Home Affairs Committee MPs Worry about Minimization Procedures — of Newspaper, not Spy Service

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I just finished watching Guardian editor Alan Rusbridger’s testimony before the House of Commons Home Affairs Committee, which the Guardian live-blogged here. My overall impression is that, whatever else has happened to America’s former colonial overlords, Brits still maintain the ability to be utter blowhards while maintaining a facade of politeness far better than, say, our blowhards on the House Intelligence Committee.

Those who really wanted to attack Rusbridger and the Guardian, though, appear to have no sense of irony.

They latched not primarily on the Guardian’s publication of news about the NSA-GCHQ dragnet, which several MPs agreed showed the spy services had too few limits. Rather, MPs like Keith Vaz and Mark Reckless suggested Rusbridger had broken the law by sending 50,000 files to the NYT without first redacting the names of GCHQ’s spies. From the Guardian liveblog:

Has he communicated information contrary to the Terrorism Act?

Rusbridger says the government has known for many months that the material Snowden leaked included names of security people at the NSA andGCHQ and he told the cabinet secretary in July that the Guardian was sharing with the NYT. Self-evidently they work in New York. Rusbridger holds up the book Spycatcher by Peter Wright, a former MI5 agent, and recalls the ridiculous sight of the UK trying to stop publication of something being published elsewhere in the world. That was the point of giving the files to the NYT – to avoid a similar situation.

You have I think admitted a criminal offence there, Reckless says. Should Rushbridger be prosecuted?

Admittedly, this was mostly an attempt to intimidate Rusbridger (and he said as much).

But it was also a query about whether the Guardian used adequate minimization procedures before sharing bulk data collected in the course of reporting.

To one question, Rusbridger admitted he hadn’t gone through all 50,000 documents before handing them to the NYT, but he knew the NYT would also protect the names of any spies.

He effectively was taking precisely the same stance on minimization that GCHQ and NSA adopt with their bulk collection. The services share unminimized bulk collected data back and forth with each other. They agree (though sometimes let each other ignore that agreement) to minimize the data of British or US subjects before using that data in finished intelligence reports, the equivalent of a newspaper’s publication.

Pass on the data in bulk, with the understanding none of it will be published with the legally protected identities unmasked (unless needed to understand the intelligence, the spy services allow). That is the practice used by both the Guardian with NYT and GCHQ with NSA.

Spy overseers have repeatedly pointed to minimization procedures as an adequate protection for the privacy of their citizens, to hide information unless it was necessary. Usually, they ignore the danger of having those identities tied to the data in secret archives somewhere.

But at least MPs Vaz and Reckless admit, without meaning to do so, that such minimization procedures might not adequately protect sensitive identities.

But as Rusbridger quipped (and has quipped, elsewhere), the only one who is known to have lost control of data here was the NSA, not the newspapers.

Bob Woodward and Monopoly Journalism

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There’s an absurd debate going on about whether, by hiring Glenn Greenwald and Laura Poitras (who are the only journalists who have a full set of the documents Edward Snowden leaked), Pierre Omidyar has obtained a “monopoly” over NSA’s secrets. As to the substance of the debate: if Omidyar did set out to monopolize the NSA’s secrets, he’s a failure of a billionaire monopolist, given that since he and Greenwald first joined forces, a slew of other outlets have been publishing Omidyar’s monopoly with no apparent compensation to him.

Bad billionaire monopolist!

That said, I’m rather stunned that Bob Woodward — both his history as the previously quintessential “journalist” and his comments about the Snowden leaks specifically — has only received passing mention in this debate. Greenwald mentioned him to deflect claims that his practice with Snowden was any different from what Woodward has done across his career.

Or let’s take the revered-in-DC Bob Woodward, who has become America’s richest journalist by writing book after book over the last decade that has spilled many of America’s most sensitive secrets fed to him by top US government officials. In fact, his books are so filled withvital and sensitive secrets that Osama bin Laden personally recommended that they be read. Shall we accuse Woodward of selling US secrets to his publisher and profiteering off of them, and suggest he be prosecuted?

