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When the FISA Court becomes the Exotic Surveillance Shop

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I’m still updating yesterday’s post collecting everything we might know about the government’s demand to Lavabit that led Ladar Levison to shut it down.

I’d like to consider the implications of Levison’s hint that the order or warrant he got came not solely from the FBI — as a National Security Letter would — but from the FISA Court.

LADAR LEVISON: I think it’s important to note that, you know, it’s possible to receive one of these orders and have it signed off on by a court. You know, we have the FISA court, which is effectively a secret court, sometimes called a kangaroo court because there’s no opposition, and they can effectively issue what we used to consider to be an NSL. And it has the same restrictions that your last speaker, your last guest, just talked about.

(The restrictions in question pertain to the gag and risk of prison that came with the National Security Letter Nicholas Merrill received.)

Several of us on Twitter today brainstormed what kind of FISA order this might involve: possibilities include using a physical FISA search to get keys from Lavabit’s users, using the Internet dragnet precedents to use FISA’s Pen Register/Trap and Trace provision to get the keys, treating the keys as “tangible things” under Section 215 and demanding them that way, or possibly just a traditional electronic surveillance warrant. They also might have issued a protection order requiring Lavabit to archive things that users otherwise might be able to delete, as they have in a prior case.

But the implication is that all happens under the FISA Court and not (as, for example, the government’s demand for Twitter information on WikiLeaks associates did in that investigation) the Eastern District of VA court.

And that, to me, seems as problematic as the gag and the apparently exotic request.

Consider: presumably the target of this order is Edward Snowden and alleged accomplices of his, though hints about the order suggest the government demanded information on all of Lavabit’s users to get to the information on Snowden. Snowden has already been charged in a criminal complaint (which has been released, but is still not docketed). Snowden has been charged with several crimes, not just probable cause that he’s an agent of a foreign power (and while many in government have been trying to claim he’s a defector to Russia since those charges, at the time he was charged there was no hint of his being a foreign agent).

In other words, this is now and seems to have always been a criminal investigation, not a foreign intelligence investigation (and it didn’t start out as an old-style Espionage investigation, which would have been the appropriate application with Snowden to get into a foreign intelligence court).

So why is it in the “Foreign Intelligence Surveillance Act” court (if in fact it is)? Why isn’t it in a Title III Court, with a nice hefty gag attached to it that would serve the same purpose as the legal gag tied to FISA orders?

Hell, why is it gagged anyway, since it had been publicly reported that Snowden was a Lavabit customer, and since the government itself has leaked that it is investigating and has charged Snowden?

The obvious answer is likely because the FISA Court is where the exotic precedents live — wacky interpretations of Pen Register/Trap and Trace statutes to allow bulk collection of stuff that might loosely be called Internet metadata or of the word “relevant” to mean “whatever the government wants it to mean.”

And that, it seems to me, presents a troubling new interpretation for the “significant purpose” language in FISA, which was passed after 9/11 to allow the government to use information collected under the guise of foreign intelligence for criminal prosecution purposes. The idea, then, was that the court is supposed to serve primarily as a foreign intelligence shop with the criminal use being incidental.

But the very vague outlines of the Lavabit demands appears to suggest the government has reversed that, using the FISA Court for investigative purposes that might easily be accomplished under Title III, except that the government is relying on exotic precedents that only exist in the secret FISA Court.

With so much secret about this order, we can’t be sure, but it appears the government is using the FISA Court for this exotic theory when the appropriate venue should be a traditional Article III court.

You know? Courts that might find such exotic theories outrageous and might disclose the outlines of it to Snowden if he were ever put on trial.

“There are two more issues intelligence officials want noted”

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Walter Pincus fancies his work to be about “reading documents” and finding the bits that everyone else has missed.

The way I’ve always done it is reading documents. I mean there is a huge amount of public material that’s put every day out in the public record and people don’t read it. The key to the column whether it’s good or not is documents. I just – I try to base every column on something I read; a transcript, a report, a hearing, whatever.

