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Congress Finally Gets Around to Learning about Domestic Drones and Privacy

After Congress has spent the last several years telling DOD and FAA to speed up the roll out of drones in domestic airspace, and partly in response to efforts (by Rand Paul, among others) to protect all of our privacy and other efforts (by Shelley Moore Capito) to protect farmers from observation by the EPA, someone finally thought to ask the Congressional Research Service about the Fourth Amendment implications of drones.

The analysis largely tracks what I wrote in this post: drones would be permitted to do simple observation, and would be permitted to do even more when operating close to a border. The big question about drones, though, is whether all the fancy technology they’ve got distinguishes them from the kind of naked eye surveillance a cop would be able to conduct.

Currently, UAVs carry high-megapixel cameras and thermal imaging, and will soon have the capacity to see through walls and ceilings. 98 These technologies are not generally available to the public, and under current jurisprudence, their use by law enforcement would probably constitute a search covered by the Fourth Amendment. However, the use of low-powered cameras or other unsophisticated technology to view people and objects in plain view while in their home might not trigger Fourth Amendment protections.

[snip]

The crucial question, then, is whether drones have the potential to be significantly more invasive than traditional surveillance technologies such as manned aircraft or low-powered cameras— technologies that have been upheld in previous cases. In this vein, some have asked whether using sophisticated digital platforms on a drone is any different from attaching the same instrument to a lamppost or traditional aircraft. 108 Read more

DOD Gets Awfully Sensitive When They’re Cornered

Just about every outlet that reported on George Little’s whine about Matt Bissonnette’s book yesterday claimed that Little had said there was “classified” information in the book.[all emphasis in this post mine]

CNN: A Pentagon official said Tuesday that a former Navy SEAL who helped kill Osama bin Laden included classified material in his new book and did not follow protocol for pre-publication review.

AP: George Little said that an official review of the book, “No Easy Day,” determined that it reveals what he called “sensitive and classified” information.

ABC: Top Pentagon officials said today that a controversial firsthand accountof the nighttime raid that killed Osama bin Laden written by a former U.S. Navy SEAL reveals classified information and could endanger other special operations servicemen.

Fox: “Sensitive and classified information is contained in the book,” Pentagon spokesman George Little told reporters in Washington. “It is the height of irresponsibility not to have this material checked.”

The reality is far more telling. Little did not commit to saying there was classified information in the book until cornered after repeated questions by the press. The transcript is worth reviewing in more detail since, if this ever gets litigated, Little’s hesitation to claim the book included classified information will become an issue.

In response to the first question on Bissonnette’s book, Little gave what was probably his rehearsed answer to it. He focused on Bissonnette’s failure to do a prepublication review (remember, Bissonnette’s lawyer, Bob Luskin, says such a review was recommended but not required). And when discussing the actual review, Little said there was sensitive information; only later, speaking more generally, did Little say “sensitive and classified.”

George, on the separate issue, on the SEAL book, has the department made a decision yet on whether to take any legal action regarding this and on whether or not there is classified material in the book, and if there — if, indeed, you’ve determined there is, can you tell us what it is and what action may or may not be taken at this point?

MR. LITTLE: Thank you very much, Lita, for that question. We continue to review our options when it comes to legal accountability for what in our estimation is a material breach of nondisclosure agreements that were signed by the author of this book.

With respect to the information that’s contained in the book, people inside the department have read it. And we do have concerns about some of the sensitive information that we believe is contained in it. I’m not going to get out ahead of what the process going forward might be and what options we might decide to pursue, but this is a very serious concern that we have.

When it comes to sensitive special operations missions, such as the operation that took down Osama bin Laden, it is important that those who are involved in such operations take care to protect sensitive and classified information. And if I had been part of the raid team on the ground and I had decided to write a book about it, it wouldn’t have been a tough decision for me to submit the book for pre-publication review. That is common sense. It’s a no-brainer. And it did not happen.

Thus far into the process, the press wasn’t buying Little’s slight of hand. He gets a followup on the sensitive/classified distinction, which he dodges by focusing on pre-publication review again.

