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The National Security Advisor Exception Under the Espionage Act

When the FBI found sensitive — though it turned out, unclassified — documents in Thomas Drake’s basement, he was charged under the Espionage Act. When the Army found hundreds of thousands of classified — but not Top Secret — cables on Bradley Manning’s computer, they charged him with Espionage and Aiding the Enemy.

But when the FBI found Top Secret documents on Sudan — our actual enemy, if sanctions count — in Reagan National Security Advisor Robert McFarlane’s basement, it decided to investigate him for illegal lobbying.

The FBI has searched the apartment of former Reagan administration national security adviser Robert McFarlane for evidence of whether he lobbied for the government of Sudan, in violation of federal law.

The search warrant is on file in federal district court in Washington. It shows agents seized items this month including handwritten notes about Sudan and White House documents with classifications up to Top Secret.

From this I can only assume that McFarlane is being subjected to the same double standard that Clinton’s National Security Advisor Sandy Berger was (represented, it should be noted, by former Criminal Division chief Lanny Breuer), when he snuck 9/11 related documents out of the Archives, yet only plead guilty to a misdemeanor.

When National Security Advisors take top secret documents, they’re called lobbyists, not spies.

I can’t wait to find out what Condi Rice will be called if she’s ever caught with sensitive documents in her basement.

A Partial Defense of Bill Keller’s Column on Manning

Late Sunday, former New York Times Executive Editor Bill Keller put up an op-ed column at the NYT website on the state of Bradley Manning’s case, his perception of Manning’s motivations and what may have been different had Manning actually gotten his treasure trove of classified information to the Times instead of WikiLeaks. The column is well worth a read, irrespective of your ideological starting point on Mr. Manning.

Bradley Manning has ardent supporters and, predictably, they came out firing at Keller. Greg Mitchell immediately penned a blog post castigating Keller for not sufficiently understanding and/or analyzing the Manning/Lamo chat logs. Kevin Gosztola at Firedoglake also had sharp words for Keller, although, to be fair, Kevin did acknowledge this much:

It is an interesting exercise for Keller. Most of what he said is rational and, knowing Keller’s history, he could have been more venerating in his description of how the Times would have handled Manning.

Frankly, many of the points Mitchell and Gosztola made, which were pretty much representative of a lot of the chatter about Keller’s op-ed on Twitter, were fair criticism even if strident. And part of it seems to simply boil down to a difference in perspective and view with Keller, as evidenced in Keller’s response to inquiry by Nathan Fuller, where he indicates he simply views some things differently.

This is all healthy give and take, difference in view and sober discussion by the referenced Read more

The Traditional Press’ Blind Spot in Aiding the Enemy

This post by Kevin Gosztola lays out many of the implications of the news — revealed in Bradley Manning’s statement to the court yesterday — that he tried to publish the Iraq and Afghan cables with WaPo, NYT, and Politico before he turned to WikiLeaks. He describes, as Michael Calderone has laid out at length, how NYT and WaPo claim to have no memory of Manning’s pitch.

He wonders what the NYT and WaPo would have done had they actually gotten exclusive dibs on Manning’s trove of information.

Had the Times or Post obtained the logs and begun to examine them for publication, what would the organizations have done? Would they have published? Would they have notified the government they now possessed the documents? The Timescommunicated with the government when preparing to publish State Department cables:

Because of the range of the material and the very nature of diplomacy, the embassy cables were bound to be more explosive than the War Logs. Dean Baquet, our Washington bureau chief, gave the White House an early warning on Nov. 19. The following Tuesday, two days before Thanksgiving, Baquet and two colleagues were invited to a windowless room at the State Department, where they encountered an unsmiling crowd. Representatives from the White House, the State Department, the Office of the Director of National Intelligence, the C.I.A., the Defense Intelligence Agency, the FBI and the Pentagon gathered around a conference table. Others, who never identified themselves, lined the walls. A solitary note-taker tapped away on a computer.