Somehow, that approach to journalism has resulted in this, basically an entire piece listing the things Intelligence Community bigwigs wish people had noticed in the White Paper released last Friday.

There are two more issues intelligence officials want noted.

For the most part, however, Pincus’ piece either reiterates the same tired bullet points the IC keeps repeating.

The NSA document notes that of 54 terrorist events discussed publicly, 13 had a U.S. connection, and in 12 of them, the phone metadata played a role.

[snip]

Intelligence officials later pieced together — and have remembered ever since — that 9/11 hijacker Khalid Almihdhar resided in California in early 2000 and that while some of his conversations with an al-Qaeda safe house in Yemen were picked up, the NSA did not have that U.S. phone number or any indication that he was located in San Diego.

[snip]

Another point they note is that over the length of these NSA programs, and similar ones that date to the late 1960s, there have been layers of oversight by the NSA, the Justice and Defense departments, Congress and the judiciary.

Or, in what is really only Pincus’ close focus on the released documents, uses thin evidence from the White Paper to “support” whiny complaints from the IC.

What also angers many former senior intelligence officials is the complaint by members of Congress and particularly some on the intelligence oversight committees that they were never told about the extent of the phone metadata program.

As the Justice paper notes, the Senate and House Intelligence and Judiciary committees “by December 2008 . . . had received the initial application and primary order authorizing the telephone metadata collection. Thereafter, all pleadings and orders reflecting significant legal developments regarding the program were produced to all four committees.”

What Pincus fails to mention is that the White Paper actually proves the critics to be correct. Not only does it prove the Administration waited 5 months — from Silvestre Reyes’ September 30, 2009 request to their December 14, 2009 response to Reyes’ request to the February 24, 2010 letter to members making them aware of that notice, effectively stalling through the entire period of debate over this issue — before actually informing Congress about the dragnet. It also suggests — as has been all-but confirmed since — that Mike Rogers simply decided not to pass on the notice at all the following year. The White Paper proves critics’ point, but Pincus hides that fact.

And all those details about 2009 and 2011 distract from the question of why the Bush Administration didn’t even try to give notice to Congress in 2006, when it had already briefed the FISA Court it planned to use the “relevant” language Congress intended to use to constrain Section 215’s use to blow up it up beyond recognition. Why is it adequate to provide the judiciary committees notice (note, even here the Administration’s claims fall short, as I’ll show in a follow-up) only 3 years after the fact?

Remember, too, that Pincus is a JD. At least in theory, he is trained to do the kind of analysis that Jeffrey Rosen and Orin Kerr have done, pointing out the legal flaws in this logic. Or maybe he might just want to point out how hard the Administration had to look for a definition of “relevant” that didn’t totally undermine their argument.

All of which is to show that Pincus has himself failed to do what he claims is his schtick. A close reading of the White Paper actually introduces more problems, not fewer, for the Administration’s dragnet programs.

Which makes these two parroted claims all the more painful to read.

Such transparency is useless if the news media do not pass it on to the public. Few, if any, major news outlets carried any of the details from the Justice and NSA papers.

[snip]

Intelligence officials say that if the U.S. media do not provide what the government claims are the facts underlying what critics and supporters say, the public cannot understand the issue.

Here Pincus is in a major news outlet passing on not what the White Paper actually shows, not the actual facts presented there, but reinterpreting it with the mostly anonymous guidance of the IC, spinning it to put in better light.

I guess Walter Pincus should read Walter Pincus.

The Known Details on the Lavabit Demand

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Ladar Levison’s interview with Amy Goodman yesterday was his most extensive statement about the demand he got that led him to shut down his company. I want to pull the important tidbits from that interview and this one, with Forbes’ Kashmir Hill, to collect what we know about the demand so far.

