NSA and Compromised Encryption: The Sword Cuts Both Ways

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[Snapshot, Ralph Langner presentation re: Stuxnet, outlining payload extraction (c. 2012 via YouTube)]

[Snapshot, Ralph Langner presentation re: Stuxnet, outlining payload extraction (c. 2012 via YouTube)]

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A friendly handshake is offered;
Names are swapped after entry;
The entrant delivers a present;
The present is unboxed with a secret key…

And * BOOM *

Payload delivered.

This is cyber weapon Stuxnet‘s operations sequence. At two points in the sequence its identity is masked — at the initial step, when identity is faked by a certificate, and at the third step, when the contents are revealed as something other than expected.

The toxic payload is encrypted and cannot be read until after the handshake, the name swap, and then decrypted when already deep inside the computer.

In the wake of the co-reported story on the National Security Agency’s efforts to crack computer and network encryption systems, the NSA claims they are only doing what they must to protect the country from terrorists, criminals, and cyber attacks generated by individuals, groups, and nation-state actors.

Defense, though, is but one side of the NSA’s sword; it has two lethal edges.

While use of encryption tools may prevent unauthorized access to communications, or allow malicious code to be blocked, the same tools can be used to obstruct legitimate users or shut down entire communications systems.

Encryption APIs (ex: Microsoft CryptoAPI embedded in Windows operating systems) are often used by higher level applications — for example, a random number generator within the API used to create unique keys for access can also be used to create random names or select random event outcomes like a roll of the dice.

In Stuxnet alone we have evidence of encryption-decryption used as cyber warfare, the application planned/written/supported in some way by our own government. This use was Pandora’s Box opened without real forethought to the long-term repercussions, including unintended consequences.

We know with certainty that the repercussions weren’t fully considered, given the idiocy with which members of Congress have bewailed leaks about Stuxnet, in spite of the fact the weapon uncloaked itself and pointed fingers in doing so.

One of the unconsidered/ignored/unintended consequences of using weaponry requiring encryption-decryption is that the blade can cut in the other direction.

Imagine someone within the intelligence community “detonating” a cyber weapon built in the very same fashion as Stuxnet.

A knock at the door with a handshake;
Door open, package shoved in, treated as expected goods;
Encrypted content decrypted.

And then every single desktop computer, laptop, netbook, tablet, and smartphone relying on the same standardized, industry-wide encryption tools “detonates,” obstructing all useful information activities from personal and business work to telecommunications. Read more →

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Joby Warrick Is the New Judy Miller

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Poor Joby Warrick. With Judy Miller so disgraced that Fox News had to issue a “she has nothing to apologize for” press release when they hired her back in 2008, Joby drew the short straw yesterday and was assigned to transcribe the hyped bullshit concerns arising from Israel Syria’s neighbors that Syria might be contemplating use of biological weapons. The entire Warrick article needs to be read to get a full feel for its credulous recitations of completely unfounded speculation being passed off as actual intelligence, but I will stick with just a few paragraphs. Warrick opens by making a completely baseless claim:

Last month’s alleged chemical attack near Damascus has re­focused attention on Syria’s 30-year-old biological weapons research and raised concerns about whether the government there could activate an effort to make a weapon.

Really, Joby? Aside from those “intelligence officials in two Middle East countries” who fed you this material, has anybody else voiced a concern that Syria is contemplating use of bioweapons, or even could produce bioweapons if they wanted to?

Even Warrick has to admit that any work on bioweapons in Syria is now over 30 years old. But that doesn’t deter Warrick and the spooks whispering in his ear:

Syria’s bioweapons program, which U.S. officials believe has been largely dormant since the 1980s, is likely to possess the key ingredients for a weapon, including a collection of lethal bacteria and viruses as well as the modern equipment needed to covert them into deadly powders and aerosols, according to U.S. and Middle Eastern officials and weapons experts.

Wow. the “US and Middle Eastern officials and weapons experts” guiding Warrick’s hands on the keyboard as he types are saying that despite not working on bioweapons for thirty years or so, they have the deadly organisms and equipment that would be needed to make “deadly powders and aerosols”.