But what Woodward does is different, and he explicitly stated it would have been different if he were sitting on Snowden’s stash.

I would have said to [Snowden], let’s not reveal who you are. Let’s make you a protected source, and give me time with this data and let’s sort it out and present it in a coherent way. I think people are confused about whether it’s illegal, whether it’s bad, whether it’s bad policy.

That is, it’s not just that (as Dave Weinberger observes) there are many options besides Greenwald and Poitras these days.

Before the Web, the charge that Greenwald is monopolizing the information wouldn’t even have made sense because there wasn’t an alternative. Yes, he might have turned the entire cache over to The Guardian or the New York Times, but then would those newspapers look like monopolists? No, they’d look like journalists, like stewards. Now there are options. Snowden could have posted the cache openly on a Web site. He could have created a torrent so that they circulate forever. He could have given them to Wikileaks curate. He could have sent them to 100 newspapers simultaneously. He could have posted them in encrypted form and have given the key to the Dalai Lama or Jon Stewart. There are no end of options.

But Snowden didn’t. Snowden wanted the information curated, and redacted when appropriate. He trusted his hand-picked journalists more than any newspaper to figure out what “appropriate” means.

It’s that the notion of stewardship has changed — which, if Woodward is the model, previously meant a former intelligence operative would sit on the information for years, hiding both the information and the source, long enough for him to expose selected details through the actions of Important People, told in an omniscient voice.

Curiously, both Weinberger and Woodward talk of confusion not having this omniscient narrator causes.

That the charge that Glenn Greenwald is monopolizing or privatizing the Snowden information is even comprehensible to us is evidence of just how thoroughly the Web is changing our defaults and our concepts. Many of our core models are broken. We are confused.

Woodward believes he should have had the opportunity to tell us what to think about the dragnet. Greenwald’s critics suspect Omidyar plans to tell us what to think about it (or keep it secret).

But the sheer confusion suggests any monopoly has already been thwarted.

8 Years Later, NSA Still Using Same PR Strategy to Hide Illegal Wiretap Program

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Between these two posts (one, two), I’ve shown that the Executive Branch never stopped illegally wiretapping Americans, even after the worst part of it got “shut down” after the March 2004 hospital confrontation. Instead, they got FISC to approve collection with certain rules, then violated the rules consistently. When that scheme was exposed with the transition between the Bush and Obama Administrations, the Executive adopted two new strategies to hide the illegal wiretapping. First, simply not counting how many Americans they were illegally wiretapping, thus avoiding explicit violation of 50 USC 1809(a)(2). And, starting just as the Executive was confessing to its illegal wiretapping, moving — and expanding it — overseas. Given that they’re collecting content, that is a violation in spirit, at least, of Section 704 of FISA Amendments Act, which requires a warrant for wiretapping an American overseas (the government probably says this doesn’t apply because GCHQ does much of the wiretapping).

One big discovery the Snowden leaks have shown us, then, is that the government has never really stopped Bush’s illegal wiretapping program.

That actually shows in the PR response the government has adopted, which has consisted of an affirmative and a negative approach. The affirmative approach emphasizes the programs — PATRIOT Act Section 215 and Section 702 of FAA — that paralleled the illegal wiretap program (I’m not conceding either is constitutional, but only the upstream collection under 702 has been deemed an explicit violation of the law). This has allowed the government to release a blizzard of documents — Transparency!™ — that reveals some shocking disclosures, without revealing the bigger illegal programs. But note how, when the revelations touched on the Internet dragnet (which should be no more revelatory than the phone dragnet), ODNI tried to obscure basic details by hiding dates (even if they left those dates in one URL).