Levison told DN the entire service was insecure:

I felt that in the end I had to pick between the lesser of two evils and that shutting down the service, if it was no longer secure, was the better option. It was, in effect, the lesser of the two evils.

He told Hill that he shut down to protect all his users.

“This is about protecting all of our users, not just one in particular. It’s not my place to decide whether an investigation is just, but the government has the legal authority to force you to do things you’re uncomfortable with,” said Levison in a phone call on Friday.

The demand affected his paid users and involved him being forced to have access to the private information the system was designed to ensure he didn’t have.

And at least for our paid users, not for our free accounts—I think that’s an important distinction—we offered secure storage, where incoming emails were stored in such a way that they could only be accessed with the user’s password, so that, you know, even myself couldn’t retrieve those emails.

[snip]

in our case it was encrypted in secure storage, because, as a third party, you know, I didn’t want to be put in a situation where I had to turn over private information. I just didn’t have it. I didn’t have access to it. And that was sort of—may have been the situation that I was facing.

Levison told Hill he has complied with legal requests where the requested information was not encrypted (suggesting it involved his free users).

“I’m not trying to protect people from law enforcement,” he said. “If information is unencrypted and law enforcement has a court order, I hand it over.”

Snowden was a registered user of Lavabit, apparently under his own name.

Ladar, you were the service provider for Edward Snowden?

LADAR LEVISON: I believe that’s correct. Obviously, I didn’t know him personally, but it’s been widely reported, and there was an email account bearing his name on my system, as I’ve been made well aware of recently.

The government has prevented Levison from sharing some of the demand with his lawyer. And Levison thinks that’s because the government would be ashamed of the nature of the demand.

I mean, there’s information that I can’t even share with my lawyer, let alone with the American public. So if we’re talking about secrecy, you know, it’s really been taken to the extreme. And I think it’s really being used by the current administration to cover up tactics that they may be ashamed of.

He told Hill, too, the method they were demanding is what bothered him.

In this case, it is the government’s method that bothers him. “The methods being used to conduct those investigations should not be secret,” he said.

Update: In an interview w/MoJo, he suggests the demand pertains to bulk collection on an entire user base of people.

While Levison of Lavabit could not discuss the specifics of his case, he suggested that the government was trying to compel him to give access to vast quantities of user data. He explained that he was not opposed to fulfilling law enforcement requests that were “specific in nature” and “approved by a judge after showing probable cause,” and noted that he had responded to some two dozen subpoenas during his decade in business. “What I’m against, at least on a philosophical level,” he added, “is the bulk collection of information, or the violation of the privacy of an entire user base just to conduct the investigation into a handful of individuals.”

And suggested if they could intercept communications between the servers and the user, they could decrypt the communications.

if someone could intercept the communication between the Lavabit’s Dallas-based servers and a user, they could get the user’s password and then use that to decrypt their data.

What distinguishes this from previous subpoenas is what is so secret.

AARON MATÉ: And, Ladar, during this time, you’ve complied with other government subpoenas. Is that correct?

LADAR LEVISON: Yeah, we’ve probably had at least two dozen subpoenas over the last 10 years, from local sheriffs’ offices all the way up to federal courts. And obviously I can’t speak to any particular one, but we’ve always complied with them. I think it’s important to note that, you know, I’ve always complied with the law. It’s just in this particular case I felt that complying with the law—

JESSE BINNALL: And we do have to be careful at this point.

LADAR LEVISON: Yeah, I—

Levison questions whether it is possible to run cloud service in this country without being forced to spy on your customers.

I still hope that it’s possible to run a private service, private cloud data service, here in the United States without necessarily being forced to conduct surveillance on your users by the American government.

Levison suggests both his and Silent Circle’s unannounced shut-down served to avoid government efforts to capture data beforehand.

Mike Janke, Silent Circle’s CEO and co-founder, said, quote, “There was no 12-hour heads up. If we announced it, it would have given authorities time to file a national security letter. We decided to destroy it before we were asked to turn (information) over. We had to do scorched earth.” Ladar, your response?

