I Told You So, It’s about Cybersecurity Edition

When James “Least Untruthful” Clapper released the first version of PRISM success stories and the most impressive one involved thwarting specific cyberattacks, I noted that the NSA spying was about hackers as much as terrorists.

When  “Lying Keith” Alexander answered a question about hacking China from George Stephanopoulos by talking about terror, I warned that these programs were as much about cybersecurity as terror. “Packets in flight!”

When the Guardian noted that minimization procedures allowed the circulation of US person communications collected incidentally off foreign targets if they were “necessary to understand or assess a communications security vulnerability,” I suggested those procedures fit cybersecurity targets better than terror ones.

When Ron Wyden and Mark Udall caught Lying Keith (again) in a lie about minimization, I speculated that the big thing he was hiding was that encrypted communications are kept until they are decrypted.

When I compared minimization procedures with the letter of the law and discovered the NSA had secretly created for itself the ability to keep US person communications that pose a serious threat to property (rather than life or body), I suggested this better targeted cyber criminals than terrorists.

When Joel Brenner suggested Ron Wyden was being dishonorable for asking James Clapper a yes or no question in March 2013, I noted that Wyden’s question actually referred to lies Lying Alexander had told the previous year at DefCon that hid, in part, how hackers’ communications are treated.

When the Guardian happened to publish evidence the NSA considers encryption evidence of terrorism the same day that Keith Alexander spokes to a bunch of encrypters exclusively about terrorism, I suggested he might not want to talk to those people about how these programs are really used.

And when I showed how Lying Keith neglected his boss’ earlier emphasis on cyber in his speech to BlackHat in favor of terror times 27, I observed Lying Keith’s June exhortation that “we’ve got to have this debate with our country,” somehow didn’t extend to debating with hackers.

I told you it would come to this:

U.S. officials say NSA leaks may hamper cyber policy debate

Over two months after Edward Snowden’s first disclosures, the cyberwarriors are now admitting disclosures about how vast is NSA’s existing power — however hidden behind the impetus of terror terror terror — might lead Congress to question further empowering NSA to fight cyberwar.

I told you so. Read more

Was It NSA or a Yemeni “Ally” Leaking the “Clear Orders” from Zawahiri to Wuhayshi?

Apparently, it wasn’t enough for someone to leak this information to the NYT (which said that it withheld some information at the request from the government).

The United States intercepted electronic communications this week among senior operatives of Al Qaeda, in which the terrorists discussed attacks against American interests in the Middle East and North Africa, American officials said Friday.

The intercepts and a subsequent analysis of them by American intelligence agencies prompted the United States to issue an unusual global travel alert to American citizens on Friday, warning of the potential for terrorist attacks by operatives of Al Qaeda and their associates beginning Sunday through the end of August.

Then someone apparently in Sanaa leaked this to McClatchy.

An official who’d been briefed on the matter in Sanaa, the Yemeni capital, told McClatchy that the embassy closings and travel advisory were the result of an intercepted communication between Nasir al-Wuhayshi, the head of the Yemen-based Al Qaida in the Arabian Peninsula, and al Qaida leader Ayman al Zawahiri in which Zawahiri gave “clear orders” to al-Wuhaysi, who was recently named al Qaida’s general manager, to carry out an attack.

The official, however, said he could not divulge details of the plot. AQAP’s last major attack in Sanaa took place in May 2012 when a suicide bomber killed more than 100 military cadets at a rehearsal for a military parade. [my emphasis]

Which the WaPo has now reported too.

Al-Qaeda leader Ayman al-Zawahiri ordered the head of the terrorist group’s Yemen affiliate to carry out an attack, according to intercepted communications that have led to the closure of U.S. embassies and a global travel alert, said a person briefed on the case.

In one communication, Zawahiri, who succeeded Osama bin Laden, gave “clear orders” to Nasir al-Wuhayshi, the founder of al-Qaeda in the Arabian Peninsula, to undertake an attack, the source said. McClatchy newspapers first reported the exchange on Sunday. [my emphasis]

In a follow-up story, McClatchy attributes their information to a Yemeni official.

U.S. officials have been secretive about what precise information led to the worldwide travel advisory and embassy closings, but a Yemeni official told McClatchy on Sunday that authorities had intercepted “clear orders” from al Qaida leader Ayman Zawahiri to Nasir al Wuhayshi, the head of the affiliate in Yemen, to carry out an attack.

Remember, Saudis and Yemeni sources have a well-established history of leaking sensitive intelligence about our thwarted plots. But in this case, the original source (to the NYT) seems to be American, with a Yemeni first providing the really remarkable level of detail.