Q: Will you — just as a follow-up — you made a distinction between sensitive and classified. So is the determination that it is sensitive information there and not classified? And also, is there any determination on whether the book will be sold on — on bases (off mic)

MR. LITTLE: There’s been no directive from this department to withhold sale of the book from military exchanges. This book is being made widely available in bookstores and online. It is not our typical practice to get into the business of deciding what and what does not go on bookshelves in military exchanges. But that doesn’t mean in any way, shape or form that we don’t have serious concerns about the fact that this process of pre-publication review was not followed.

Read more

GAO Catches DoD Changing Definitions to Claim Progress Training Afghans, Misses Real Risks

Patrick Eddington pointed us toward a report (pdf) released yesterday by the GAO. The report is titled “Afghanistan Security: Long-standing Challenges May Affect Progress and Sustainment of Afghan National Security Forces”. GAO describes their reasons for the report (which is also Congressional testimony):

This testimony discusses findings from GAO reports and ongoing work that cover (1) progress reported and tools used to assess ANSF capability, (2) challenges affecting the development of capable ANSF, and (3) use of U.S. Security Force Assistance Advisory Teams to advise and assist ANSF.

The report does a very good job of catching the Defense Department redefining the highest category of ANSF capability in order to claim progress in the percentage of units that have achieved the highest level. However, as Eddington pointed out in his tweet, GAO falls far short of its second goal of enumerating the “challenges affecting the development of capable ANSF”, as the report is entirely silent on the two biggest hurdles faced: defections and green on blue killings.

Here is Reuters’ Missy Ryan describing the use of changed descriptors to claim progress:

The Pentagon’s decision to change the standards used to grade the success of Afghan police and soldiers, who are a centerpiece of U.S. strategy for smoothly exiting the war in Afghanistan, helped it present a positive picture of those forces’ abilities, a U.S. government watchdog reported on Tuesday.

“These changes … were responsible, in part, for its reported increase in April 2012 of the number of ANSF units rated at the highest level,” the Government Accountability Office said in a new report on Afghan national security forces, known as ANSF.

In a twice-annual report to Congress in April 2012, the Defense Department reported that Afghan police and soldiers “continued to make substantial progress,” classifying 15 out of 219 army units as able to operate ‘independently with assistance’ from foreign advisors. Almost 40 out of 435 police units got the same rating.

And what was the redefinition of terms that was used? Merely a slight change that completely negates its meaning:

“Key definitions used in capability assessments … have changed several times,” the GAO said. Its report said the Pentagon’s highest rating for Afghan forces had changed from ‘independent’ in early 2011 to ‘independent with advisors’ later that year.

Gosh, the only way that DoD could show that the ANSF had increased the number of units rated at the highest level of capability was to redefine that highest level of capability. So, instead of “independent”, the most capable units are now “independent with advisors”, which is, you know, NOT independent. Read more

Killer Drones Coming To America!

Like all new fads that start overseas and eventually make their way here to the US as the next “new thing”, drones are on their way to our friendly skies. From AP via Google News:

Unmanned aircraft have proved their usefulness and reliability in the war zones of Afghanistan and Iraq. Now the pressure’s on to allow them in the skies over the United States.

The Federal Aviation Administration has been asked to issue flying rights for a range of pilotless planes to carry out civilian and law-enforcement functions but has been hesitant to act. Officials are worried that they might plow into airliners, cargo planes and corporate jets that zoom around at high altitudes, or helicopters and hot air balloons that fly as low as a few hundred feet off the ground.

On top of that, these pilotless aircraft come in a variety of sizes. Some are as big as a small airliner, others the size of a backpack. The tiniest are small enough to fly through a house window.

Exciting! Cops want to use them to catch speeders, monitor traffic and track suspects (that is pretty much all of us). Border Patrol and Sheriff Joe Arpaio want to use them to chase down the brown (skinned that is). Fed Ex wants them so they don’t have to actually pay pilots. And the NSA wants them to spy on “suspicious” people (like the writers on this blog). Hey, it’s all good; what’s the loss of a little privacy when it comes to protecting America?