LADAR LEVISON: I can certainly understand his position. If the government had learned that I was shutting my service down—can I say that?

JESSE BINNALL: Well, I think it’s best to kind of avoid that topic, unfortunately. But I think it is fair to say that Silent Circle was probably in a very different situation than Lavabit was, and which is probably why they took the steps that they did, which I think were admirable.

LADAR LEVISON: Yeah. But I will say that I don’t think I had a choice but to shut it down without notice. I felt that was my only option. And I’ll have to leave it to your listeners to understand why.

Everything is being monitored.

LADAR LEVISON: I think you should assume any communication that is electronic is being monitored.

This echoes something Levison told Forbes’ Kashmir Hill:

“I’m taking a break from email,” said Levison. “If you knew what I know about email, you might not use it either.”

Levison also told Hill his location in Texas made it harder to respond to a demand in VA.

“As a Dallas company, we weren’t really equipped to respond to this inquiry. The government knew that,” said Levison, who drew parallels with the prosecutorial bullying of Aaron Swartz. “The same kinds of things have happened to me. The government tried to bully me, and [my lawyer] has been instrumental in protecting me, but it’s amazing the lengths they’ve gone to to accomplish their goals.”

His statement shuttering the company mentioned an appeal to the Fourth Circuit, which includes VA, and the complaint against Edward Snowden was issued in EDVA.

Update: I hadn’t watched the continuation of the DN interview, where Nicholas Merrill, who challenged a National Security Letter back in 2004, came on. But as CDT’s Joseph Lorenzo Hall notes on Twitter, Levison strongly suggests his order came from the FISA Court.

LADAR LEVISON: I think it’s important to note that, you know, it’s possible to receive one of these orders and have it signed off on by a court. You know, we have the FISA court, which is effectively a secret court, sometimes called a kangaroo court because there’s no opposition, and they can effectively issue what we used to consider to be an NSL. And it has the same restrictions that your last speaker, your last guest, just talked about.

Hall also has an interesting piece on Lavabit and CALEA II that addresses issues I’ve been thinking about, in which he includes this discussion.

What did the government demand and under what authority prompted Lavabit’s shutdown? We don’t know, and that’s part of the problem. The Wiretap Act, which authorizes the government to intercept communications content prospectively in criminal investigations, indicates that a provider of wire or electronic communication service (such as Lavabit) can be compelled to furnish law enforcement with “all information, facilities and technical assistance necessary to accomplish the interception unobtrusively… .” 18 USC 2518(4). The Foreign Intelligence Surveillance Act (FISA), which regulates surveillance in intelligence investigations, likewise requires any person specified in a surveillance order to provide the same assistance (50 USC 1805(2)(B)) and so does the FISA Amendments Act with respect to directives for surveillance targeting people and entities reasonably believed to be abroad (50 USC 1881a(h)(1)). The “assistance” the government demands may include the disclosure of the password information necessary to decrypt the communications it seeks, if the service provider has that information, but modern encryption services can be designed so that the service provider does not hold the keys or passwords. Was the “assistance” that the government demanded of Lavabit a change in the very architecture of its secure email service? Was the “assistance” the installation of the government’s own malware to accomplish the same thing? Lavabit has not answered these questions outright, but it did make it clear that its concern extended to the privacy of the communications of all of its users, not just those of one user under one court order.

The Clapper Review: How to Fire 90% of SysAdmins?

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Yesterday, I noted it took just 72 hours from Obama to turn an “independent” “outside” review of the government’s SIGINT programs into the James Clapper Review of James Clapper’s SIGINT Programs.

But many other commenters have focused on the changed description of the review’s mandate. In his speech on Friday, Obama said the review would study, “how we can maintain the trust of the people, how we can make sure that there absolutely is no abuse in terms of how these surveillance technologies are used, ask how surveillance impacts our foreign policy.”