And thus far, no one from the government has called for the NYT, McClatchy, and WaPo sources to be jailed. How … telling.

Perhaps just as interesting, the US has used a C-17 to evacuate what State is calling emergency personnel from Yemen.

Pentagon officials said a U.S. Air Force C-17 transport plane carrying some American government personnel had taken off from Yemen. They said the State Department had ordered non-essential personnel to leave the country.

An unknown number of U.S. Embassy personnel remain in Sanaa.

Pentagon Press Secretary George Little said the Defense Department “continues to have personnel on the ground in Yemen to support the U.S. State Department and monitor the security situation.”

But someone wants Andrea Mitchell not to report this as an evacuation; whatever it is, almost 100 people have been, um, evacuated.

Are these “emergency personnel” people whose identity has been leaked?

Now, as a threshold level, the news that the US has collections of whatever presumably well-protected communication channel exist(ed) between Zawahiri and Wuhayshi sure seems to undermine government claims that Edward Snowden has ruined their collections, given that two of our very sharpest targets are still using communications accessible to US targeting.

Consider one more thing. If our collections are that good that we have a bead on either Zawahiri or Wuhayshi, why don’t we have their location?

We’ve launched 4 drone strikes in 10 days in Yemen. If we did have means of intercepting Wuhayshi’s communications and are clearly on a drone strike binge, then what does it mean that sources — including at least one Yemeni official — are leaking news that we have those intercepts?

Update: And here’s Michael Hayden, who for weeks has been arguing that Edward Snowden should be made an example of, suggesting this alert is good because it lets the bad guys know we’re onto them.

“The announcement itself may also be designed to interrupt Al Qaeda planning, to put them off stride,” Michael V. Hayden, a former C.I.A. director, said on “Fox News Sunday.” “To put them on the back foot, to let them know that we’re alert and that we’re on at least to a portion of this plotline.”

US Justice: A Rotting Tree of Poisonous Fruit?

Saturday, the NYT reported that other agencies within government struggle to get NSA to share its intelligence with them.

Agencies working to curb drug trafficking, cyberattacks, money laundering, counterfeiting and even copyright infringement complain that their attempts to exploit the security agency’s vast resources have often been turned down because their own investigations are not considered a high enough priority, current and former government officials say.

Of the 1,410 words in the article, 313 words are explicitly attributed to Tim Edgar, who used to work for ACLU but starting in 2006 worked first in the Office of Director of National Intelligence and then in the White House. Another 27 are attributed to “a former senior White House intelligence official,” the same description used to introduce Edgar in the article.

The article ends with Edgar expressing relief that NSA succeeded in withholding material (earlier he made a distinction between sharing raw data and intelligence reports) from agencies executing key foreign policy initiatives in the age of cyberwar and Transnational Criminal Organizations, and in so doing avoid a “nightmare scenario.”

As furious as the public criticism of the security agency’s programs has been in the two months since Mr. Snowden’s disclosures, “it could have been much, much worse, if we had let these other agencies loose and we had real abuses,” Mr. Edgar said. “That was the nightmare scenario we were worried about, and that hasn’t happened.”

Today, San Francisco Chronicle reminds that NSA does hand over evidence of serious criminal activities if it finds it while conducting foreign intelligence surveillance, and prosecutors often hide the source of that original intelligence.

Current and former federal officials say the NSA limits non-terrorism referrals to serious criminal activity inadvertently detected during domestic and foreign surveillance. The NSA referrals apparently have included cases of suspected human trafficking, sexual abuse and overseas bribery by U.S.-based corporations or foreign corporate rivals that violate the Foreign Corrupt Practices Act.

[snip]

“If the intelligence agency uncovers evidence of any crime ranging from sexual abuse to FCPA, they tend to turn that information over to the Department of Justice,” Litt told an audience at the Brookings Institution recently. “But the Department of Justice cannot task the intelligence community to do that.”

[snip]

“The problem you have is that in many, if not most cases, the NSA doesn’t tell DOJ prosecutors where or how they got the information, and won’t respond to any discovery requests,” said Haddon, the defense attorney. “It’s a rare day when you get to find out what the genesis of the ultimate investigation is.”

The former Justice Department official agreed: “A defense lawyer can try to follow the bouncing ball to see where the tip came from — but a prosecutor is not going to acknowledge that it came from intelligence.”

And (as bmaz already noted) Reuters reminds that the DEA has long had its own electronic surveillance capability, and it often hides the source of intelligence as well.