What would have happened to Manning? Would they have been able to protect the identity of the lower-level soldier who had passed on information because he believed they were “some of the most significant documents of our time, removing the fog of war and revealing the true nature of 21st Century asymmetric warfare.”

The example of Jeffrey Sterling, where NYT’s apparent consultation with the government on whether to publish Risen’s story about Merlin appears to have launched the investigation into Sterling, heightens this concern.

And I would also ask whether the papers would sit on the information, using it as their exclusive data, rather than releasing it to be crowd sourced and accessed by people with more expertise on particular areas. A WikiLeaks trove would have made (and to some extent has in any case) the NYT brand for some time. Would the paper have put more stock in that than in sharing the information.

After raising questions about whether NYT would expose its source in such a case, Gosztola concludes, shows the value of organizations like WikiLeaks.

This is why leaks organizations like WikiLeaks are needed. Not only do they have the power to reveal what governments are doing in secret, they also are uniquely positioned—if constructed appropriately—to protect the identity of sources in a such way that makes it near impossible for governments to pursue those blowing the whistle. It creates the possibility that employees in militaries or national security agencies can reveal what they are seeing, be conscientious citizens and at the same time keep their job and, perhaps, not risk their livelihood.

I’d add two points to that.

NYT’s normally excellent ombud, Margaret Sullivan, suggested that the paper could continue the “time-tested way” of sourcing leaks directly to reporters. Dan Froomkin argues this news proves the need for a whistleblower drop box.

Both are ignoring a very dangerous new reality of the war on leakers. Read more

The Six Week Delay in the Swartz Investigation

I want to explain something about this post.

As I noted, the same day that Aaron Swartz resubmitted his FOIA on Bradley Manning’s treatment, the Secret Service got a warrant to search most of the hardware captured on the day he was arrested (a USB on his person and a laptop and hard drive found elsewhere on MIT’s campus), as well as his home (and they subsequently got a warrant to search his office at Harvard).

Some people were either confused or skeptical there was a connection.

But whether or not there’s a connection, there’s something funky about the Swartz investigation in the first half of 2011.

He was arrested very quietly on January 6; I suspect the reason few people knew about it was because no one expected it to amount to anything.

And for a while, it didn’t.

The Secret Service officer on the case, Michael Pickett, raised the issue of warrants on January 7–the day after Swartz was arrested. But the government didn’t get around to actually getting warrants to search this hardware until February 9, over a month later.

Here’s the warrant and supporting affidavit ultimately used for the hardware (except his phone, which was also seized).

But as this defense motion makes clear, there was a further delay after that first February 9 warrant. The Secret Service let the February 9 warrants for the hardware expire, and had to get new warrants on February 24.

Here, there was a 34-day delay in obtaining the February 9, 2011, warrant, which remained unexecuted, and a total of a 49-day delay until the obtaining of the February 24, 2011, warrant pursuant to which the items were ultimately searched.

[snip]

On the other side of the balance, defendant knows of no conceivable reason which could justify a delay of this magnitude.

And while it’s not central to this post, in the motion Swartz’ lawyer cited a slew of Circuit Court opinions (though none from the First Circuit) throwing out searches on computers after this kind of delay.

In other words, after getting control of this investigation, Secret Service largely let it slide, potentially fatally so for any prosecution.

Which is why it’s interesting that, when the Secret Service finally summoned the energy (or got the okay from AUSA Stephen Heymann) to start this investigation, it was more interested in investigating Swartz’ home than in investigating his hardware–the stuff that directly tied to the crime purportedly in question.

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Was Aaron Swartz’ Effort to FOIA Bradley Manning’s Treatment Why DOJ Treated Him So Harshly?

As I mentioned earlier, John Cornyn asked Eric Holder whether Aaron Swartz was prosecuted because of his FOIAs.

Second, was the prosecution of Mr. Swartz in any way retaliation for his exercise of his rights as a citizen under the Freedom of Information Act? If so, I recommend that you refer the matter immediately to the Inspector General.