Warrick and the spies who feed him have absolutely nothing on which to base this accusation. Let’s check a neutral source on what the real status of biotechnology capability in Syria is and whether it can be rapidly adapted to bioweapons. The Nuclear Threat Initiative provides a report on Syria’s potential bioweapons capability that was last updated in February of this year. They come to very different conclusions than Warrick (emphasis added):

In the past, unclassified statements by U.S. officials occasionally claimed reason to suspect Syria of maintaining an offensive BW program. [2] However, in contrast to discussions of Syrian chemical warfare (CW) capabilities, such claims have not included any details on the size and scale of Syria’s potential BW program, and are not presented alongside supporting evidence. Instead, discussions on this topic have focused on speculative extrapolations of Syrian dual-capable industry and on Syrian political motivations. Such analysis can be neither detailed nor comprehensive. Although the existence of a biotechnology industrial base would suggest that Syria has some indigenous expertise useful for developing a biological weapons capability, it does not imply and cannot confirm the existence of an offensive biological weapons program. Furthermore, given that Israel, a state that is understood to possess a nuclear arsenal and continues to occupy the Golan Heights, remains Syria’s primary security concern, and given the risk of “blowback” when deploying biological weapons, such weapons would be of questionable tactical desirability from a Syrian perspective. While public sources on the nature of Syria’s chemical and nuclear programs are limited, even less exists about Syria’s biological program, and “there is no hint of its existence from open sources.” [3]

The report goes on to detail what Syria’s biological industries do (again, emphasis added): Read more →

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The Black Budget

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Screen shot 2013-08-29 at 2.50.28 PMThe Washington Post just published an excellent package on the FY2013 Black Budget for intelligence. I’m reading through the summary now.

I’ll put working comments below. But one of my first impressions is that all of this is useful information, and in some ways really encouraging information (in others, horrifying).

For that reason, this is one of my favorite parts of the story itself:

Lee Hamilton, an Indiana Democrat who was a former chairman of the House Intelligence Committee and co-chairman of the commission that investigated the Sept. 11 attacks, said that access to budget figures has the potential to enable an informed public debate on intelligence spending for the first time, much as Snowden’s disclosures of NSA surveillance programs brought attention to operations that had assembled data on nearly every U.S. citizen.

“Much of the work that the intelligence community does has a profound impact on the life of ordinary Americans, and they ought not to be excluded from the process,” he said.

“Nobody is arguing that we should be so transparent as to create dangers for the country,” he said. But, he said, “there is a mindset in the national security community — leave it to us, we can handle it, the American people have to trust us. They carry it to quite an extraordinary length so that they have resisted over a period of decades transparency. . . . The burden of persuasion as to keeping something secret should be on the intelligence community, the burden should not be on the American public.”

Hamilton is absolutely right. There’s no reason why information at this level of detail shouldn’t be shared with American taxpayers ponying up the $52.6 billion to pay for it all.

Working comments on Budget Justifications

4: The IC is apparently going to start researching trade disputes. I assume that’ll be primarily targeted at China. But it’s an interesting development.

 

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What to Expect When You’re Expecting a Report From James “Least Untruthful” Clapper

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It is a time pregnant with possibilities as the world awaits release of the US report on chemical weapon use in Syria. Today’s Washington Post informs us that we may see the report as soon as tomorrow:

The Obama administration believes that U.S. intelligence has established how Syrian government forces stored, assembled and launched the chemical weapons allegedly used in last week’s attack outside Damascus, according to U.S. officials.

The administration is planning to release evidence, possibly as soon as Thursday, that it will say proves that Syrian President Bashar al-Assad bears responsibility for what U.S. officials have called an “undeniable” chemical attack that killed hundreds on the outskirts of the Syrian capital.

The report, being compiled by the Office of the Director of National Intelligence, is one of the final steps that the administration is taking before President Obama makes a decision on a U.S. military strike against Syria, which now appears all but inevitable.

Wait. What?

