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Government Tries to Implicate Sterling with Calls to CIA’s House Reporter

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Watercolor of Sterling

Courtroom sketch by Debra Van Poolen (http://www.debvanpoolen.com/)

The FBI Special Agent who investigated the Merlin leak, Ashley Hunt, testified on Wednesday.

Much of the evidence she entered into the record pertained to the (remarkably limited) phone records between James Risen and Jeffrey Sterling between 2003 and 2007. While there were longer calls when Sterling lived in Missouri in 2004, before Risen went to the CIA with a story he claimed was ready to publish in April 2003, there were just a few minutes of conversation between Risen and Sterling.

One of the last things the government did while Special Agent Hunt was on the stand, however, was enter Stipulation 12, which entered phone records she had identified that took place between Jeffrey Sterling and another journalist. The records dated to around April 2003, but they were all very limited in length and some were even placed to the 800-number for the reporter’s newspaper.

The reporter in question was Ronald Kessler, who was then with the Los Angeles Times.

Kessler was also, at that time, finishing up a book, CIA at War (which would be released in October 2003), that according to the Senate Intelligence Committee Torture Report,  was “blessed” by George Tenet and completed with the “assistance” of the CIA.

In seeking to shape press reporting on the CIA’s Detention and Interrogation Program, CIA officers and the CIA’s Office of Public Affair (OPA) provided unattributed background information on the program to journalists for books, articles, and broadcasts, including when the existence of the CIA’s Detention and Interrogation Program was still classified. When the journalists to whom the CIA had provided background information published classified information, the CIA did not, as a matter of policy, submit crime reports. For example, as described in internal emails, the CIA’s [redacted] never opened an investigation related to Ronald Kessler’s book The CIA at War, despite the inclusion of classified information, because “the book contained no first time disclosures,” and because “OPA provided assistance with the book.” Senior Deputy General Counsel John Rizzo wrote that the CIA made the determination because the CIA’s cooperation with Kessler had been “blessed” by theCIA director. [footnotes omitted]

The Senate Torture Report went on to enumerate the inaccurate information Kessler had reported that CIA officials were also spreading. The report also explained that CIA “cooperated” with another Kessler book in 2007.

In other words, over the period of at least 4 years that coincided with the Merlin investigation, Ronald Kessler was considered by the CIA to be one of the most amenable reporters to CIA propaganda, all the way up to George Tenet.

Kessler was, according to the Torture Report, a guy the CIA would reach out to to spread their propaganda.

And that’s the best the government could do as far as implicating Jeffrey Sterling in speaking with reporters other than James Risen.

Government Tries to Convict Jeffrey Sterling for Retroactively Classified Documents about Rotary Phones

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Watercolor of Sterling

Courtroom sketch by Debra Van Poolen (http://www.debvanpoolen.com/)

After a week of ominous language about the dangers of leaking classified documents, the 14 jurors in the Jeffrey Sterling trial Tuesday got their first look at purportedly classified documents.

Martha Lutz, the CIA’s Chief of Litigation Support and the bane of anyone who has FOIAed the CIA in the last decade, was on the stand, a tiny woman with a beehive hairdo and a remarkably robust voice. After having Lutz lay out the Executive Orders that have governed classified information in the last two decades and what various designations mean, the government introduced four documents into evidence — three under the silent witness rule — and showed them to Lutz.

“When originally classified were these documents properly classified as secret,” the prosecution asked of the three documents.

“They weren’t,” Lutz responded. [update: the transcript reflects Lutz saying these were properly classified secret]

“But they are now properly classified secret?”

“Yes,” Lutz answered.

A court officer handed out a packet of these same documents with bright red SECRET markings on the front to each juror (the government had tried to include such a warning on the binders of other exhibits, but the defense pointed out that nothing in them was actually classified at all). Judge Leonie Brinkema, apparently responding to the confused look on jurors’ faces, explained these were still-classified documents intended for their eyes only. “You’ll get the context,” Judge Brinkema added. “The content is not really anything you have to worry about.” The government then explained these documents were seized from Jeffrey Sterling’s house in Missouri in 2006. Then the court officer collected the documents back up again, having introduced the jurors to the exclusive world of CIA’s secrets for just a few moments.