Meanwhile, the I Con has invested energy in trying to undermine every story that touches on the larger illegal wiretapping programs. Read more →

The Second Page, Glenn Greenwald Edition

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On the first page of a WaPo story on an Eric Holder speech, it says this.

Holder indicated that the Justice Department is not planning to prosecute former Guardian reporter Glenn Greenwald, one of the journalists who received documents from Snowden and has written a series of stories based on the leaked material. Greenwald, an American citizen who lives in Brazil, has said he is reluctant to come to the U.S. because he fears detention and possible prosecution.

Based on that, I think, a slew of journalists are reporting that DOJ will not prosecute Glenn Greenwald.

Then click the link:

 

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And here’s what it says:

“Unless information that has not come to my attention is presented to me, what I have indicated in my testimony before Congress is that any journalist who’s engaged in true journalistic activities is not going to be prosecuted by this Justice Department,” Holder said.

“I certainly don’t agree with what Greenwald has done,” Holder said. “In some ways, he blurs the line between advocate and journalist. But on the basis of what I know now, I’m not sure there is a basis for prosecution of Greenwald.” [my emphasis]

In this passage, which is admittedly not a transcript, Holder seems to distinguish between “true journalistic activities” and “advocate.”

If that is, in fact, fair syntax, then it suggests something troubling. Not just that Holder remains open to be persuaded that journalist Glenn Greenwald might be prosecutable. But that the “line” is drawn where “journalism” turns to “advocacy.”

Damn. I hope he tells our founding fathers, because it sounds like he might well have prosecuted a sizable chunk of those advocate journalists.

 

Drone Strikes on the NYT’s Claim to Have Improved

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NYT Public Editor Margaret Sullivan attempts to tell the story of why the NYT held the illegal wiretap story before the 2004 election. Amid comments from the main players, she effectively admits that the NYT only published in 2005 because James Risen’s A State of War was about to come out.

Michael V. Hayden, who was the director of the N.S.A. and later the director of the Central Intelligence Agency, told me in an interview that he argued strenuously against publication, right up until the moment when The Times decided to go ahead. His rationale: “That this effort was designed to intercept threatening communication” and to prevent another terrorist attack.

In the end, The Times published the story with a couple of guns held to its head: First, the knowledge that the information in the article was also contained in a book by Mr. Risen, “State of War,” whose publication date was bearing down like a freight train. Second, at the end, the word of a possible injunction against publishing, Mr. Risen said, provided a final push: “It was like a lightning bolt.” (Mr. Hayden said that would not have happened: “Prior restraint was never in the cards.”)

Like a game of chicken played on a high wire, it remains “the most stressful and traumatic time of my life,” Mr. Risen recalls. Although The Times later said that further reporting strengthened the story enough to justify publishing it, few doubt that Mr. Risen’s book was what took an essentially dead story and revived it in late 2005. “Jim’s book was the driving force,” Mr. Lichtblau said.

Sullivan doesn’t mention another part of the story: that shortly after the NYT accused Risen of violating their ethics policy because he did not tell the NYT his book covered topics he had reported on for the paper — not just the illegal wiretap program, but also MERLIN, the attempt to stall the Iranian nuclear program by dealing them faulty blueprints. He had apparently told them he was writing a book on George Tenet.

When that news broke in early 2006, I concluded that Risen probably used the threat of scooping the NYT, and a nondisclosure agreement, to actually get the illegal wiretap program into the paper.

Let’s assume for a moment I’m correct in understanding the NYT spokesperson to be suggesting that Risen violated those ethical guidelines by publishing this book. Here’s the scenario such an accusation seems to spell out. (Speculation alert.) Risen attempted to publish both the NSA wiretap story and the Iran nuclear bomb story in 2004. NYT editors refused both stories. Then, in 2005 Risen takes book leave (and I should say that the NYT’s book leave policy is one of the best benefits it offers its writers), misleading his editors about the content of the book. Once he returns, his editors hear rumors that the book actually features the NSA wiretap story. Only in the face of imminent publication of the book do they reconsider publishing the wiretap story. Read more →

The Institutional Subjectivity of the White Affluent US Nation

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In a really worthy read, Bill Keller and Glenn Greenwald debate the future of journalism.