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin – not only from defense lawyers but also sometimes from prosecutors and judges.

The undated documents show that federal agents are trained to “recreate” the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant’s Constitutional right to a fair trial. If defendants don’t know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence – information that could reveal entrapment, mistakes or biased witnesses.

As bmaz also noted, none of this was very secret or new. The FISA sharing is clearly permitted by the minimization procedures. Litigation on it 11 years ago suggested it may be even more abusive than laid out under the law. And bmaz has personally been bitching about the DEA stuff as long as I’ve known him.

These articles suggesting there may be more sharing than the NYT made out on Saturday, then, are primarily reminders that when the fruits of this intelligence get shared, the source of the intelligence often remains hidden from those it is used against.

Which brings me to this WSJ op-ed Edgar published last week. Read more

Shut Down CyberCommand — US CyberCommander Keith Alexander Doesn’t Think It’s Important

Back on March 12 — in the same hearing where he lied to Ron Wyden about whether the intelligence community collects data on millions of Americans — James Clapper also implied that “cyber” was the biggest threat to the United States.

So when it comes to the distinct threat areas, our statement this year leads with cyber. And it’s hard to overemphasize its significance. Increasingly, state and non-state actors are gaining and using cyber expertise. They apply cyber techniques and capabilities to achieve strategic objectives by gathering sensitive information from public- and private sector entities, controlling the content and flow of information, and challenging perceived adversaries in cyberspace.

That was the big takeaway from Clapper’s Worldwide Threat Assessment. Not that he had lied to Wyden, but that that cyber had become a bigger threat than terrorism.

How strange, then, that the US CyberCommander (and Director of National Security) Keith Alexander mentioned cyber threats just once when he keynoted BlackHat the other day.

But this information and the way our country has put it together is something that we should also put forward as an example for the rest of the world, because what comes out is we’re collecting everything. That is not true. What we’re doing is for foreign intelligence purposes to go after counterterrorism, counterproliferation, cyberattacks. And it’s focused. [my emphasis]

That was it.

The sole mention of the threat his boss had suggested was the biggest threat to the US less than 5 months earlier. “Counterterrorism, counterproliferation, cyberattacks. and it’s focused.”

The sole mention of the threat that his audience of computer security professionals are uniquely qualified to help with.

Compare that to his 27 mentions of “terror” (one — the one with the question mark — may have been a mistranscription):

terrorists … terrorism … terrorist attacks … counterterrorism … counterterrorism … terrorists … counterterrorism … terrorist organizations … terrorist activities … terrorist … terrorist activities … counterterrorism nexus … terrorist actor … terrorist? … terrorism … terrorist … terrorists … imminent terrorist attack … terrorist … terrorist-related actor … another terrorist … terrorist-related activities … terrorist activities … stopping terrorism … future terrorist attacks … terrorist plots … terrorist associations

That was the speech the US CyberCommander chose to deliver to one of the premiere group of cybersecurity professionals in the world.

Terror terror terror.

Sitting among you are people who mean us harm

… US CyberCommander Alexander also said.

Apparently, Alexander and Clapper’s previous intense focus on stopping hacktavists and cyberattacks and cybertheft and cyber espionage have all been preempted by the necessity of scaring people into accepting the various dragnets that NSA has deployed against Americans.

Which, I guess, shows us the true seriousness of the cyber threat.

To be fair to our CyberCommander, he told a slightly different story back on June 27, when he addressed the Armed Forces Communications and Electronics Association International Cyber Symposium.

Sure, he started by addressing Edwards Snowden’s leaks.

But then he talked about a debate he was prepared to have.

I do think it’s important to put that on the table, because as we go into cyber and look at–for cyber in the future, we’ve got to have this debate with our country. How are we going to protect the nation in cyberspace? And I think this is a debate that is going to have all the key elements of the executive branch–that’s DHS, FBI, DOD, Cyber Command, NSA and other partners–with our allies and with industry. We’ve got to figure how we’re going to work together.

How are we going to protect the nation in cyberspace? he asked a bunch of Military Intelligence Industrial Complex types.

At his cyber speech, Alexander also described his plan to build, train, and field one-third of the force by September 30 — something you might think he would have mentioned at BlackHat.

Not a hint of that.

Our US CyberCommander said — to a bunch of industry types — that we need to have a debate about how to protect the nation in cyberspace.

But then, a month later, with the group who are probably most fit to debate him on precisely those issues, he was all but silent.

Just terror terror terror.