I have shown earlier how, during the period when the Grand Jury was investigating Swartz, Swartz was FOIAing stuff that the prosecutor seems to have subpoeaned as part of a fishing expedition into Swartz. I have also shown that a FOIA response he got in January 2011 suggests he may have been discussed in a (presumably different) grand jury investigation between October 8 and December 10, 2010. And Jason Leopold has also pointed to some interesting coincidences in Swartz’ FOIAs.

But there’s a series of FOIAs Swartz submitted that almost certainly pissed off the government: he FOIAed tapes that would have had Bradley Manning, describing in his own words, how he was being treated at Quantico.

On December 23, 2010, David House blogged about the treatment Bradley Manning was being subjected to at Quantico (which has since been deemed illegal).

On December 27, Swartz asked for the following in FOIA from the Marine Corps:

Any records related to Bradley Manning or his confinement in Quantico Brig.

In particular, please process as quickly as possible a request for the government-curated audio tapes created in Quantico brig visitation room #2 on December 18 and December 19 2010 from 1:00pm – 3:00pm. These tapes may also contain a recording of David M. House; I have permission from David House under the Privacy Act to request these records.

The timeline that ensued is below, with other significant dates included.

Of particular interest? The Secret Service didn’t get warrants to investigate Swartz immediately after his initial arrest, in spite of the fact Secret Service Agent Michael Pickett offered to get a warrant on January 7. In fact, Secret Service didn’t get warrants until February 9, over a month after his initial arrest. (Update: See this post for more on the delay.)

That’s the day Swartz FOIAed the Army Criminal Investigative Service for the tapes on Manning’s treatment.

More odd still, the Secret Service didn’t immediately use the warrants to obtain the hardware seized in his arrest; the warrant to search his hardware expired and Secret Service eventually got a second one. But Secret Service did search Swartz’ home two days after they got that warrant, on February 11–two days after he asked ACIS for the tape that would have Manning describing how he was being treated.

Suffice it to say that Swartz was pursuing the same information that got State Department Spokesperson PJ Crowley fired just as USSS intensified its investigation of him.

While I don’t think Swartz’ pursuit of details on Manning’s treatment would be the only reason they would deal with him so harshly, the Obama Administration clearly was dealing harshly with those who were critical of the treatment of Manning.

Update: This post has been updated for accuracy.


December 23, 2010: David House blogs about Manning’s treatment, effectively fact-checking DOD’s claims.

December 27, 2010: Swartz FOIAs the recording of House’s visit to Manning, which would have captured Manning describing in his own words how he was being treated.

December 29, 2010: Initial response on Manning brig FOIA.

January 4, 2011: MIT finds Swartz’ computer. Secret Service takes over the investigation.

January 6, 2011: Swartz arrested.

January 7, 2011: Twitter administrative subpoena to several WikiLeaks team members revealed.

January 17, 2011: Protest outside of Quantico for Manning.

January 18, 2011: Manning placed on suicide risk.

January 20, 2011: Swartz’ Manning brig FOIA transfered to Quantico CO.

February 1, 2011: Quantico tells Swartz Manning brig FOIA needs to go to Army Criminal Investigative Service.

February 9, 2011: Swartz FOIAs ACIS for Manning brig information.

February 9, 2011: Secret Service obtains warrant to search Swartz’ hardware and apartment, followed by a warrant to search his office.

February 9, 2011: WSJ reports WikiLeaks investigation cannot prove Assange induced Manning to leak documents.

February 11, 2011: Secret Service searches Swartz’ house and office, but not the hardware primarily implicated in the crime purportedly being investigated.

February 22, 2011: Warrants on Swartz’ hardware expire.

February 24, 2011: Secret Service obtains new warrant for hardware. Initial response from ACIS to Manning brig FOIA.

February 28, 2011: ACIS responds to Swartz’ Manning FOIA, stating,

… the requested documents are part of an ongoing Army court-martial litigation and are not releasable to the public at this time. This request will be closed. Please submit your request at a later time.

