatically denied that the NSA had been engaging in the type of "data mining" which this morning’s articles describe. During his opening remarks, Hayden said:

Let me talk for a few minutes also about what this program is not. It is not a driftnet over Dearborn or Lackawanna or Freemont grabbingconversations that we then sort out by these alleged keyword searchesor data-mining tools or other devices that so-called experts keeptalking about.

This is targeted and focused. This is not about interceptingconversations between people in the United States. This is hot pursuitof communications entering or leaving America involving someone webelieve is associated with al Qaeda.

Hethen made clear that the NSA could not and would not engage in suchdata mining because of the "ethical" and "practical" considerationsinvolved:QUESTION: Are you spying on or intercepting ourcommunications, e-mails and telephone conversations of those of us whoare organizing The World Can’t Wait to Drive Out the Bush Regime?

GEN. HAYDEN: You know, I tried to make this as clear as I couldin prepared remarks. I said this isn’t a drift net, all right? I said we’re not there sucking up coms and then using some of these magically alleged keyword searches — "Did he say ‘jihad’?

[bold Glenn’s; italics mine]

In other words, faced with the anonymous description that the problem with the warrantless wiretap program had to do with data mining, Hayden neatly parsed that it couldn’t be data mining because they didn’t "[suck] up coms and then [use] some of those magically alleged keyword searches." Hayden denied that they had mined content, but he stopped well short of saying that they hadn’t mined metadata.

Which strongly suggests that Michael Hayden was well aware that the NSA was mining metadata, long before 9/11.

Telecom lobbyist John Ashcroft is back on the influence circuit again, trying to admonish us that refusing the telecoms immunity will kill people. Only he usually doesn’t refer to telecom immunity as such. Instead, he calls on Congress to "terminate" the lawsuits against the telecom companies.

There are many complex and difficult issues associated with thesedebates, but whether to terminate the huge lawsuits that have beenfiled against the nation’s major telecommunications carriers accused ofcooperating with classified counterterrorism programs is not one ofthem.

Who knew that John Ashcroft was such a good sophist?

Not surprisingly, Ashcroft dodges several key issues. He suggests that there are only two circumstances where immunity would be granted.

The Senate bill would confer immunity in only two limitedcircumstances: if the carrier did not do what the plaintiffs claim; orif the carrier did do what the plaintiffs claim but based on explicitassurances from the highest levels of the government that theactivities in question were authorized by the president and determinedto be lawful.

But that’s one of the tricks with this surveillance–the telecoms did something, and it’s not entirely clear we’ve described what they did properly. Moreover, there’s the presence of telecoms that recognized the form of the requests was illegal–for some reason, Read more →

I haven’t seen any bears. I found a few beers, though.

Here’s a quick hits list of things I may return to on Wednesday, when I resume normal blogging.

• The Pats beat the Colts … ugly.
• Shane Harris reveals that the rationale for asking Qwest to break the law before 9/11 was hackers. Hackers, terrorists … same difference I guess. Though given the Administration’s troubled history with cyber-security czars, I’d like to consider the implications that their early excuses for violating our privacy pertain to cyber-security. John Conyers has finally asked for more details on the Qwest allegations.
• Our consumer product safety czar has been doing some swank traveling, courtesy of those we are paying her to protect us from.
• Orange County’s Republican Sheriff has been indicted. He has featured in some stories we’ve tracked earlier in this blog. And one wonders whether he was protected in the past by Bush’s USAs?
• The judge in the AIPAC case has approved the defense scheme to call Condi et al to testify about how they leak information through lobbyists. I’m actually more optimistic than most that something might come of this. Not to mention, I’m rather interested by the complete list of those who have been Read more →

Here’s the letter from Ashcroft, Comey, Goldsmith, and Philbin that came up so often in today’s SJC hearing. The key graf is this one, in which four top lawyers say, "to hell with the Courts, we’ve got two branches plus Cheney, who needs a third?"

Finally, we note that we are familiar with the legal analysis conducted within the Executive Branch of intelligence activities allegedly connected to the lawsuits against telecommunications carriers and with debates within the Executive Branch about that analysis. Given our experiences, we can certainly understand that reasonable people may question and wish to probe the legal bases for such intelligence activities. We firmly believe, however, that the best place for that examination and debate is not in a public lawsuit against private companies that were asked to assist their Nation, but within the Executive branch, where intelligence-gathering decisions are made, and in joint efforts between the Executive Branch·and Congress to ensure appropriate oversight.

The paragraph pretty much says it all. It comes as close as they ever do to saying, "you’ve got to listen to use because we’re the four people who objected to the illegalities of this program in the first place." Elsewhere, they don’t acknowledge why Read more →

In an email to Laura Rozen and Jeff Lomonaco this morning, I predicted Henry Waxman would be mightily interested in the news that the Blackwater guards involved in the September 16 shooting had been granted immunity.

In any case, I suspect Condi will regret that she didn’t mention thiswhen visiting Congress last week. I assume we’ll have a letter fromWaxman at about 1:00 PM today.

Sure enough, at 1:23, the Committee sent out the letter.

Apparently, Waxman wrote it before CNN started reporting yet more anonymous sources saying the whole thing is a big joke, that the guards didn’t get immunity. Or rather, they try to dodge the issue by pretending the claim pertained to blanket immunity (which it never did).

No blanket immunity deal was offered to Blackwater guards for theirstatements regarding a shootout in Iraq last month that left 17 Iraqicivilians dead, two senior State Department officials told CNN Tuesday.

However, some kind of limited immunity was apparently offered by StateDepartment investigators when they questioned the Blackwater personnelapparently involved in the shootings, the officials said.

In any case, Waxman (as you’d expect) asks the money question:

5. When did you, Deputy Secretary of State John Negroponte, former Assistant Secretary of
State Richard Griffin, Ambassador David Read more →