“Congress Was Fully Briefed” … at the Last Minute

On September 30, 2009, Silvestre Reyes, then the Chair of the House Intelligence Committee, requested that DOJ provide a description of the Section 215 metadata dragnet program.

Reyes sent that request 8 days after September 22, when Patrick Leahy introduced the Senate’s version of PATRIOT Act reauthorization in the Senate, arguing for new limits on both Section 215 and the Pen Register/Trap and Trace authorities then being used to collect Internet metadata.

This bill adopts the reasonable constitutional standard that I supported in 2006 for 215 orders. First, it would eliminate the presumption in favor of the government’s assertion that the records it is seeking are relevant to its investigation. This bill would require the Government to make a connection between the records or other things it seeks and a suspected terrorist or spy before it is able to obtain confidential records such as library, medical and telephone records. Section 215 orders for tangible things permit the Government to collect an even broader scope of information than NSLs. For that reason, it is critical that the Government show that the records it seeks are both relevant to an investigation and connected to at least a suspected terrorist or spy.

This bill would also establish more meaningful judicial review of Section 215 orders. First, it repeals the requirement in current law that requires a recipient of a Section 215 nondisclosure order to wait for a full year before challenging that gag order. There is no justification for this mandatory waiting period for judicial review, and this bill eliminates it. It also repeals a provision added to the law in 2006 stating that a conclusive presumption in favor of the Government shall apply where a high level official certifies that disclosure of the order for tangible things would endanger national security or interfere with diplomatic relations. These restraints on meaningful judicial review are unfair, unjustified, and completely unacceptable. I fought hard to keep these two provisions out of the 2006 reauthorization, but the Republican majority at that time insisted they be included.

This bill will strengthen court oversight of Section 215 orders by requiring court oversight of minimization procedures when information concerning a U.S. person is acquired, retained, or disseminated. Requiring FISA Court approval of minimization procedures would simply bring Section 215 orders in line with other FISA authorities–such as wiretaps, physical searches, and pen register and trap and trace devices–that already require FISA court approval of minimization procedures. This is another common sense modification to the law that was drafted in consultation with Senators FEINGOLD and DURBIN. If we are to allow personal information to be collected in secret, the court must be more involved in making sure the authorities are used responsibly and that Americans’ information and personal privacy are protected.

Finally, this bill addresses concerns over the use of pen register or trap and trace devices “pen/trap”. The bill raises the standard for pen/trap in the same manner as it raises the standard for Section 215 orders. The Government would be required to show that the information it seeks is both relevant to an investigation and connected to a suspected terrorist or spy. This section also requires court review of minimization procedures, which are not required under current law, and adds an Inspector General audit of the use of pen/trap that is modeled on the the audits of Section 215 orders and NSLs.

On October 8, the Senate Judiciary Committee started consideration of the PATRIOT Reauthorization. On October 13, a substitute bill was adopted, gutting some of these additional limits on Section 215 authority. On October 28, that bill was reported to the Senate, with a report including minority views, including a complaint from Russ Feingold, Dick Durbin, and Arlen Specter that Leahy’s new limits on Section 215 authority weren’t passed.

New sunsets, audits, reporting requirements and executive branch procedures are positive reforms, but ultimately Congress must set the rules for when the Executive Branch can use investigative tools that have implications for Americans’ privacy rights. That is why we were disappointed that the Committee rejected amendments that would have imposed stricter statutory standards for obtaining any tangible things under Section 215 of the USA PATRIOT Act and for obtaining sensitive personal records under the NSL statutes–standards that would have protected against government fishing expeditions.

The standard under current law for both authorities is mere relevance to an investigation to protect against international terrorism or clandestine intelligence activities. That is a very broad standard, which does not provide, in our view, adequate protection against unnecessary, overbroad, or otherwise inappropriate demands for records.

When the Senate Judiciary Committee passed this bill out of committee, DOJ had not yet responded to Reyes’ request.

It was only around this period that the House started on its version of bill. John Conyers submitted it on October 20, and it was reported to the House Judiciary, Intelligence, and Financial Services Committees.

On November 5, the Judiciary Committee marked up and passed the bill. On that day — 36 days after Reyes had made his request — DOJ had still not responded to Reyes’ request.

It was not until December 14, 75 days after Reyes had submitted a request tied to critical legislation, that DOJ responded to Reyes’ request.

Thank you for your letter of September 30, 2009, requesting that the Department of Justice provide a document to the House Permanent Select Committee on Intelligence (HPSCI) that describes the bulk collection program conducted under Section 215 00 the “business records” provision of the Foreign Intelligence Surveillance Act (FISA).