Marcy already mused on all the talking heads focusing on how a US response to Assad using chemical weapons on Syrian citizens is all about our “credibility“. If the US response is so tied up with credibility, how on earth can it be that the person charged with compiling the report on which we will base military action is the man whose obituary will be obliged to mention his admission that he lied to Congress, but that we should excuse the lies because he gave the “least untruthful” version possible? That is how the US will convince the world that, unlike when we lied about Iraq having WMD’s before we invaded, this time we aren’t lying about Assad?

Note also that Marcy mentioned yesterday that the US, through John Kerry, tried to prevent the UN carrying out its own investigation into the chemical weapon evidence. That move undercuts US efforts at credibility since outside, independent confirmation of findings would be a huge step in providing assurance that the US is being truthful.

The UN effort continues today, with the delegation of inspectors visiting a different Damascus suburb than the one they visited on Monday. (See the map in this BBC article for the sites at which chemical weapons were accused of being used in the attack.)

We get a bit of information from AP on how the UN team is operating:

The U.N. chemical weapons experts conducted their first field testing in the western Damascus suburb of Moadamiyeh on Monday. They collected samples and testimony after a treacherous journey through government and rebel-held territory. Their convoy was hit by snipers but members of the team were unharmed.

The ability of the UN team to interview victims (which is presumably how they got “testimony”) and then to take their own samples is a key part of making their work believable. Both environmental samples at the sites of attack and biological samples from the victims play a role in identifying whether and what chemical agents were used. See this informative piece from FAS on descriptions of symptoms that the investigators would be looking for when interviewing victims.

When Clapper finally releases the US report, one of the most important aspects in that report will be the provenance of any samples the US subjected to chemical analysis. We don’t have acknowledged “boots on the ground” in Syria, so how did the US get samples? What certifications, if any, are there on chain of custody documentation on those samples? As with most other accounts of the chemical attack, the AP article linked above mentions that Doctors Without Borders has documented the number of dead and injured from the attack. Samples and documentation coming from them would be seen as having a much greater level of independence than samples provided by the rebel groups that control the territory where the attacks are said to have taken place.

Even though their main website has been taken down, reportedly by the Syrian Electronic Army, the New York Times is continuing its reporting on the situation in Syria. An article published yesterday afternoon provides some useful background information on the ability of modern forensic methods to detect chemical agent use long after the fact: Read more →

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Cruise Killing on the Passive Voice

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Before I lay out the chronology of the road to war against Syria, check out the language National Security Advisor Susan Rice used to blow off the UN investigation.

Ms. Rice sent the email to Ms. Power and others, officials said. “The investigation is…too late, and will actually tell us what we already know: CW was used,”

While the WSJ quotes Rice claiming to know who actually used the chemical weapons in the next line, ultimately it comes down to this:

“CW was used.”

Jay Carney today also used the passive voice in dismissing the UN investigation.

So the work of that team is redundant, you might say, because it is clearly established already that chemical weapons have been used on a significant scale.

The fucking passive voice.

But before we got to that point consider what happened. First (according to WSJ’s Arab diplomats) the always trustworthy Israelis caught someone moving CW into place.

One crucial piece of the emerging case came from Israeli spy services, which provided the Central Intelligence Agency with intelligence from inside an elite special Syrian unit that oversees Mr. Assad’s chemical weapons, Arab diplomats said. The intelligence, which the CIA was able to verify, showed that certain types of chemical weapons were moved in advance to the same Damascus suburbs where the attack allegedly took place a week ago, Arab diplomats said.

Then after the attack, according to Foreign Policy, US spooks overheard a Syrian Defense official “demanding answers” from an officer in the chemical weapons unit from which the CW would have been used.

Last Monday [sic], in the hours after a horrific chemical attack east of Damascus, an official at the Syrian Ministry of Defense exchanged panicked phone calls with leader of a chemical weapons unit, demanding answers for a nerve agent strike that killed more than 1,000 people. Those conversations were overheard by U.S. intelligence services, The Cable has learned.

FP goes on to point out a lot of the important things we don’t know, such as why and on whose authority, even while laying out the case that CW was used. (Though here are some doubts about whether it was really sarin.)