On cross, however, the defense explained a bit about what these documents were. Edward MacMahon made it clear the date on the documents was February 1987 — a point which Lutz apparently missed. MacMahon then revealed that the documents explained how to use rotary phones when a CIA officer is out of the office. I believe the prosecution objected — so jurors can’t use MacMahon’s description in their consideration of how badly these documents implicate Sterling — but perhaps the improper description will help cue the jurors’ own understanding about what the documents they had glimpsed were really about, making it clear to them they’re being asked to convict a man because he possessed documents about using a rotary phone that the CIA retroactively decided were SECRET.

Along with these awesome secrets about rotary phone usage, the prosecution noted that Sterling also had a 1993 performance evaluation at his home in Missouri. Under cross, MacMahon got Lutz to correct her testimony that this PAR was not from when Sterling was a Case Officer — as she had originally explained — but from when he was a trainee. But Lutz insisted that the document would still have been secret if not redacted anyway because it would reveal the kind of trainees the CIA looks for.

You might be wondering how the government plans to use retroactively classified documents about rotary phones to convict Jeffrey Sterling for leaking details about an operation dealing nuclear blueprints to James Risen. Luckily, the government explained all that back in September 2011.

Remarkably, they argue that these documents seized from Sterling’s house in Missouri in 2006 are proof that he possessed classified documents in his house in Herndon, VA in 2003.

Although the uncharged classified documents were seized from the defendant’s residence in Missouri on October 5, 2006, the defendant had to have moved those documents from his residence in Herndon, Virginia to his residence in Missouri in August 2003. The defendant had no access to classified information while residing in Missouri, and no longer had access to any classified documents when the CIA terminated him on January 31, 2002.

Along with the FBI’s Agent’s hairdresser’s testimony, the government is offering these documents as “proof” that they’ve properly charged Sterling in Virginia and not, say, Missouri, where a judge is less likely to permit the government to wave around documents on rotary phones as if they’re an important secret.

The government also introduced these documents about rotary phone usage because — they readily admitted in that September 2011 motion —  that they were forced to do such things because they only have a circumstantial case showing that Sterling had a letter that got leaked to James Risen absent the journalist’s testimony (they submitted that motion at a time when Brinkema had limited Risen’s testimony).

The evidence of the defendant’s possession of the seized classified documents is necessary because the letter charged in Counts Three and Five no longer exists. Absent Risen’s testimony, the evidence of the defendant’s possession of the letter charged in Counts Three and Five is solely circumstantial, based largely on inferences drawn from the defendant’s involvement in Classified Program No. 1, his access to certain CIA cables containing drafts of the letter, and the small number of individuals who would have had access to a paper copy of the letter.

In other words, they’ve submitted these documents Sterling obviously got in the very early days of his CIA career to “prove” that he also had snuck a letter on the Merlin program out of the CIA in 2000 (after which point he lost access to the information) and sat on it until 2003, when he allegedly shared it with Risen.

That the government is doing so makes it all the more ridiculous that a number of CIA’s witnesses — including up to four who were themselves cleared into the Merlin program — were able to testify without answering questions about the classified documents they improperly brought home. Given that the CIA actually learned of those documents in real time, it’s likely they were a lot more interesting than instructions on how to dial a rotary phone. And following the government’s habit of making fevered inferences, their improper treatment of classified information should make them more likely candidates to be James Risen’s source than Jeffrey Sterling.

But instead, the government is arguing, in all seriousness, that Jeffrey Sterling should go to prison because of three documents on dialing a rotary phone dating to 1987.