DOJ introduced their letter, acknowledging neither the delay nor that two crucial committees had already voted out their bill in the interim. It continued,

We agree that it is important that all Members of Congress have access to information about this program, as well as a similar bulk collection program conducted under the pen register/trap and trace authority of FISA, when considering reauthorization of the expiring USA PATRIOT Act provisions.

Four pages into the attached document, DOJ admits that the Judiciary Committees — both of which had passed out the bill by this point — had not been briefed on the compliance problems described in the document.

The cover letter to the document indicates its intent “to provide the same document to the Senate Select Committee on Intelligence (SSCI) under similar conductions [in which the intelligence committee staffers must watch as members of Congress read the document in Intelligence Committee chambers], so it may be made available to the Members of the Senate.” But unlike the 2011 version, the 2009 document includes no proof that it was actually provided.

So 75 days after the House Intelligence Chair asked for a document that even DOJ claimed to agree was important for all members of Congress to have access to, DOJ finally provided it.

Read more

Michael Hayden, after Escaping Justice, Calls for Other Criminals to Be Made Examples

In an article on the Bradley Manning and Edward Snowden leaks, Washington Times quotes former NSA and CIA Director Michael Hayden this way: (h/t Matthew Aid)

It is “really important that the government respond well to this particular abuse,” he said of the Snowden and Manning cases.

[snip]

Mr. Hayden said he does not endorse some forms of exemplary punishment, “what the French call ‘for the encouragement of others.’”

But if hackers “have this attachment to transparency, perhaps the intelligence community is not where they should be,” he said, adding that the government needs to use the Snowden case to show that it is “serious.”

The former director of both the NSA and CIA said it is “very appropriate” for the U.S. government to pursue Mr. Snowden relentlessly and make his fate an issue in its bilateral relations with any nation that harbors him.

“We need to recruit from this culture,” he said. “Members of this culture, when they embrace government service with its necessary requirements of secrecy, need to be shown the government is quite serious about those necessary requirements.”

To WT’s credit, they do acknowledge that Hayden currently works for the Chertoff Group, one of the most corrupt profiteers off the war on terror.

But it doesn’t mention that Hayden’s the guy who decided it’d be a good idea to outsource NSA’s IT to companies like Booz Allen Hamilton so as to get more people “from this culture” working on NSA’s programs in the first place.

More importantly, it doesn’t mention that the 2009 Draft NSA IG Report that Snowden leaked provided new details about how Hayden made the final decision to continue the illegal wiretapping program even after DOJ’s top lawyers judged it illegal in 2004.

Edward Snowden leaked new details of Michael Hayden’s crime. He leaked new details of how Hayden betrayed the public trust in probably more serious fashion than Edward Snowden has.

And yet somehow Michael Hayden continues to be the primary go-to guy to talk about how serious this leak is? Michael Hayden gets to opine about how Edward Snowden should be made an example of?

Now, perhaps applying Hayden’s own logic would have been valuable years ago. Perhaps if Hayden had been made an example of himself, after he betrayed the public trust and broke the law, we not only would have more trust in the NSA, but we have a better understanding of what NSA did then and is doing now.

But since we didn’t, Michael Hayden remains one primary exhibit about why Snowden’s leaks, however illegal, have a certain legitimacy.

Because so long as Michael Hayden runs free, we know the government refuses to police itself on these issues.

It’s all very rich for one criminal to call for another criminal to be made an example of. But the responsible press should at least point out how ironic it is that the criminal who escaped justice insists those who have exposed new details of his own crime get the full brunt of it.

Big-Footing Superpower Status Also about Legally Immune Commander in Chief(s)

In a piece making the obvious comparison between fugitive spy Robert Seldon Lady and accused Espionage fugitive Edward Snowden, Tom Englehardt writes off the press silence about presumed American assistance to Lady in fleeing an international arrest warrant as the reality of being the sole superpower.

It’s no less a self-evident truth in Washington that Robert Seldon Lady must be protected from the long (Italian) arm of the law, that he is a patriot who did his duty, that it is the job of the U.S. government to keep him safe and never allow him to be prosecuted, just as it is the job of that government to protect, not prosecute>, CIA torturers who took part in George W. Bush’s Global War on Terror.

So there are two men, both of whom, Washington is convinced, must be brought in: one to face “justice,” one to escape it.  And all of this is a given, nothing that needs to be explained or justified to anyone anywhere, not even by a Constitutional law professor president.  (Of course, if someone had been accused of kidnapping and rendering an American Christian fundamentalist preacher and terror suspect off the streets of Milan to Moscow or Tehran or Beijing, it would no less self-evidently be a different matter.)