Meanwhile, according to Gareth Porter, it took until Saturday for the UN to request access to the attack site. Syria granted that access Sunday. At which point John Kerry attempted to personally intervene to stop the investigation.

After the deal was announced on Sunday, however, Kerry pushed Ban in a phone call to call off the investigation completely.

The Wall Street Journal reported the pressure on Ban without mentioning Kerry by name. It said unnamed “U.S. officials” had told the secretary-general that it was “no longer safe for the inspectors to remain in Syria and that their mission was pointless.”

But Ban, who has generally been regarded as a pliable instrument of U.S. policy, refused to withdraw the U.N. team and instead “stood firm on principle”, the Journal reported. He was said to have ordered the U.N. inspectors to “continue their work”.

Meanwhile, the Administration also seems to be delaying the release of its own intelligence report, after promising it would already be out.

Q And there’s a lot of speculation that this intelligence report that presumably would link Assad directly to the chemical weapons attack might be released today. Can you give us an update on the timing?

MR. CARNEY: What I would say is that yesterday I made clear that the intelligence community is working on an assessment and that once we had that assessment we would provide information to the public about it in the coming days. And that remains true. I think that that’s speculation that it would come today rather than some other day. But it will come and I think you can expect it this week.

Do you get the feeling there are some holes in the intelligence report? Such as, if this was ordered by someone in Assad’s chain of command, why a Defense Ministry official would be making “panicked calls” about the strike?

There’s one more thing I find at least interesting about the intelligence.

Recall back in December, when the CW scares first started. We had evidence — as the Israelis claim we have no — of Syria pre-positioning weapons. And then Syria lost its Toobz access. I noted at the time that the utter lack of panic about the latter event suggested that we knew precisely why and how the Toobz came down. That detail may mean nothing about today’s events (though at the time it suggested that the source of the intelligence wasn’t SIGINT, because if the US had just lost its intelligence access it would have been panicking). But it seems notable, given the centrality of the “moving chemicals” intelligence again.

There is, to be sure, a great deal of evidence that (as both Rice and Carney said) “CW were used.”

But the Administration seems increasingly squirrelly allowing time to discover the rest of the occasion, which may be why a Syrian officer release CW without having had received an order from his superiors.

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Parchin Asphalt: Obstructing Sampling or Sealing the Record?

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With the opportunity for significant progress in negotiating a peaceful settlement regarding Iran’s nuclear activities looking better than it has in a long time, I had intended to ignore the latest bleating over developments at Parchin. The complaints did even make their way into the New York Times earlier in the week, so they probably do deserve a response.

Here is how David Albright and pals frame the latest developments:

Recent commercial satellite imagery of the Parchin site in Iran shows the extent of new paving as well as the extent of other alternations undertaken at the site over the past year and a half starting in February 2012.  Iran appears to be in the final stages of modifying the suspected high explosive test site at the Parchin complex, having recently asphalted large sections of the site.  As noted in several of the International Atomic Energy Agency’s (IAEA’s) quarterly Iran safeguards reports and in numerous ISIS satellite imagery reports on Parchin, asphalting and the other documented activities have significantly changed the site and impacted the ability of IAEA inspectors to collect environmental samples and other evidence that it could use to determine whether nuclear weapons-related activities once took place there.  Asphalting an entire area in this manner would make it very hard to take soil samples and likely be effective at covering up environmental evidence of nuclear weaponization-related experiments.

Throughout this process of cat and mouse games with Iran over their work at the Parchin site, I have maintained that if the work Iran is accused of carrying out there did indeed take place, and if they have attempted clean-up procedures as accused, there still is a reasonable chance that appropriate sampling of the equipment and the area would detect vestiges of the radioactivity that cannot be removed. In addition to the interior of the suspect building and the blast chamber itself likely being made radioactive due to neutron activation throughout the entire thickness of the steel (and thus unable to be scrubbed), satellite imagery has been used to document what appeared to be potential wash water being allowed to run outside the building of main interest. There has been movement of some soil, but the likely deposition site of that soil has been documented in the satellite photos.