Government Pioneers Hairdresser Venue-Shopping in Jeffrey Sterling Case

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CIA

Here’s my latest on the Jeffrey Sterling trial from ExposeFacts.org:

Coming back into the courtroom after a break in the Jeffrey Sterling trial this afternoon, I heard an odd conversation. Apparently the government had unsuccessfully tried to get the defense to stipulate that the hairdresser for the FBI officer who had investigated this case had read James Risen’s book, State of War, in the Eastern judicial district of Virginia, where the court is located.

“There is no hairdresser privilege,” the judge presiding over the case, Leonie Brinkema, ruled.

So after a surprisingly weak presentation of computer forensic evidence, the government then called the investigating FBI officer’s hairdresser, who I will refer to as Julia P (because why shouldn’t she get the same privacy protections all the CIA’s witnesses got?). She seemed unprepared for court testimony, dressed casually. But she was a welcome breath of fresh air from all the stern witnesses preaching national security we’ve seen in the trial so far.

“Hi!” she said in a high voice as she took the stand. She explained she’d been a hairdresser for 35 years (she looked far too young for that to be the case). Julia P then confirmed that she had read State of War.

“Yessir, every chapter.”

She went on to confirm that she had read the book in Alexandria, VA shortly after it came out and that she does not have a security clearance.

The government, you see, is trying to establish they have charged Jeffrey Sterling in the proper venue. If anything has so far been presented that ties the alleged crimes to the Eastern District of Virginia, it’s not apparently clear what that is. It may be that the government had intended to use Risen’s testimony to establish venue in CIA’s home judicial district, but even there, he lives in Maryland and his office in is District of Columbia, as the government had just stipulated.

So they called the investigative Special Agent’s hairdresser.

And citing no precedent for this means to establish venue for an espionage case, the prosecution got Julia P to testify she had read a nationally released book that disclosed classified information in the same city where the trial is taking place.

Judge Brinkema then interjected, “how did you obtain the book?” It might have been either Borders or Barnes & Noble, Julia P explained. When pressed, she said it was probably in Alexandria or Arlington.

But it might have been in Bowie, Maryland, because her boyfriend lives there.

As Julia P pointed out, there are Barnes & Nobles all over.

On cross-examination, the defense asked her to clarify this, whether she knew where she bought the book. “It was probably Virginia, but it might have been Bowie,” she repeated. “You don’t remember whether you bought the book in Virginia or Maryland?” the defense asked again to be sure.

When she was dismissed, Julia P responded with the same refreshing voice, “Thank you!”

Note, of a fairly large jury pool, not a single potential juror had read Risen’s book. But to Julia P’s great credit, she has.

I’m anticipating that the venue jury instructions are going to be mighty interesting.

The Jeffrey Sterling Trial: Merlin Meets Curveball

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Here’s my latest post  from the Jeffrey Sterling trial at ExposeFacts.org, I describe how a top CIA officer — one who works in counterproliferation — used “curveball unironically,” even while presenting information that raised new concerns for me about Operation Merlin.

English nuclear blueprints“Very often you get a curveball thrown at you.”

When Bob S, a longtime CIA operations manager working on Weapons of Mass Destruction described the ambiguity common on CIA operations as getting a “curveball” thrown at you in Wednesday’s testimony at the Jeffrey Sterling trial, he surely didn’t mean to reference the Iraqi fabricator who, under the pseudonym “Curveball,” lied about Saddam Hussein having mobile bioweapons labs, thereby playing a key role in CIA’s dodgy case to support the Iraq War.

Nevertheless, several people in the courtroom laughed that a senior CIA official working on WMD could ever use the term, Curveball, and not realize he was, at the same time, invoking one of CIA’s most embarrassing failures, one directly tied to Bob S’ work.