March 2, 2011: Swartz responds to this rejection:

On the 28th of February, the US Army’s Freedom of Information Act Officer declined to release documents I requested under FOIA/PA because they “are part of an ongoing Army court-martial litigation.”

Being part of ongoing litigation is not a valid exemption to the FOIA or the Privacy Act.

There are narrow exemptions for certain types of release that interfere with law enforcement activities, but the Army has not claimed these exemptions nor explained why they apply. Furthermore, the normal procedure is to collect the documents and then evaluate them to see whether any portions of them qualify for the exemption. It appears the Army did not collect documents in response to my request at all, so I do not see how it could have evaluated them.

I therefore appeal my request in its entirety.

March 3, 2011: ACIS admits Swartz is correct:

 You are absolutely correct and I want to apologize for sending you the wrong information. This request is being sent to the Initial Denial Office (IDA) today. Please give them a couple of days to receive it.

March 4, 2011; ACIS sends another letter:

Because this request has been denied this request is being sent to the Initial Denial Office (IDA).

March 11, 2011: PJ Crowley criticizes Manning’s “ridiculous, counterproductive, and stupid” treatment at event at MIT. Jake Tapper asks Obama about Crowley’s comment at press conference.

March 13, 2011: White House forces PJ Crowley to resign for criticizing treatment of Manning.

March 18, 2011: ACIS rejects his request, citing an ongoing investigation.

April 19, 2011: DOD announces Manning will be moved to Leavenworth.

Will NYT’s Ombud Encourage a NYT Pre-Sentencing Memo for Bradley Manning, Too?

When I first read Scott Shane’s long profile of John Kiriakou, I thought, “how interesting that the NYT is doing a piece that exposes the government’s double standards just in time for the sentencing of Kiriakou, one of their sources.”

That’s not to say I’m not glad to see the piece: the profile did more to raise the scandal of Kiriakou’s prosecution than just about anything short of a 60 Minutes piece might.

And I’m much less interested in Shane’s references to his own role in Kiriakou’s indictment

Mr. Kiriakou first stumbled into the public limelight by speaking out about waterboarding on television in 2007, quickly becoming a source for national security journalists, including this reporter, who turned up in Mr. Kiriakou’s indictment last year as Journalist B.

[snip]

After Mr. Kiriakou first appeared on ABC, talking with Brian Ross in some detail about waterboarding, many Washington reporters sought him out. I was among them. He was the first C.I.A. officer to speak about the procedure, considered a notorious torture method since the Inquisition but declared legal by the Justice Department in secret opinions that were later withdrawn.

Then I am by this passage.

In 2008, when I began working on an article about the interrogation of Khalid Shaikh Mohammed, I asked him about an interrogator whose name I had heard: Deuce Martinez. He said that they had worked together to catch Abu Zubaydah, and that he would be a great source on Mr. Mohammed, the architect of the Sept. 11 attacks.

He was able to dig up the business card Mr. Martinez had given him with contact information at Mitchell Jessen and Associates, the C.I.A. contractor that helped devise the interrogation program and Mr. Martinez’s new employer.

Mr. Martinez, an analyst by training, was retired and had never served under cover; that is, he had never posed as a diplomat or a businessman while overseas. He had placed his home address, his personal e-mail address, his job as an intelligence officer and other personal details on a public Web site for the use of students at his alma mater. Abu Zubaydah had been captured six years earlier, Mr. Mohammed five years earlier; their stories were far from secret. [my emphasis]

As I have mapped out before, the indictment strongly suggests that Kiriakou was Shane’s source for Martinez’ phone number, and with that suggestion, implies that Shane got Martinez’ identity from Kiriakou rather than one of the 23 other sources he had for the article.