Don’t make the mistake, however, of comparing Washington’s positions on Snowden and Lady and labeling the Obama administration’s words and actions “hypocrisy.”  There’s no hypocrisy involved.  This is simply the living definition of what it means to exist in a one-superpower world for the first time in history.  For Washington, the essential rule of thumb goes something like this: we do what we want; we get to say what we want about what we do; and U.N. ambassadorial nominee Samantha Powers then gets to lecture the world on human rights and oppression.

This version of how it all works is so much the norm in Washington that few there are likely to see any contradiction at all between the Obama administration’s approaches to Snowden and Lady, nor evidently does the Washington media.

Englehardt doesn’t mention Sabrina De Sousa’s claims about the CIA’s kidnapping of Osama Mustapha Hassan Nasr (Abu Omar) and Italy’s subsequent prosecution of those involved. Adding her in the mix makes it clear how closely immunity for the Commander in Chief and his top aides is part of this superpower big-footing.

De Sousa, who says she served as an interpreter for the kidnappers on a planning trip, but not in the operation itself, was convicted and sentenced in Italy in part because the government refused to invoke diplomatic immunity (she admits she worked for CIA, but was under official cover).

The kidnapping did not meet US standards for renditions, but Station Chief Jeff Castelli wanted to do one anyway, and pushed through its approval even without Italian cooperation.

Despite concerns with the strength of Castelli’s case, CIA headquarters still agreed to move forward and seek Rice’s approval, De Sousa said. She recalled reading a cable from late 2002 that reported that Rice was worried about whether CIA personnel “would go to jail” if they were caught.

In response, she said, Castelli wrote that any CIA personnel who were caught would just be expelled from Italy “and SISMi will bail everyone out.”

Of her CIA superiors, De Sousa said, “They knew this (the rendition) was bullshit, but they were just allowing it. These guys approved it based on what Castelli was saying even though they knew it never met the threshold for rendition.”

Asked which agency officials would have been responsible for reviewing the operation and agreeing to ask Rice for Bush’s authorization, De Sousa said they would have included Tenet; Tyler Drumheller, who ran the CIA’s European operations; former CIA Director of Operations James Pavitt and his then-deputy, Stephen Kappes; Jose Rodriguez, then the head of the CIA’s Counterterrorism Center, and former acting CIA General Counsel John Rizzo.

De Sousa says the Italians and Americans colluded to protect the highers up, while prosecuting her and other lower level people.

De Sousa accused Italian leaders of colluding with the United States to shield Bush, Rice, Tenet and senior CIA aides by declining to prosecute them or even demanding that Washington publicly admit to staging the abduction.

Calling the operation unjustified and illegal, De Sousa said Italy and the United States cooperated in “scape-goating a bunch of people . . . while the ones who approved this stupid rendition are all free.”

Note, she doesn’t say this, but some of the people in the chain of command for this kidnapping — in both the US and Italy — were also involved in planting the Niger forgeries used to start the Iraq War. And, of course, a number of the Americans were involved in the torture program and its cover-up.

Since then, De Sousa has used all legal avenues to blow the whistle on this kidnapping.

De Sousa said that she has tried for years to report what she said was the baseless case for Nasr’s abduction and her shoddy treatment by the CIA and two administrations.

Her pleas and letters, however, were ignored by successive U.S. intelligence leaders, the CIA inspector general’s office, members and staff of the House and Senate intelligence committees, Rice, former Secretary of State Hillary Clinton and Attorney General Eric Holder, said De Sousa.

Assuming De Sousa’s story is correct (and an anonymous source backs its general outlines), then it adds one more reason why Lady quietly got to return to the US while Snowden will be loudly chased around the world.

What Americans are buying off on — along with superpower status that may defund schools in exchange for empire — with their silence about the disparate treatment of Sady and Snowden, then, is not just the ego thrill of living in a thus far unrivaled state.

It’s also, implicitly, the kind of immunity for the Commander in Chief and executive branch that shouldn’t exist in democratic states.

Well, at Least DOJ Promised Not to Mine Journalists’ Metadata Going Forward

When I read this passage from DOJ’s new News Media Policy, it caused me as much concern as relief.