There is a tremendous pressure and need to fly unmanned aircraft in (civilian) airspace,” Hank Krakowski, FAA’s head of air traffic operations, told European aviation officials recently. “We are having constant conversations and discussions, particularly with the Department of Defense and the Department of Homeland Security, to figure out how we can do this safely with all these different sizes of vehicles.

Excellent! Because I will feel a lot better when the DOD and DHS have the “civilian airspace” saturated with their freaking drones; won’t you? Of course you will. And we are on the way there too. From Government Executive:

The Homeland Security Department expanded the use of unmanned drones along the U.S.-Mexico border this week, flying for the first time this sort of advanced technology in west Texas.

The Predator B unmanned aerial vehicle is providing support to U.S. Customs and Border Protection to help interdict drug smugglers and detect people trying to enter the United States illegally, key lawmakers said.

Texas lawmakers have been clamoring for years to have an unmanned drone assist in border security operations, but the move had been delayed by bureaucratic wrangling between DHS and the Federal Aviation Administration. Drone flights along the Southwest border had been limited to regions in Arizona and New Mexico.
……
By putting eyes in the sky along the Rio Grande, we will gather real-time intelligence on the ground to augment the good work of federal, state and local law enforcement….

Well, so drones are here among us, at least those of us near the Mexican border; and they are here to stay. Government drones are going to be ever more pervasive and ubiquitous throughout the entirety of the country if the law and order types in the federal, state and local governments have anything to say about it. And they will have their say; count on it. Swell, eh?

So, with all of the Afghani, Pakistani and Iraqi wedding parties that have been taken out by US Predator drone strikes, how long before they hit one of our precious wedding celebrations right here in the homeland of the good old “real America”? What will the NeoCon wingnuts say when it hits their own chosen ones?

[Incredibly awesome graphic by the one and only Darkblack. If you are not familiar with his work, or have not seen it lately, please go peruse the masterpieces at his homebase. Seriously good artwork and incredible music there.]

Steven Bradbury Didn’t Disclose His Appendix M Opinion to Congress

As I posted a week ago, in April 2006 Steven Bradbury wrote one of the most egregious of all the egregious torture memos, one approving the new Army Field Manual, including its Appendix M laying out more intense interrogation methods. While the legal analysis of the memo was, itself, fairly nondescript, the analysis in the memo was written to the file rather than to the client, DOD. This separated Bradbury’s actual approval of the new document for DOD from any analysis or caveats. Approving the memo in such a way allowed DOD to change the content of Appendix M (which they did do), while still maintaining a letter saying whatever was in Appendix M had been approved by OLC.

Which is why I find it so interesting that, in response to a direct Question for the Record from John Conyers in 2008, Bradbury didn’t reveal the memo.

(D) Please identify any other legal opinions or memoranda you have authored or assisted in drafting regarding the interrogation of detainees by U.S. personnel or contractors.

ANSWER: In addition to the three opinions issued by OLC in May 2005, I assisted in preparing the public December 30, 2004 opinion interpreting the federal anti-torture statute. In addition, I authored two opinions related to the CIA program in 2006 and one in 2007. The latter opinion was provided in conjunction with the President’s issuance of Executive Order 13440 setting forth the legal requirements for the CIA program in accordance with the Military Commissions Act of 2006. I also provided or participated in providing other legal advice relevant to the CIA program, either orally or by letter, from time to time in the period from 2004 to the present, and also presented testimony or briefings or participated in preparing letters on the subject to Committees of Congress and their Members and staffs. Finally, I assisted in drafting legal advice and testimony concerning Department of Defense interrogation policies during the tenure of Assistant Attorney General Jack Goldsmith in 2004.

Here’s what Bradbury admits to being involved with:

The only advice he admits being involved with for DOD is limited to the aborted effort to draft a replacement for the Yoo Memo in 2004. And he clearly limits that activity to 2004.

Which means that, when John Conyers asked Bradbury to list every opinion he had written on interrogation, Bradbury did not do so. He hid at least this memo.

I find that interesting not just because Bradbury provided an incomplete answer to Congress on the torture program. But since we still have no idea what authorization DOD used from 2004 until 2006, when Bradbury wrote this memo, Bradbury’s non-disclosure raises the question of what else Bradbury and the Bush Administration may have hidden about OLC approvals for DOD’s torture program.