And while Bob S’ testimony made no mention of Iraq — at least not explicitly — his testimony did, at times, seem to confirm defense lawyer Edward MacMahon’s opening argument quip that the CIA was using this criminal case “to get its reputation back.” The better part of Wednesday’s testimony involved Bob S walking the court through one set of cables relating to the Merlin operation (though surely not all the ones pertaining to Zach W, the witness who lost his confidence when asked about Risen’s book on Tuesday), showing how slow and, the implication is, careful the operation was. At one point, as part of a very extended review of James Risen’s chapter on Operation Merlin stating which paragraphs Bob S claimed were true, which incorrect (though in some areas his claims about accuracy might be rebutted by the CIA cables), and which Bob S found to be “overstated,” the witness judged, “We have demonstrated that we did this very carefully.”

But even the timing of the operation raises questions about its efficacy. The CIA started this operation in summer 1996, at a time when (according to national lab scientist Walter C, who testified Wednesday) they believed Iran was a “nascent proliferator.” It took 9 months to reverse engineer a functional design from the intelligence a second Russian asset had provided, until April 1997. The national lab spent 8 months developing flaws and testing them, until late 1997. After that, a set of US experts “Red Teamed” the blueprints, looking for flaws; they only found 25% of the flaws but nevertheless were able to build something workable from the plans in 5 months, in May 1998. It then took over a year to get approval to use these things and get export control approval. There’s no reason to believe the Iranians could work as quickly as the US Red Team. Nevertheless, the US spent 3.5 years setting up the first offer for something that a Red Team was nevertheless able to use within 5 months.

Then there are really curious problems with the story, as told.

For example, according to Walter C and Bob S’ testimony, the CIA and national lab were very intent to build something that looked like a Russian schematic, complete with gaps in information that might arise from Russia’s compartmented nuclear development system (for some reason they had no concern that this would identify the other Russian asset involved in the operation, whose knowledge tracked that gap). In addition, purportedly, they were trying to hide that the Russian called Merlin at the trial — who had a post office box set up to correspond with potential targets, presumably in the US, and who emailed potential targets from the US — was in the US. In spite of both these details, however, they insisted on keeping the parts list — on what was supposed to be a Russian schematic reconstituted from a Russian lab — in English.

Under cross-examination Walter S admitted he had never seen a Russian schematic with English parts list. This led to a question from the defense about why the national lab had a Red Team whose sole job it was to find flaws in nuclear diagrams. “Why do you [meaning, presumably, the lab] have expertise in detecting flaws, all for deception?” The prosecution objected to this, the defense responded, “You opened the door,” but nevertheless Judge Brinkema sustained the objection after a lawyer’s conference. The CIA — or the nation’s weapons labs — have a system of Red Teams that test nuclear dodgy blueprints, but even though the government presented that information, the defense can’t force witnesses to explain why they have one.

The defense was more successful asking why the labs believed Iran had a fire-set program when, by 2007, the CIA judged (in a National Intelligence Estimate released to the public, though that was not explained to the jury) Iran had no nuclear weapons program. Expert Walter C said he was “only vaguely” aware of this assessment, which is rather incredible given the heated debate that ensued when the NIE judgement was released.

Within the context of the trial, perhaps this information didn’t raise real questions about what exactly the government believed it was doing (perhaps one of the plans was to give Iran a list of parts that intelligence agencies could then track the purchase of, which might be far easier to do if the parts are in the US). Perhaps all this (especially the unrebuttable claims about the accuracy of Risen’s reporting) is helping the CIA get its reputation back. But against the context of what else the public record shows CIA was doing at the time, it’s not clear how this restores CIA’s credibility on WMD.

For example, in late 2004, an officer also working in the counterproliferation division of CIA sued for wrongful termination, claiming that — starting in 2000 — his supervisors had ordered him to suppress intelligence because it conflicted with the Agency’s existing assessment of the country’s WMD program. While the earliest reporting on the suit — from none other than James Risen — made clear that some of this suppressed intelligence pertained to Iraq’s WMD program from the period leading up to the Iraq War, court documents filed after that 2007 NIE claim that the first report this former CIA officer’s supervisors asked him to suppress in 2000 pertained to Iran’s nuclear program, the same year as the Merlin operation.