Sadly, however, in his first response to Keller’s self-delusion of belonging to the journalistic tradition of “newspapers that put a premium on aggressive but impartial reporting[] that expect reporters and editors to keep their opinions to themselves,” Greenwald seemed to cede that such journalism constitutes, “concealing one’s subjective perspectives.” That permitted Keller to continue his self-delusion that his journalism — at both the level of reporter and that reporter’s larger institution — achieved that silence about opinions until they started fighting about the role of national allegiance and national security.

That argument developed this way.

Greenwald: Former Bush D.O.J. lawyer Jack Goldsmith in 2011 praised what he called “the patriotism of the American press,” meaning their allegiance to protecting the interests and policies of the U.S. government. That may (or may not) be a noble thing to do, but it most definitely is not objective: it is quite subjective and classically “activist.”

[snip]

Keller: If Jack Goldsmith, the former Bush administration lawyer, had praised the American press for, in your words, “their allegiance to protecting the interests and policies of the U.S. government” then I would strongly disagree with him. We have published many stories that challenged the policies and professed interests of the government. But that’s not quite what Goldsmith says. He says that The Times and other major news outlets give serious consideration to arguments that publishing something will endanger national security — that is, might get someone killed.

For what it’s worth, I think Keller is clinging to the first thing Goldsmith said,

Glenn Greenwald complained that “the NYT knew about Davis’ work for the CIA (and Blackwater) but concealed it because the U.S. Government told it to” (my emphasis).  That is inaccurate.  The government asked the Times not to publish, as it often does, and the Times agreed to the request, which it sometimes does.  The final decision rested with the Times, which listens to the government’s claims about national security harm and risk to individual lives, and then makes its own decision.   The Timesdoes not, in my opinion, always exercise this discretion wisely.

And ignoring what Goldsmith went on to say,

I interviewed a dozen or so senior American national security journalists to get a sense of when and why they do or don’t publish national security secrets.  They gave me different answers, but they all agreed that they tried to avoid publishing information that harms U.S. national security with no corresponding public benefit. Some of them expressly ascribed this attitude to “patriotism” or “jingoism” or to being American citizens or working for American publications.   This sense of attachment to country is what leads the American press to worry about the implications for U.S. national security of publication, to seek the government’s input, to weigh these implications in the balance, and sometimes to self-censor.  (This is a natural and prudent attitude in a nation with the fewest legal restrictions in the world on the publication of national security secrets, but one abhorred by critics like Greewald.)  The Guardian, al Jazeera, and Wikileaks, by contrast, worry much less, if at all, about U.S. national security interests.

That is, Goldsmith noted both that at an institutional level US news outlets entertained the requests of the government, and that at a reportorial level, individuals prioritized US “national security.”

And from there, Keller repeatedly ignored or dismissed the efforts Greenwald, in his Edward Snowden reporting, or WikiLeaks, in its Cablegate publications, made to protect lives of individuals.

It’s not until Greenwald’s response where he gets to the crux of the issue.

As for taking into account dangers posed to innocent life before publishing: nobody disputes that journalists should do this. But I don’t give added weight to the lives of innocent Americans as compared to the lives of innocent non-Americans, nor would I feel any special fealty to the U.S. government as opposed to other governments when deciding what to publish. Read more →

Surveillance Logic: Snowden Is Bad because AQAP Conference Call Leak Was

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McClatchy did an interview with former national security official Ken Wainstein. He focuses on leaks, explaining how sometimes the “good leaks” don’t get prosecuted and admitting that overclassification is a problem.

But in response to McClatchy’s suggestion that Edward Snowden’s leaks are good, Wainstein responds in a bizarre fashion — by bringing up an entirely different leak.