Throughout all of this activity, the satellite photos have provided a record from which a team would know the most likely sites to sample if they wish to know how much radioactivity may have been washed out of the building. This latest accusation that paving the site over with asphalt would make sampling harder simply rings hollow. A team that has been allowed access to the site would hardly find a layer of asphalt to be a significant obstruction if they are determined to sample the locations that satellite imagery has told them should be an informative location for sampling.

Paving the area with asphalt actually has the potential to preserve the site for sampling in the future. Although Parchin is in desert with little rainfall, percolation of water through the soil would remain as one the largest factors making sampling less informative over time. Asphalt paving has been used (pdf) to seal areas against movement of radioactivity through soil: Read more →

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Yellowcake In the Soles of His Shoes

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Splash page of alibaba.com, where it would appear that Patrick Campbell became Cassim and was unable to exit with his treasure.

Splash page of alibaba.com, where it would appear that Patrick Campbell became Cassim and was unable to exit with his treasure.

Last night, The Smoking Gun and then CBS reported on the latest sting carried out by our government to keep us safe from people too stupid for their own good. This time, instead of the FBI setting up the security theater sting, it was an undercover agent for ICE, or Immigration and Customs Enforcement within the Department of Homeland Security. The criminal complaint (pdf) filed yesterday is written by an ICE Special Agent working out of Miami (I’ll return later to the ironic job position she holds).

Once again, as we see repeatedly in the government’s adventures in security theater, we appear to have ensared a small-time hustler but will undoubtedly play this up as a major interdiction of international terrorism. The hustler this time is one Patrick Campbell, who stands accused of brokering a deal to sell U3O8 to Iran. Campbell apparently was promising to ship 1000 tons of the processed uranium ore, but was arrested in New York yesterday Wednesday when he entered the country from Sierra Leone, where he reportedly lives.

How was Campbell caught? Here is how the complaint describes the elaborate trap ICE devised:

alibaba ad

 

Yup. Everybody knows that Iran absolutely would go shopping for uranium on alibaba.com. Note that ICE does not appear to be able to get their high-tech document production equipment to produce subscripts. There really is no such thing as Uranium 308 or U308. Writing it that way makes it look like they are referring to a uranium isotope. The naturally occurring isotopes of uranium are listed here, where we see that the atomic masses range from 232 (= U-232) to 238 (=U-238). The isotope of interest is U-235, which occurs in nature as only 0.7% of the uranium atoms. Uranium is mined as raw ore which is chemically treated to produce U3O8, which is otherwise known as yellowcake. For further processing, the yellowcake is then converted to UF6 gas and then put into gas centrifuges where the mixture is selectively enriched for the U-235 isotope. Low-grade enriched uranium has the U-235 enriched from the naturally occurring 0.7% to the range of 3-5%. Iran has also produced mid-grade uranium at 20% U-235 for its research reactor used to produce medical isotopes, but this still falls short of the 90% or so U-235 needed for a nuclear weapon.

It would appear that ICE ran this scam on such a short budget that they wouldn’t even front Campbell the money for travel to the US from Sierra Leone. In his negotiations with the undercover agent, Campbell demonstrated a pitiful level of awareness of operational security. The complaint notes many communications with Campbell by email, telephone and Skype. There is no indication that any of the communications were encrypted. The extent of his op-sec appears to be his brilliant use of an acronym to refer to the transaction:

MEUS

 

Campbell finally made it to New York yesterday Wednesday, where he was promptly arrested. Here is how The Smoking Gun opened their report:

A foreigner who agreed to sell undercover Homeland Security agents 1000 tons of yellowcake uranium for shipment to Iran was arrested yesterday when he flew into the United States with uranium samples hidden inside the soles of shoes in his luggage, The Smoking Gun has learned.

Wow. He tried to hide his yellowcake samples in the soles of his shoes, which he then put into checked baggage.

This whole episode is stupid and wasteful on a wide range of levels.