The Department’s policies will be revised to provide formal safeguards regarding the proper use and handling of communications records of members of the news media. Among other things, the revisions will provide that with respect to information obtained pursuant to the Department’s news media policy: (i) access to records will be limited to Department personnel who are working on the investigation and have a need to know the information; (ii) the records will be used solely in connection with the investigation and related judicial proceedings; (iii) the records will not be shared with any other organization or individual inside or outside of the government, except as part of the investigation or as required in the course of judicial proceedings; and(iv) at the conclusion of all proceedings related to or arising from the investigation, other than information disclosed in the course of judicial proceedings or as required by law, only one copy of records will be maintained in a secure, segregated repository that is not searchable.

It is nice for the subset of journalists treated as members of news media whose calls get treated under these new policies and not — as still seems possible — under the apparently more permissive guidelines in the FBI’s Domestic Investigations and Operations Guide that when their call and other business records are collected, some of that information will ultimately be segregated in a non-searchable collection. Though why not destroy it entirely, given that the information used for the investigation and court proceedings will not be segregated?

Moreover, this passage represents a revision of previous existing policy.

Which means data from members of the news media may not have been segregated in the past.

When you consider that one of the abuses that led to these new policies included the collection of 20 phone lines worth of data from the AP — far, far more than would be warranted by the investigation at hand — it raises the possibility that DOJ used to do more with the data it had grabbed from journalists than just try to find isolated sources.

Like the two to three hop analysis they conduct on the Section 215 dragnet data.

It’s with that in mind that I’ve been reading the reports that Kiwi troops were wandering around Kabul with records of McClatchy freelancer Jon Stephenson’s phone metadata.

The Sunday Star-Times has learned that New Zealand Defence Force personnel had copies of intercepted phone “metadata” for Stephenson, the type of intelligence publicised by US intelligence whistleblower Edward Snowden. The intelligence reports showed who Stephenson had phoned and then who those people had phoned, creating what the sources called a “tree” of the journalist’s associates.

New Zealand SAS troops in Kabul had access to the reports and were using them in active investigations into Stephenson.

The sources believed the phone monitoring was being done to try to identify Stephenson’s journalistic contacts and sources. They drew a picture of a metadata tree the Defence Force had obtained, which included Stephenson and named contacts in the Afghan government and military.

The sources who described the monitoring of Stephenson’s phone calls in Afghanistan said that the NZSIS has an officer based in Kabul who was known to be involved in the Stephenson investigations.

Last year, when this happened, Stephenson was on the Green-on-Blue beat, He published a story that a massacre in Pashtun lands had been retaliation for the killing of Taliban. He reported on another NATO massacre of civilians. He reported that a minister accused of torture and other abuses would be named Hamid Karzai’s intelligence chief. Earlier last year he had reported on the negotiations over prisoner transfers from the US to Afghan custody.

Now, the original report made a both a credibility and factual error when it said Stephenson’s metadata had been “intercepted.” That has provided the Kiwi military with a talking point on which to hang a non-denial denial — a point Jonathan Landay notes in his coverage of the claims.

Maj. Gen. Tim Keating, the acting chief of New Zealand’s military, said in a statement that no military personnel had undertaken “unlawful interception of private communications.”

“I have asked the officers responsible for our operations in Afghanistan whether they have conducted monitoring of Mr Stephenson . . . and they have assured me that they have not.”

The statement, however, did not address whether metadata, which includes the location from where a call is made, the number and location of the person who is being called and the duration of the call, was collected for Stephenson’s phones. Such data are generally considered business records of a cell phone provider and are obtained without intercepting or real-time monitoring of calls. In the United States, for example, the Foreign Intelligence Surveillance Court has ordered Verizon to deliver such records of all its customers to the National Security Agency on a daily basis.

While under contract to McClatchy, Stephenson used McClatchy cell phones and was in frequent contact with McClatchy editors and other reporters and correspondents. [my emphasis]

Indeed, higher ranking New Zealand politicians are trying to insinuate that Stephenson’s call records would only be collected if he was communicating with terrorists — even while admitting the government did have a document treating investigative journalists like terrorists.

Prime Minister John Key said it’s theoretically possible that reporters could get caught in surveillance nets when the U.S. spies on enemy combatants.

[snip]

Also Monday, New Zealand Defense Minister Jonathan Coleman acknowledged the existence of an embarrassing confidential order that lists investigative journalists alongside spies and terrorists as potential threats to New Zealand’s military. That document was leaked to Hager, who provided a copy to The Associated Press. Coleman said the order will be modified to remove references to journalists.

Finally, New Zealand officials seem to be getting close to blaming this on the US.

“The collection of metadata on behalf of the NZDF by the U.S. would not be a legitimate practice, when practiced on a New Zealand citizen,” Coleman said. “It wouldn’t be something I would support as the minister, and I’d be very concerned if that had actually been the case.”