Q: Do you weigh the public’s interest in the information that was leaked and whether it served the public good? For example, would you weigh whether Snowden’s actions triggered a broader debate about classified programs that the public should have known more about?

A: I think prosecutors would look at the intent of the leaker and what that person was intending to do.

But you wouldn’t have consensus that (the Snowden leak) was the best way to bring about this debate and that there hasn’t been damage. Just last week, for example, there was talk about how al Qaeda has shut down some of its communications because of aleak. I wouldn’t say it’s a given that it’s in the public interest that these disclosures are out there.

Wainstein’s talking, of course, of the NYT report that the public reports about the AQAP conference call story caused the terrorists to start using other communication methods.

But there are several problems with his claim. First, as I’ve pointed out, there’s a significant likelihood the leak in question came from AQAP sympathizers in the Yemeni government; in any case the leak was sourced to a broadly known fact in Yemen, not the US.

More importantly, the entire point of the story was that that AQAP leak had done more damage than all of Edward Snowden’s leaks. In fact, when criticized for the story, NYT’s editor pointed to that comparative fact as the entire point of the story.

He also said that many of the critics of the story “are missing part of the news here – that Snowden has not given away the store” in terms of harming national security or counterterrorism efforts.

The article, Mr. Hamilton said, “told an important and surprising story given the focus on Edward Snowden and the N.S.A. leaks. It had the kind of detail about terrorist operations that only reporters with long experience in national security coverage – and sources they can trust – can uncover.”

In other words, in response to a suggestion that Snowden’s leak did more harm than good, Wainstein points to a story that, even if the emphasis was wrong, pointed out that Snowden hadn’t done much damage.

Maybe Wainstein brought it up to suggest that McClatchy had better watch out; the AQAP story was also a McClatchy story. He’d be better off thanking McClatchy for making it clear someone in Yemen doesn’t keep our secrets very well.

But I guess that would ruin his entire scold about Edward Snowden.

David Kris: I’m Not Saying CIA Shoots Drones, Assassinates Americans, and Influences Media, But …

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In the passage of David Kris’ paper that address more public transparency, he included on paragraph on covert action.

For example, the covert action statute 221 could be interpreted and applied in ways that may be extraordinarily important, but about which very, very few Members of Congress, let alone the American People, ever learn.222 The statute defines covert action to exclude “traditional” military and law-enforcement activities,223 provides that a covert action finding “may not authorize any action that would violate the Constitution or any statute of the United States,”224 and specifically warns that “No covert action may be conducted which is intended to influence United States political processes, public opinion, policies, or media.”225 Without making any comment, express or implied, on any actual or hypothetical covert action, or even acknowledging that any covert action of any kind has ever actually taken place, it is quite obvious that each of those elements of the statute could raise enormously difficult and complex interpretive questions, some of which might affect many Americans.226 Yet it might be impossible, in many cases, to explain those interpretations without revealing the most sensitive classified information. 227 [60]

In other words, in a passage explaining the challenges and limits to making information available to the public, he implies (“without making any comment, express or implied, on any actual or hypothetical covert action, or even acknowledging that any covert action of any kind has ever actually taken place”) that CIA may have:

And while he very studiously avoids confirming these things that have all been confirmed elsewhere, his argument about the transparency of the matter has more to do with our treatment of covert ops than with transparency per se.

That is, it’s not so much that the US doesn’t and can’t know about the drone strikes, US person assassinations, and really bad propaganda the CIA has been involved in. It’s just that the government keeps the law on covert operations on the book, pretending it abides by it, while telling just the Gang of Four it doesn’t.

That is, it’s not about transparency, it’s about the legal sanction to lie about actions that everyone knows the Executive undertakes.

None of that is shocking (though it’s an interesting argument). But it’d be nice if Kris wanted to hint whether these covert actions included more politicized spying on American people.

Thanks for Keeping Us Independent

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I’ve been remiss.