First, Iran purchased huge stockpiles of yellowcake back in the days of the Shah. Read more →

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Not-So-Trusted Computing: German Government Worried About Windows 8 Risks

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Microsoft’s “trusted computing platform.”

Microsoft’s “secure boot” technology.

The doublespeak almost writes itself these days. Whose “trusted computing”? Whose “platform”? And whose “secure boot”?

At least one government has expressed concerns in internal documents, buttressed by an unusual public statement in response to reports about the leaked documents.

According to German news outlet Die Zeit, internal documents from the Bundesamt fur Sicherheit in der Informationstechnik (Germany’s Federal Office for information Security – BSI) warn that Microsoft Windows 8’s Trusted Computing Platform poses a security risk.

The BSI issued a response, the first paragraph of which acknowledges the news reports; it also refers to an internal paper by the Bundeswirtschaftsministeriums (Germany’s Federal Ministry of Economics and Technology – BMWi) advising caution in using the Trusted Computing Platform. This may not be the first cautionary communication by the BMWi as it is not clear whether the paper referenced by the BSI today is the same internal paper issued on the subject in early 2012.

In the second paragraph, BSI denies it has issued any warning to private or public sector users, though this announcement doesn’t deny a warning might be warranted since government agencies are warning each other internally.

The third paragraph says that the Win 8 TCP (using Trusted Platform Module TPM 2.0) might offer improved security for some groups, though transparency should be offered by the manufacturer.

But the kicker is the fourth paragraph:

“From the BSI’s perspective, the use of Windows 8 combined with TPM 2.0 is accompanied by a loss of control over the operating system and the hardware used. As a result, new risks arise for the user, especially for the federal government and for those providing critical infrastructure. In particular, on hardware running Windows 8 that employs TPM 2.0, unintentional errors of hardware or the operating system, but also errors made by the owner of the IT system, could create conditions that prevent further operation of the system. This can even lead to both the operating system and the hardware employed becoming permanently unusable. Such a situation would not be acceptable for either the federal authorities or for other users. In addition, the newly-established mechanisms can also be used for sabotage by third parties. These risks must to be addressed.”[1]

“Loss of control over the operating system” isn’t a minor trifle. This suggests that any and all computers with this “feature” could go rogue and operate in contravention to the owners’ instructions, at the direction of some unseen entity on a network or by injection of an application through thumb drive, disk drive, CD, etc.

This also suggests that a Win 8 system using TPM 2.0 might well reject any attempts to use an alternative operating system — a so-called “secure boot” might cut off any application other than Win 8. For all intents and purposes, a machine with Win 8 and TPM 2.0 will operate to Microsoft’s orders and to the orders of whomever is ordering Microsoft these days. It’s not out of the question that Win 8 systems lacking valid TPM 2.0 might be prevented from accessing the internet or any other network.

Which begs the question: if Windows 8 and TPM 2.0 are installed, whose computer is it? Read more →

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Bradley Manning’s Sentence, Parole and Appeal Implications

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CryingJusticeOn Monday I laid out the dynamics that would be in play for the court in considering what sentence to give Bradley Manning in light of both the trial evidence and testimony, and that presented during the sentencing phase after the guilty verdict was rendered. Judge Lind has entered her decision, and Bradley Manning has been sentenced to a term of 35 years, had his rank reduced to E-1, had all pay & allowances forfeited, and been ordered dishonorably discharged. This post will describe the parole, appeal and incarceration implications of the sentence just imposed.

Initially, as previously stated, Pvt. Manning was credited with the 112 days of compensatory time awarded due to the finding that he was subjected to inappropriate pre-trial detention conditions while at Quantico. Pvt. Manning was credited with a total 1294 days of pre-trial incarceration credit for the compensatory time and time he has already served since the date of his arrest.

Most importantly at this point, Manning was sentenced today to a prison term of 35 years and the issue of what that sentence means – above and beyond the credit he was given both for compensatory time and time served – is what is critical going forward. The following is a look at the process, step by step, Bradley Manning will face.