With this passage, Shane rebuts what would have been a key point at trial (and may help Kiriakou in his sentencing). At least according to Shane, he not only learned of Martinez’ identity before he asked Kiriakou about it, but was able to find Martinez’ home address and email on an alumni network site. (Note, Shane doesn’t address whether Kiriakou was the source for the “magic box” technology discussed in the article, about which Kiriakou was also alleged to have lied to CIA’s Publication Review Board.)

In short, the whole article serves as a narrative pre-sentencing memo, offering a range of reasons why Kiriakou should get less than the 30 months his plea deal currently recommends.

Read more

Will Michael Vickers Now Be Subjected to Forced Nudity?

If you’ve been following the Bradley Manning case at all, you know the government treats alleged leakers by inventing reasons to take away their clothes away.

So I wonder whether they’ll now subject Undersecretary of Intelligence Michael Vickers–who, DOD’s Inspector General has determined, provided the identity of a Special Operations planner to the makers of Zero Dark Thirty.

Pentagon investigators concluded that a senior Defense Department official who’s been mentioned as a possible candidate to be the next CIA director leaked restricted information to the makers of an acclaimed film about the hunt for Osama bin Laden, and referred the case to the Justice Department, according to knowledgeable U.S. officials.

[snip]

The case involved a determination by investigators of the Pentagon’s inspector general’s office that Vickers provided the makers of the film “Zero Dark Thirty” with the restricted name of a U.S. Special Operations Command officer who helped plan the May 2, 2011, raid on bin Laden’s hideout in Pakistan, one official said.

Though perhaps the best comparison is not between Vickers and Manning, but between Vickers and Kiriakou. Both, after all, gave the name of someone who might not be all that protected to a third party so they could conduct further investigation. With both, the name did not become public via this leak.

And John Kiriakou’s headed to prison.

There’s little chance Vickers will experience a similar fate as Kiriakou though. As McClatchy notes, the Administration has already declassified a report showing Vickers providing this name. DOJ has been sitting on the referral since September. And McClatchy’s sources are discussing how this will affect Vickers’ chances of becoming CIA Director, not whether anything worse will happen.

Even Peter King, who demanded the investigation in the first place, does not want an indictment, but appears to prefer instead to politicize the fact that he hasn’t been told about Vickers’ role.

King told McClatchy that the delay in notifying him “raises the question” of whether officials were trying to put it off for political reasons, but he wanted to see the full report before drawing any conclusions.

I’m not looking for anyone to be indicted,” he said. “But the IG does not make referrals to the Justice Department as a matter of routine. To me the fact that any information at all would be given to Hollywood producers by this administration is disgraceful.”

“If it’s wrong enough or questionable enough for the IG to refer it to the Justice Department, that means it shouldn’t have been done.” [my emphasis]

Yes, I imagine Peter King wouldn’t want to encourage top people being indicted for leaking classified information…

Which demonstrates, once again, what our classification system really is. It is not a law, to be applied neutrally to all. On the contrary, it is applied selectively, used primarily as a threat tied to higher wages tied to a clearances, but on occasion, as the premise to punish those who deviate from NatSec orthodoxy.

Update: This post originally stated Kiriakou was already in prison. He’s not. As Thomas Drake corrected me, he’s scheduled to be sentenced next month.

What If the Insider Threat Memo Is about David Petraeus?

In a holiday document dump, President Obama transmitted Minimum Standards for Insider Threat Detection Programs. As mere citizens, we don’t get to see those standards. We only get to see the memo accompanying them, which leaves us guessing what–if anything–to make of the timing and content of the memo. In addition to Steven Aftergood’s general overview, Falguni Sheth, Kevin Gosztola, and Jesselyn Radack have some thoughts.

The simplest explanation for the timing of the memo is that’s when the Insider Threat Task Force developing them finished the Standards. The Standards were due a year after Obama ordered the creation of them on October 7, 2011.