On Monday, his instruction to James Clapper said the review would, “whether, in light of advancements in communications technologies, the United States employs its technical collection capabilities in a manner that optimally protects our national security and advances our foreign policy while appropriately accounting for other policy considerations, such as the risk of unauthorized disclosure and our need to maintain the public trust.”

Both addressed public trust. But Monday’s statement replaced a focus on “absolutely no abuse” with “risk of unauthorized disclosure.”

Now, I’m not certain, but I’m guessing we all totally misunderstood (by design) Obama’s promises on Friday.

The day before the President made those promises, after all, Keith Alexander made a different set of promises.

“What we’re in the process of doing – not fast enough – is reducing our system administrators by about 90 percent,” he said.

The remarks came as the agency is facing scrutiny after Snowden, who had been one of about 1,000 system administrators who help run the agency’s networks, leaked classified details about surveillance programs to the press.

Before the change, “what we’ve done is we’ve put people in the loop of transferring data, securing networks and doing things that machines are probably better at doing,” Alexander said.

We already know that NSA’s plan to minimize the risk of unauthorized disclosure involves firing 900 SysAdmins (Bruce Schneier provides some necessary skepticism about the move). They probably believe that automating everything (including, presumably, the audit-free massaging of the metadata dragnet data before analysts get to it) will ensure there “absolutely is no abuse.”

And by turning the review intended to placate the civil libertarians into the review that will come up with the brilliant idea of putting HAL in charge of spying, the fired SysAdmins might just blame the civil libertarians.

So this review we all thought might improve privacy? Seems, instead, designed to find ways to fire more people faster.

Mike Rogers Says 4 Briefings Recently Makes Up for Withholding Information before PATRIOT Act Vote

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Here’s House Intelligence Chair Mike Rogers’ response to the White Paper’s revelation, backed by Justin Amash’s reports, that he didn’t invite all members of the House to read notice of the Section 215 dragnet.

The House Intelligence Committee makes it a top priority to inform Members about the intelligence issues on which Members must vote. This process is always conducted consistent with the Committee’s legal obligation to carefully protect the sensitive intelligence sources and methods our intelligence agencies use to do their important work. Prior to voting on the PATRIOT Act reauthorization and the FAA reauthorization, Chairman Rogers hosted classified briefings to which all Members were invited to have their questions about these authorities answered. Additionally, over the past two months, Chairman Rogers has hosted four classified briefings, with officials from the NSA and other agencies, on the Section 215 and Section 702 programs and has invited all Republican Members to attend and receive additional classified briefings on the use of these tools from Committee staff. The Committee has provided many opportunities for Members to have their questions answered by both the HPSCI and the NSA. And Chairman Rogers has encouraged members to attend those classified briefings to better understand how the authorities are used to protect the country. [my emphasis]

So even according to Mike Rogers, Mike Rogers provided briefings to members to answer the questions they’d have no notice they needed to ask before reauthorization of the PATRIOT Act because Mike Rogers hadn’t provided the explanation of what they might want to ask questions about.

And since Edward Snowden exposed all this, he has had 4 briefings.

Nowhere in Rogers’ statement does he deny he failed to pass on the notice that read,

We believe that making this document available to all members of Congress, as we did with a similar document in December 2009, is an effective way to inform the legislative debate about reauthorization of Section 215.

Which, I take, is additional confirmation (in addition to the White Paper and reports from Congress) he failed to pass on notice that DOJ and the Administration claimed they wanted shared with all of Congress.

The legality of the 215 dragnet depends, in part, on whether or not the Executive briefed Congress. And because of Mike Rogers, it appears that that legal case is beginning to crumble.

Obama’s Credibility Trap

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President Obama just stood before the nation and said,

And if you look at the reports — even the disclosures that Mr. Snowden has put forward — all the stories that have been written, what you’re not reading about is the government actually abusing these programs and listening in on people’s phone calls or inappropriately reading people’s emails. What you’re hearing about is the prospect that these could be abused. Now, part of the reason they’re not abused is because these checks are in place, and those abuses would be against the law and would be against the orders of the FISC.