I had plans to send out a thank you note to all the people who donated during our fundraiser. But then a family issue came up and I haven’t gotten it done yet.

Nevertheless, this piece of news made me realize I need to issue a heartfelt thank you immediately.

I am very excited to announce that tomorrow, we are launching a project with our friends at the New Republic to bring Lawfare content and writers to the New Republic‘s web site. Astute readers may have noticed that we have been sharing a certain amount of content with the New Republic over the past few weeks. The partnership aims to build on this relationship, situating Lawfare‘s expertise in national security legal issues within the New Republic‘s broader policy focus.

We are calling the project, which is being sponsored by the Northrup Grumman Corp., “Security States.” [my emphasis]

Some national security commentary gets sponsored by a drone manufacturers and spy companies (the announcement also led me to realize that Brookings itself gets $1 to $2.5 million a year from Booz h/t Katherine Hawkins).

Ours gets sponsored by you.

To all of you who help keep us independent, you have my profuse gratitude.

The Kiddie Porn and the UndieBomb

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Screen shot 2013-09-26 at 1.22.11 PMI was at a funeral Monday and Tuesday. So when I heard the FBI had busted the guy who leaked the UndieBomb 2.0 story, I assumed they had finally arrested John Brennan.

But, as bmaz emphasized in his post on Donald Sachtleben’s plea agreement, there’s no hint of prosecuting Brennan, who leaked Top Secret details about the British/Saudi double agent into AQAP, even while they’re imprisoning Donald Sachtleben, who is only accused of leaking details he knew to be Secret.

A law enforcement official indicated that the case has not been officially closed but the charges against Sachtleben are the only ones expected.

(Sure, the evidence that Sachtleben was involved with kiddie porn seems solid, but then Brennan drone-killed children, so he’s not above reproach for his treatment of children either.)

But that is by no means the weirdest thing about the government’s treatment of the UndieBomb 2.0 leak investigation.

The entire premise of the FBI narrative is that they exercised greater care with a kiddie porn accusee they had dead to rights than they did the 100 or so AP reporters who got sucked up in their overbroad dragnet. They would have you believe that, even after seizing a CD holding a November 2, 2006 SECRET CIA intelligence report at Sachtleben’s house in May 2012 pursuant to a kiddie porn warrant (which they have not produced in the docket), they just sat on his devices for almost a year until they obtained the phone records for 20 AP phone lines, in a seizure far more intrusive into journalism than any recent known subpoena.

Sachtleben was identified as a suspect in the case of this unauthorized disclosure only after toll records for phone numbers related to the reporter were obtained through a subpoena and compared to other evidence collected during the leak investigation. This allowed investigators to obtain a search warrant authorizing a more exhaustive search of Sachtleben’s cell phone, computer, and other electronic media, which were in the possession of federal investigators due to the child pornography investigation.

(I may be mistaken, but I don’t think the FBI made this claim in any court document, so I assume it is bullshit, especially since they had had to do extensive forensic searches of Sachtleben’s computer and he had already signed a plea deal forfeiting it.)

They would also have you believe the AP had no inkling of the UndieBomb plot until ABC reported inflammatory claims about cavity bombs on April 30, 2012, even in spite of ABC’s reference to TSA head John Pistole’s earlier fear-mongering about it and in spite of additional reporting about broad Air Marshall mobilization. DOJ goes to great lengths to make you believe AP first texted Sachtleben on April 30 and not, say, on April 28 (which would mean the kiddie porn investigation accelerated after such contact), though there’s no reason to believe that’s true and the AP call records DOJ obtained apparently go back to well before April 30. They also suggest AP was asking Sachtleben about an Asiri bomb, though the first text they include is an assertion — not a question — that Asiri has been busy.

They would have you believe that two Pulitzer Prize winners would defy White House and CIA wishes with a story sourced to a single source who, just a day earlier, had provided a mistaken guess about the excitement. Read more →

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