Sec. 6.3. The Task Force’s responsibilities shall include the following:

(a) developing, in coordination with the Executive Agent, a Government-wide policy for the deterrence, detection, and mitigation of insider threats, which shall be submitted to the Steering Committee for appropriate review;

(b) in coordination with appropriate agencies, developing minimum standards and guidance for implementation of the insider threat program’s Government-wide policy and, within 1 year of the date of this order, issuing those minimum standards and guidance, which shall be binding on the executive branch;

That would mean they were due 45 days before Obama transmitted them. Perhaps the delay can be explained by either the election or a review within the White House (and I’m wonder whether Obama’s victory influenced how Obama received these Standards).

So it could well be that this memo was released as a holiday dump through sheer chance, Obama finishing up business before taking time with the family.

The timing of the transmittal might also be explained by personnel changes. James Clapper and Eric Holder (or their designees) would be the mandatory co-Chairs of the Task Force. While reports suggest Holder will stick around for another year, it’s unclear whether Clapper will be.

But then there’s the possibility that the Petraeus scandal influenced this release.

As a threshold matter, the EO mandating these Standards includes CIA involvement (by designees of but not the Director himself) on both the Task Force and Steering Committee on Insider Treats. It also reserves the authority of the Director of CIA with regards to security of information systems under an earlier EO and a National Security Directive. What happens where you’re in the middle of rolling out an Insider Threat Detection Program and one of the key players involved in it is embroiled in an insider threat investigation himself?

The EO also allows the Director of National Intelligence to “issue policy directives” to help the agencies of the Intelligence Community comply with this.

With respect to the Intelligence Community, the Director of National Intelligence, after consultation with the heads of affected agencies, may issue such policy directives and guidance as the Director of National Intelligence deems necessary to implement this order.

Perhaps such “policy directives” no longer seem like such a good idea if the CIA Director can’t even limit his threat profile.

Then there’s the possibility that the behavior of one of the players in the scandal demonstrated that the Standards are not yet being met. While reportedly Petraeus and Paula Broadwell only shared a GMail account–and therefore there is no allegation that they used the classified networks addressed in the EO–we have fewer details about what network General Allen was using to exchange sexy-time emails with Jill Kelley. Furthermore, whlie we know Broadwell had classified information on her computer and in her house, we don’t have much detail on this, either. As a Reserve Officer, her behavior may well have demonstrated holes in the program implemented by DOD.

In other words, it may be that the Standards had been languishing for 45 days after they were completed, but the Petraeus scandal identified that the Insider Threat Detection should have but did not identify some of the activities going on. That might have created some urgency for Obama to transmit them, so he could start cracking heads at the agencies where they standards were not being met. Obama’s memo also promises the standards will “provide the workforce with insider threat awareness training,” so it’s possible the Administration believes that if just its top Generals had a bit more training they might not destroy their careers by compromising security. Though, as Marc Ambinder explained, because he was in the chain of command for the nuclear football, Petraeus would have had extensive indoctrination on potential threats.

Or maybe it’s something else entirely.

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The Government Can’t Make Up Its Mind Whether WikiLeaks Amounts to Aiding Al Qaeda or Not

The government’s arguments in Hedges v. Obama are getting more and more inconsistent.

This is the case, recall, where Chris Hedges, Birgitta Jonsdottir, and several other people challenged the section of the NDAA that affirmed the President’s authority to militarily detain or deport (among other things) “covered persons.” Because the government repeatedly refused to say that the plaintiffs were not covered by the section, Judge Katherine Forrest not only found they had standing to sue, but she enjoined enforcement of the law.