Even as he was speaking, his Administration released a document that said, in part,

Since the telephony metadata collection program under Section 215 was initiated, there have been a number of significant compliance and implementation issues that were discovered as a result of DOJ and ODNI reviews and internal NSA oversight. In accordance with the Court’s rules, upon discovery, these violations were reported to the FISC, which ordered appropriate remedial action. The incidents, and the Court’s responses, were also reported to the Intelligence and Judiciary Committees in great detail. These problems generally involved human error or highly sophisticated technology issues related to NSA’s compliance with particular aspects of the Court’s orders. The FISC has on occasion been critical of the Executive Branch’s compliance problems as well as the Government’s court filings. However, the NSA and DOJ have corrected the problems identified to the Court, and the Court has continued to authorize the program with appropriate remedial measures.

While (as I will show in a future post), Obama’s Administration has worked hard to prevent details of these violations from becoming public and delayed even the Judiciary Committees from being briefed, some of them may come out as part of the DOJ Inspector General review that the Administration tried to thwart in 2009.

Also, even as he was speaking, EFF announced the government will turn over a redacted copy of the October 3, 2011 FISA Court ruling that found the minimization procedures for Section 702 violated the Fourth Amendment. A new Guardian report suggests that ruling may pertain to the use of a backdoor to conduct warrantless searches on US person content already collected under Section 702. (While many commentators have insisted the Guardian report provides no evidence of abuse, NSA and DNI’s Inspectors General refused to count how often Americans have been searched in such a way, effectively refusing to look if it has been abused.)

As Shane Harris astutely describes, all of this kabuki is designed solely to make people feel more comfortable about these dragnets.

And the President’s message really boiled down to this: It’s more important to persuade people surveillance is useful and legal than to make structural changes to the programs.

“The question is, how do I make the American people more comfortable?” Obama said.

Not that Obama’s unwilling to make any changes to America’s surveillance driftnets — and he detailed a few of them — but his overriding concern was that people didn’t believe him when he said there was nothing to fear.

But the President just stood up and claimed the government hasn’t abused any of these programs.

It has, by its own admission, violated the rules for them.

Meanwhile, Ron Wyden has already released a statement applauding some of these changes while noting that Obama is still minimizing how bad the violations have been.

Notably absent from President Obama’s speech was any mention of closing the backdoor searches loophole that potentially allows for the warrantless searches of Americans’ phone calls and emails under section 702 of the Foreign Intelligence Surveillance Act. I believe that this provision requires significant reforms as well and I will continue to fight to close that loophole. I am also concerned that the executive branch has not fully acknowledged the extent to which violations of FISC orders and the spirit of the law have already had a significant impact on Americans’ privacy.

Ultimately, details of these violations will come out, and are on their way out in some form already.

If this press conference was designed solely to make us feel better, wouldn’t Obama have been better advised to come clean about these violations than to pretend they don’t exist?

 

Displacing the Reset with Russia

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As you no doubt heard yesterday, Obama called off a planned meeting with Putin after the G20 next month in response to a number of things (including Russia’s increasing persecution of gays), but largely triggered by Russia’s offer of asylum to Edward Snowden.

In addition to this piece applauding that decision, Julia Ioffe wrote up all the things about our approach to Snowden in Russia that Lawrence O’Donnell deemed unfit for MSNBC last night, which echo what I said back in June. The key bullet points are:

  • You can’t back Putin into a corner and leave him no options. If you are a world leader worth your salt, and have a good diplomatic team working for you, you would know that. You would also know that when dealing with thugs like Putin, you know that things like this are better handled quietly. Here’s the thing: Putin responds to shows of strength, but only if he has room to maneuver. You can’t publicly shame him into doing something, it’s not going to get a good response. Just like it would not get a good response out of Obama.
  • The Obama administration totally fucked this up. I mean, totally. Soup to nuts. Remember the spy exchange in the summer of 2010? Ten Russian sleeper agents—which is not what Snowden is—were uncovered by the FBI in the U.S. Instead of kicking up a massive, public stink over it, the Kremlin and the White House arranged for their silent transfer to Russia in exchange for four people accused in Russia of spying for the U.S. Two planes landed on the tarmac in Vienna, ten people went one way, four people went the other way, the planes flew off, and that was it. That’s how this should have been done if the U.S. really wanted Snowden back.