What the Scope of the IG Report on Warrantless Wiretapping Tells Us

Remember how when Congress passed the FISA Amendment Act last year, they required that the Inspectors General of the various agencies involved in the warrantless wiretapping produce a report on the program? They did an interim report–basically describing the scope of the report–last September (and produced in unclassified form last November). It took Secrecy News pulling teeth to get this released (six months after the fact), but here is the interim report.

General Scope

I’m going to show you the whole scope-related section, then unpack it line by line.

The DoJ IG is completing work on a broadly-scoped review of the Program, which the DoJ IG has been conducting over the past 18 months. In accord with its normal procedures and consistent with classification requirements, the DoJ IG will release its report when completed. The DoJ IG’s review examines the involvement of the DoJ and the Federal Bureau of Investigation (FBI) in the Program, including the use of and control over Program information; compliance with relevant authorities governing the Program as these authorities changed over time; and the impact and effectiveness of Program information on DoJ’s and FBI’s counterterrorism efforts. The review also describes various legal assessments of the Program, legal and operational changes to the Program, any use of Program information in the FISA process, and the transition to Foreign Intelligence Surveillance Court orders related to the Program.

The NSA IG’s review will examine the evolution of the Presidential authorization as it affected NSA, the technical operation of the Program, the preparation and dissemination of the product of the Program, and communications with and representations made to private sector entities. The review will address access by NSA to legal reviews and information concerning the Program and will also examine NSA’s interaction with the Foreign Intelligence Surveillance Court and the transition of Program activities to operations under court orders. The review will also include a description of NSA’s oversight of the Program. To conduct the review of the Program, the NSA IG will both initiate new work and draw upon a substantial body of completed evaluations.

The DoD IG will examine the involvement of the Office of the Secretary of Defense in the establishment and implementation of the Program.

The ODNI IG will examine the involvement of DNI senior leadership in the Program and DNI communication with private-sector entities concerning the Program. Read more

Stephen Cambone Collects on His Handiwork with CIFA

I’ve long suspected that the GOP has used the Counter-Intelligence Field Activity (CIFA) as a way to spy on domestic enemies even while making their friends rich. CIFA is the organization that collected information on both Jesus’ General and Quakers, then stuck it into a database without following requisite privacy protections. And then, when Congress and the Carol Lam started focusing on CIFA, its database on private citizens got quickly disappeared.

70% of its staff are contractors. And one of the early CIFA contractors was the company of Mitch Wade–Duke Cunningham’s briber–MZM.

Which is why I noted, back in May 2006, that CIFA seemed like a huge improvement (from a Republican perspective) on Nixon-era domestic spying.

Back when Nixon was spying on his enemies, he used the agencies of the US government. He was using civil servants subject to congressional oversight to do his dirty work. But the newfangled Republican party learned in Iran-Contra that, if you outsource the dirty work far enough, you’re more likely to avoid the oversight that will lead to discovery.

[snip]

So let me connect the dots here. Republican legislators have set up this nifty scheme, whereby their buddies ply them with golf trips, swank real estate deals, and prostitutes. In exchange for that booty, they give their buddies contracts at Defense or Homeland Security or CIA. Spying contracts. Under those spying contracts, the buddies spy on American citizens, even funny bloggers and peaceniks. And although it is known that these buddies are a little sloppy with the way they spy on American citizens, they continue to get more work.

Now, as I said, back in 2006, as the whole Cunningham scandal was erupting, all of a sudden people decided it might be good to start exercising some oversight over CIFA. The Cunningham investigation extended to Wade’s contracting on CIFA. Congress held some hearings. More interestingly, Stephen Cambone claimed to lead an inquiry.

Undersecretary of Defense Stephen A. Cambone has ordered an internal study of how funding earmarked in a bill by then-Rep. Randy "Duke" Cunningham (R-Calif.) led to contracts for MZM Inc. to do work for the Pentagon’s newest intelligence agency, the Counterintelligence Field Activity, a Defense Department spokesman said. Read more