Now the government is trying to unfuck the fuckup they made at oral arguments by offering caveated assurances that none of the plaintiffs would be covered by the law. (h/t Ben Wittes) But look carefully at what they say:

The government argued in its briefs that the plaintiffs cannot reasonably believe that section 1021 would extend to their conduct, in light of law of war principles, First Amendment limitations, and the absence of a single example of the government detaining an individual for engaging in conduct even remotely similar to what is alleged here. See Gov’t Initial Mem. 12-13. But at argument the government did not agree to provide specific assurance as to each plaintiff, a request that the government considers problematic. As a result, this Court deemed the government’s position to be unclear regarding whether section 1021 could apply to the conduct alleged by plaintiffs in this case. To eliminate any doubt, the government wants to be as clear as possible on that matter. As a matter of law, individuals who engage in the independent journalistic activities or independent public advocacy described in plaintiffs’ affidavits and testimony, without more, are not subject to law of war detention as affirmed by section 1021(a)-(c), solely on the basis of such independent journalistic activities or independent public advocacy.5 Put simply, plaintiffs’ descriptions in this litigation of their activities, if accurate, do not implicate the military detention authority affirmed in section 1021.

5 This case does not involve the kind of independent expressive activity that could support detention in light of law of war principles and the First Amendment. In contrast, for example, a person’s advocacy, in a theater of active military operations, of military attacks on the United States or the intentional disclosure of troop movements or military plans to the enemy, or similar conduct that presents an imperative security threat in the context of an armed conflict or occupation, could be relevant in appropriate circumstances. See Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, arts. 5, 41-43, 78. As discussed further below, it is not appropriate to expect the government to make categorical statements about the scope of its detention authority in hypothetical scenarios that could arise in an armed conflict, in part, because that authority is so context-dependent.

The government is not being at all clear here! It is reaffirming it stance that it would be problematic to offer assurances about the plaintiffs. It is saying it “wants to be as clear as possible” on this issue, but then says only if plaintiffs’ descriptions of their activities are accurate, then they don’t implicate military detention authority.

Let me spoil the surprise. The government doesn’t believe all the plaintiffs’ descriptions are accurate.

For a hint of why, look at the footnote. First, you’ve gotta love their caveat that “in a theater of active military operations.” The government has repeatedly said the entire world, including the US, is the battlefield in this war on terror. So they really mean “anywhere.”

But note they include “intentional disclosure of troop movements or military plans” to the enemy. That passage gets at their problem here.

That’s because, in spite of the fact that they say, “Section 1021 has no application to unarmed groups like WikiLeaks,” and remind they’ve offered assurances that Jonsdottir “could [not] possibly be deemed to fall within the scope of section 1021,” the government’s actions against WikiLeaks belie those claims.

That’s true, first of all, because DOJ specifically excludes entities like WikiLeaks from their definition of protected journalistic activities. (Indeed, I’ve deemed this passage from the DIOG the “WikiLeaks exception.”)

As the term is used in the DIOG, “news media” is not intended to include persons and entities that simply make information available. Instead, it is intended to apply to a person or entity that gathers information of potential interest to a segment of the general public, uses editorial skills to turn raw materials into a distinct work, and distributes that work to an audience, as a journalism professional.

Reassurances from DOJ that “journalistic activities” would not make Jonsdottir a covered person for her WikiLeaks work are worthless since DOJ doesn’t consider WikiLeaks’ activities journalistic activities.

More importantly, the government has already made it clear that they believe WikiLeaks amounts to aiding al Qaeda in DOD’s case against Bradley Manning. In fact, they base their Aiding the Enemy charge against Manning on the claim that by leaking materials to WikiLeaks, he knowingly made it available to al Qaeda.

In deliberations over a defense motion to dismiss the “aiding the enemy” charge, the government argued that the “enemy” had gone regularly to a “specific website and Pfc. Bradley Manning knew the “enemy” would do this when he allegedly provided information to the website.

The deliberations occurred in the second day of a pre-trial motion hearing at Fort Meade in Maryland. Manning, who is accused of releasing classified information to WikiLeaks, is charged with “aiding the enemy,” an Article 104 offense under the uniform code of military justice (UCMJ). It is a federal offense that could carry the death penalty (although the government has indicated it will not press for that in sentencing).

Judge Col. Denise Lind asked military prosecutor Capt. Joe Morrow if “the government intends to show that there is a particular website that this information was sent to and the accused was aware the enemy used that website.” Morrow said yes.