You don’t back ego-driven world leaders into corners — whether it is Putin or Obama — and succeed in achieving your goals.

All that said, Reuters reported a far more interesting development than Obama blowing off the Putin meeting yesterday. The Saudis have offered to bribe Putin to back off his support of Bashar al-Assad.

Saudi Arabia has offered Russia economic incentives including a major arms deal and a pledge not to challenge Russian gas sales if Moscow scales back support for Syrian President Bashar al-Assad, Middle East sources and Western diplomats said on Wednesday.

[snip]

Syrian opposition sources close to Saudi Arabia said Prince Bandar offered to buy up to $15 billion of Russian weapons as well as ensuring that Gulf gas would not threaten Russia’s position as a main gas supplier to Europe.

In return, Saudi Arabia wanted Moscow to ease its strong support of Assad and agree not to block any future Security Council Resolution on Syria, they said.

Finally, America’s allies (and it’s unclear how involved the US was in this deal, though Bandar usually plays nicely with us) are speaking to Putin in terms of Russia’s interests, rather than insisting Assad’s overthrow benefits everyone.

I’m especially interested in Bandar’s promise to “ensur[e] that Gulf gas would not threaten Russia’s position as a main gas supplier to Europe.” That, frankly, is probably the biggest carrot on the table here. But I can imagine no way Bandar could guarantee it (did the Qataris buy in? can Bandar control fracking in Europe? and what happens if and when the Saudis succeed in getting us to overthrow the Iranians?).

It appears the Saudis are more impressed with the meeting than Putin.

One Lebanese politician close to Saudi Arabia said the meeting between Bandar and Putin lasted four hours. “The Saudis were elated about the outcome of the meeting,” said the source, without elaborating.

[snip]

Putin’s initial response to Bandar’s offer was inconclusive, diplomats say. One Western diplomat in the Middle East said the Russian leader was unlikely to trade Moscow’s recent high profile in the region for an arms deal, however substantial.

He said Russian officials also appeared skeptical that Saudi Arabia had a clear plan for stability in Syria if Assad fell.

But it at least appears to suggest that Putin would respond to discussions that acknowledged Russia’s interests, for a change. Even if Bandar can’t yet present a plan that seems plausible.

Does Putin really have to be the grown-up in the room who points out that Syria without Assad will not be stable anytime soon?

No matter what happens with Snowden, very few have acknowledged that, in addition to details of spying on Americans, he has also mapped out the backbone of our increasingly fragile hegemony over the world.  We have responded only by ratcheting up pressure, rather than attempting persuasion.

It will be interesting to see, first, whether this Saudi initiative has any better effect. And if it does, whether we’ve been included in implementing it.

Update: Washington Institute’s Simon Henderson says we weren’t part of this scheme.

The Saudi diplomatic push shows Riyadh’s determination to force the Assad regime’s collapse, which the kingdom hopes will be a strategic defeat for Iran, its regional rival in both diplomatic and religious terms. It also reflects Riyadh’s belief, shared by its Gulf Arab allies, that U.S. diplomacy on Syria lacks the necessary imagination, commitment, and energy to succeed.