The first thing that will happen now that Judge Lind has gaveled her proceedings to a close is the court will start assembling the record, in terms of complete transcript, exhibits and full docket, for transmission to the convening authority for review. It is not an understatement to say that this a huge task, as the Manning record may well be the largest ever produced in a military court martial. It will be a massive undertaking and transmission.

At the same time, the defense will start preparing their path forward in terms of issues they wish to argue. It is my understanding that Pvt. Manning has determined to continue with David Coombs as lead counsel for review and appeal, which makes sense as Coombs is fully up to speed and, at least in my opinion, has done a fantastic job. For both skill and continuity, this is a smart move.

The next step will be designation of issues to raise for review by the “convening authority”. In this case, the convening authority is Major General Jeffrey Buchanan, who heads, as Commanding General, the US Army’s Military District of Washington. This step is quite different than civilian courts, where a defendant proceeds directly to an appellate court.

The accused first has the opportunity to submit matters to the convening authority before the convening authority takes action – it’s not characterized as an “appeal,” but it’s an accused’s first opportunity to seek relief on the findings and/or the sentence. According to the Manual for Courts-Martial, Rule for Court-Martial 1105:

(a) In general. After a sentence is adjudged in any court-martial, the accused may submit matters to the convening authority in accordance with this rule.

(b) Matters which may be submitted.
(1) The accused may submit to the convening au­ thority any matters that may reasonably tend to af­ fect the convening authority’s decision whether to disapprove any findings of guilty or to approve the sentence. The convening authority is only required to consider written submissions.
(2) Submissions are not subject to the Military Rules of Evidence and may include:
(A) Allegations of errors affecting the legality of the findings or sentence;
(B) Portions or summaries of the record and copies of documentary evidence offered or intro­ duced at trial;
(C) Matters in mitigation which were not avail­ able for consideration at the court-martial; and
(D) Clemency recommendations by any mem­ber, the military judge, or any other person. The defense may ask any person for such a recommendation.

Once the convening authority has the full record and the defense has designated its matters for review, Buchanan will perform his review and determine whether any adjustments to the sentence are appropriate, and that will be considered the final sentence. At this point, the only further review is by a traditional appeal process.

Generally, the level of appellate review a case receives depends on the sentence as approved by the Read more →

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The Bradley Manning Sentencing Dynamics

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U.S. Army Private First Class Bradley Manning stands convicted of crimes under the Uniform Code of Military Justice (UCMJ). The convictions result from two events. The first was a voluntary plea of guilty by Pvt. Manning to ten lesser included charges in February, and the remainder from a verdict of guilty after trial entered by Judge Denise Lind on July 30.

The maximum possible combined sentence originally stood at 136 years for the guilty counts, but that was reduced to a maximum possible sentence of 90 years after the court entered findings of merger for several of the offenses on August 6. The “merger” resulted from the partial granting of a motion by Mr. Manning’s attorney arguing some of the offenses were effectively the same conduct and were therefore multiplicitous. The original verdict status, as well as the revised verdict status after the partial merger of offenses by the court, is contained in a very useful spreadsheet created by Alexa O’Brien (whose tireless coverage of the Manning trial has been nothing short of incredible).

Since the verdict and merger ruling, there have been two weeks of sentencing witnesses, testimony and evidence presented by both the government and defense to the court. It is not the purpose of this post to detail the testimony and evidence per se, but rather the mechanics of the sentencing process and how it will likely be carried out. For detailed coverage of the testimony and evidence, in addition to Alexa O’Brien, the reportage of Kevin Gosztola at FDL Dissenter, Julie Tate at Washington Post, Charlie Savage at New York Times and Nathan Fuller at the Bradley Manning Support Network has been outstanding.

All that is left are closing arguments and deliberation by Judge Lind on the final sentence she will hand down. So, what exactly does that portend for Bradley Manning, and how will it play out? Only Judge Lind can say what the actual sentence will be, but there is much guidance and procedural framework that is known and codified in rules, practice and procedure under the UCMJ.

Initially, the obvious should be stated, Bradley Manning is in front of an Army court martial process under the UCMJ, and while there is Read more →

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