What this means is that the government is essentially arguing that “the enemy”—which the government has said is al Qaeda or any terror groups related—frequently accessed WikiLeaks and any “intelligence” provided. Manning knew that by handing over information to website he would provide assistance to “the enemy.”

And Judge Lind bought off on this argument, at least in theory.

So long as the government sustains this bogus Aiding the Enemy charge against Bradley Manning, then they implicitly are also arguing that Jonsdottir, by actually publishing the information allegedly provided by Manning, also intentionally provided intelligence to al Qaeda.

It seems, after being embarrassed by their past obstinance, the government is willing to say anything to avoid individuals from getting standing to challenge their counterterrorism abuses. Are they worried enough to drop that Aiding the Enemy charge yet?

Does NCTC Have the Minimal Data Security to Guard Its New Not-Terrorist-Terrorist Database?

As I noted here and here, yesterday the Director of National Intelligence and DOJ rolled out new Guidelines allowing the National Counterterrrorism Center to acquire non-terrorist datasets from federal agencies–including US person data–so they can do pattern analysis on those datasets and pass off the resulting data to other agencies.

When intelligence officials wanted to explain to Charlie Savage how this would work, they pointed to a State Department dataset–visa applications–as one dataset NCTC might now access directly.

A person from Yemen applies for a visa and lists an American as a point of contact. There is no sign that either person is a terrorist. Two years later, another person from Yemen applies for a visa and lists the same American, and this second person is a suspected terrorist.

Under the existing system, they said, to discover that the first visa applicant now had a known tie to a suspected terrorist, an analyst would have to ask the State Department to check its database to see if the American’s name had come up on anyone else’s visa application — a step that could be overlooked or cause a delay. Under the new rules, a computer could instantly alert analysts of the connection.

The State Department is, of course, still reportedly recovering from the fact that because of DOD’s lax network security, 250,000 diplomatic cables got liberated for the world to see.

Not surprisingly, then, the new Guidelines appear determined to reassure original dataset owners that their data won’t be compromised by sharing it with NCTC (which can then share it with other elements of the Intelligence Community and even foreign allies). You can tell they’re serious about this, because it’s one of the places they occasionally use “shall” (in other sensitive areas, they use the squishier “will”).

For access to or acquisition of specific datasets, the DNI, or the DNI’s designee, shall collaborate with the data provider to identify any legal constraints, operational considerations, privacy or civil rights or civil liberties concerns and protections, or other issues, and to develop appropriate Terms and Conditions that will govern NCTC’s access to or acquisition of datasets under these guidelines.

[snip]

In addition to the [general requirements laid out for sharing this data], at the time when NCTC acquires a new dataset or a new portion of a dataset, the Director of NCTC shall determine, in writing, whether enhanced safeguards, procedures, and oversight mechanisms are needed.

Though this bold approach almost immediately breaks down, as the Guidelines not only revert to “will,” but–worse–dig out the passive voice when describing the data transfer.

Measures will be put into place to ensure that the dataset is received and stored in a manner to prevent unauthorized access and use prior to the completion of replication.

And when the Guidelines get into specifics, they use that passive “will” again.

Access to these datasets will be monitored, recorded, and audited. This includes tracking of logons and logoffs, file and object manipulation, and changes, and queries executed, in according with audit and monitoring standards applicable to the Intelligence Community.

Who will (“shall”) implement these data security measures? What if he or she fails to do so adequately?

It’s a really, really important question because–as this year’s intelligence authorizations make clear, the Intelligence Community does not yet have insider threat detection–the kind of security that would permit these audits–and they’re not going to get it until 18 months from now. Hell, they’re not even going to start getting it until 6 months from now!

(a) Initial Operating Capability.–Not later than October 1, 2012, the Director of National Intelligence shall establish an initial operating capability for an effective automated insider threat detection program for the information resources in each element of the intelligence community in order to detect unauthorized access to, or use or transmission of, classified intelligence.

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