Thus far, the coverage of the Stephenson tracking has focused on the Kiwi role in all of it. But as Landay notes, Stephenson would have been using McClatchy-provided cell phones at the time, suggesting the US got the records themselves, not by intercepting anything, but simply by asking the carrier, as they did with the AP.

Ultimately, no one is issuing a direct denial that some entity tied to ISAF — whether that be American or New Zealand forces — collected the phone records of a journalist reporting for a US-based outlet to try to identify his non-friendly sources.

So what other journalists have US allies likened to terrorists because they actually reported using both friendly and unfriendly sources?

Espionage: Now, with No Damage Envisioned

A recently unsealed decision from Colleen Kollar-Kotelly just changed the interpretation of the Espionage Act for Washington DC to cover leaks that wouldn’t even harm the US.

Judge Colleen Kollar-Kotelly ruled that the prosecution in the pending case of former State Department contractor Stephen Kim need not show that the information he allegedly leaked could damage U.S. national security or benefit a foreign power, even potentially.  Her opinion was a departure from a 30 year old ruling in the case of U.S. v. Morison, which held that the government must show that the leak was potentially damaging to the U.S. or beneficial to an adversary.  (In that case, Samuel L. Morison was convicted of unauthorized disclosure of classified intelligence satellite photographs, which he provided to Jane’s Defence Weekly. He was later pardoned by President Clinton.)

“The Court declines to adopt the Morison court’s construction of information relating to the ‘national defense’ insofar as it requires the Government to show that disclosure of the information would be potentially damaging to the United States or useful to an enemy of the United States,” Judge Kollar-Kotelly wrote in a May 30 opinion. The opinion was redacted and unsealed (in partially illegible form) last week.

The prosecution must still show that the defendant “reasonably believed” that the information “could be used to the injury of the United States or to the advantage of a foreign nation” and that the defendant “willfully” communicated it to an unauthorized person.  But it would no longer be necessary for prosecutors to demonstrate that the information itself could potentially damage national security or benefit an adversary.

Imagine how this ruling could empower prosecutors in the AP UndieBomb 2.0 investigation, in which the AP’s story reported only that the US had thwarted an UndieBomb plot. They didn’t report it until after the White House said they had cleared up a sensitive issue relating to the plot (which in practice ended up being the drone death of Fahd al-Quso).

This would make it easier for the government to prosecute AP’s sources for leaking information that even the government had suggested, to the AP, wouldn’t harm US interests.

And of course, all that builds on top of the now routine treatment of leaks to the press as Espionage, something fairly unusual before the Obama Administration.

Frightening.

Candidate Obama’s Tribute to “Courage and Patriotism” of Whistleblowers Disappears 2 Days after First Snowden Revelations

Sunlight Foundation discovers the Obama Administration has removed access to his 2008 campaign promises from the White House website. It suggests one of the promises Obama may want to hide has to do with his support for whistleblowers.

While front splash page for for Change.gov has linked to the main White House website for years, until recently, you could still continue on to see the materials and agenda laid out by the administration. This was a particularly helpful resource for those looking to compare Obama’s performance in office against his vision for reform, laid out in detail on Change.gov.

According to the Internet Archive, the last time that content (beyond the splash page) was available was June 8th — last month.

Why the change?

Here’s one possibility, from the administration’s ethics agenda:

Protect Whistleblowers: Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled. We need to empower federal employees as watchdogs of wrongdoing and partners in performance. Barack Obama will strengthen whistleblower laws to protect federal workers who expose waste, fraud, and abuse of authority in government. Obama will ensure that federal agencies expedite the process for reviewing whistleblower claims and whistleblowers have full access to courts and due process.

It may be that Obama’s description of the importance of whistleblowers went from being an artifact of his campaign to a political liability.

To be fair, Obama did extend whistleblower protection beyond that of the law last year — though he did it largely in secret.

Of course, that came at the same time as Obama rolled out an Insider Threat Detection system that seems designed to discourage anyone from speaking out … about anything.

And then there’s the issue of all the whistleblower prosecutions.

But if Obama did hide his campaign promises specifically to hide this tribute to the “courage and patriotism” of whistleblowers, then I find the timing particularly interesting. June 8 was just two days after the first Edward Snowden release (at a time, moreover, when the Guardian had reported only issues that went to lies James Clapper and Keith Alexander had told, making Snowden’s claim to be unable to go through regular channels quite credible).

Mind you, Obama could be hiding other promises. I still think promises about mortgages and homes are his biggest failure.

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