[snip]

Meanwhile, the United States is apparently standing on the sidelines — despite being Riyadh’s close diplomatic partner for decades, principally in the hitherto successful policy of blocking Russia’s influence in the Middle East. In 2008, Moscow agreed to sell tanks, attack helicopters, and other equipment to the kingdom, but the deal never went through. Instead, in 2010, Washington and Riyadh negotiated a huge $60 billion defense deal (including attack helicopters), the details of which are still being finalized. The events of the past week suggest that the U.S.-Saudi partnership — which covers regional diplomacy, the Middle East peace process, the global economy, and weapons sales — is, at best, being tested. It would be optimistic to believe that the Moscow meeting will significantly reduce Russian support for the Assad regime. But meanwhile Putin will have pried open a gap between Riyadh and Washington. The results of the latest U.S.-Russian spat will be watched closely, particularly in Saudi Arabia.

I Told You So, It’s about Cybersecurity Edition

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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 →

The Ooga Booga* Continues to Wear Off

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Two and a half years ago, I noted how TSA head John Pistole pointed to a plot the FBI created while he was still its Deputy Director to justify the use of VIPR teams to stop people on non-aviation public transportation.

A couple of weeks back, I pointed to John Pistole’s testimony that directly justified the expansion of VIPR checkpoints to mass transport locations by pointing to a recent FBI-entrapment facilitated arrest.

Another recent case highlights the importance of mass transit security. On October 27, the Federal Bureau of Investigation (FBI) arrested a Pakistan-born naturalized U.S. citizen for attempting to assist others whom he believed to be members of al Qaida in planning multiple bombings at Metrorail stations in the Washington, D.C., area. During a sting operation, Farooque Ahmed allegedly conducted surveillance of the Arlington National Cemetery, Courthouse, and Pentagon City Metro stations, indicated that he would travel overseas for jihad, and agreed to donate $10,000 to terrorist causes. A federal grand jury in Alexandria, Virginia, returned a three-count indictment against Ahmed, charging him with attempting to provide material support to a designated terrorist organization, collecting information to assist in planning a terrorist attack on a transit facility, and attempting to provide material support to help carry out multiple bombings to cause mass casualties at D.C.-area Metrorail stations.

While the public was never in danger, Ahmed’s intentions provide a reminder of the terrorist attacks on other mass transit systems: Madrid in March 2004, London in July 2005, and Moscow earlier this year. Our ability to protect mass transit and other surface transportation venues from evolving threats of terrorism requires us to explore ways to improve the partnerships between TSA and state, local, tribal, and territorial law enforcement, and other mass transit stakeholders. These partnerships include measures such as Visible Intermodal Prevention and Response (VIPR) teams we have put in place with the support of the Congress. [my emphasis]

Now to be clear, as with Mohamed Mohamud’s alleged plot, Ahmed’s plot never existed except as it was performed by FBI undercover employees. In fact, at the time the FBI invented this plot, now TSA-head Pistole was the Deputy Director of FBI, so in some ways, Ahmed’s plot is Pistole’s plot. Nevertheless, Pistole had no problem pointing to a plot invented by his then-subordinates at the FBI to justify increased VIPR surveillance on “mass transit and other surface transportation venues.” As if the fake FBI plot represented a real threat.

Today, a NYT piece raises questions about VIPR’s efficacy (without, however, noting how TSA has pointed to FBI-generated plots to justify it).

T.S.A. and local law enforcement officials say the teams are a critical component of the nation’s counterterrorism efforts, but some members of Congress, auditors at the Department of Homeland Security and civil liberties groups are sounding alarms. The teams are also raising hackles among passengers who call them unnecessary and intrusive.

“Our mandate is to provide security and counterterrorism operations for all high-risk transportation targets, not just airports and aviation,” said John S. Pistole, the administrator of the agency. “The VIPR teams are a big part of that.”

Some in Congress, however, say the T.S.A. has not demonstrated that the teams are effective. Auditors at the Department of Homeland Security are asking questions about whether the teams are properly trained and deployed based on actual security threats.

It’d really be nice if NYT had named the “some” in Congress who had raised concerns. Read more →

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

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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.”