Then there’s what has come to be known as the “laptop of death,” a laptop dealt to US intelligence in 2004 rather remarkably containing everything you’d need to claim Iran had a nuclear weapons program, including plans for a “detonation system.” Colin Powell rolled it out in 2004 as one of his last acts in the Bush Administration. Since then, the Iranians have been trying to prove it’s a fake, with increasing success of late. Nevertheless, that material has formed a significant part of the case supporting Iranian sanctions.

Finally, there’s another operation the CIA rolled out, in 2003, to “get its reputation back.” On June 25, 2003, on the evening before George Tenet had to testify to Congress about why the US had found no WMD in Iraq, CIA hailed the claims of an Iraqi nuclear scientist, Mahdi Obeidi, who claimed to have stashed a blueprint and working parts from an Iraqi centrifuge in a hole in his backyard since 1991. The story was riddled with internal contradictions, which didn’t stop Obeidi from having the almost unparalleled luck among Iraqi WMD scientists of settling in the vicinity of CIA headquarters. One of the oddest parts of Obeidi’s story is that the blueprints, purportedly developed in Iraq by Iraqis from German plans — which CIA briefly posted on its website, then took down — were in English.

On April 30, 2003, less than two months before CIA would roll out those nuclear blueprints in English (and at a time when US government officials were already working with Obeidi), Condoleezza Rice called New York Times‘ editors to the White House and persuaded them not to publish Risen’s story about Operation Merlin, in which (we now know) a Russian parts list rather curiously written in English were dealt to Iran back in 2000. Rice actually went further; she asked Times editor Jill Abramson to make Risen stop all reporting on this topic.

Which brings us to one more detail presented on Wednesday that may not actually help CIA get its reputation back. In 2011, the government hinted that the real problem with Risen’s story was that other US adversaries would learn that CIA was fronting a Russian scientist to deal them dodgy blueprints; Risen’s book does suggest the plan may have been used again. In testimony on Wednesday, Bob S confirmed that. This top counterproliferation official revealed that between 2001 and 2003, CIA had used the Russian dubbed Merlin to approach “other countries believed to be interested in WMD.” More troubling still, a March 11, 2003 cable introduced into evidence revealed that — after Iran had not taken the bait at all back in 2000 — CIA had started to try again with Merlin to reach out to Iran. In 2003, at a time when many worried an invasion of Iran would quickly follow the dodgy imminent invasion of Iraq, the CIA attempted to dump flawed nuclear blueprints into Iran’s hands via their asset, Merlin.

None of these other details will be presented to the jury, and even key details like the NIE judgment won’t come in as evidence with enough context for it to affect the jury’s deliberations in this case. But the way in which newly-revealed details about how Operation Merlin resonates with other dubious CIA claims made around the same time does present another likely motive, aside from the motive of revenge the government claims animated Sterling, to explain why leakers might go to James Risen in 2003 with concerns about the CIA operation.

In Risen’s affidavit to this court fighting his subpoena, he said he “made the decision to publish the information about Operation Merlin” because the case against Iraq “was based on flawed intelligence about Iraq’s non-existent weapons of mass destruction, including its supposed nuclear program.” He cited a 2005 report that “described American intelligence on Iran as inadequate to allow firm judgments about Iran’s weapons programs.” And he noted the “increasing speculation that the United States might be planning for a possible conflict with Iran, once again based on supposed intelligence concerning weapons of mass destruction.” Clearly, in Risen’s mind, this Iranian operation might tie into what he was learning and reporting about the Iraq debacle.

Again, none of this is likely to help Jeffrey Sterling. As Judge Leonie Brinkema noted yesterday, all the government has to do is prove Sterling is one of Risen’s sources, regardless of however many other sources he might have, motivated for whatever reason.

But the CIA seems to believe this tediously presented information helps it get its reputation back, helps explain the operation that appears so dubious in Risen’s book.

For listeners who know the full extent of CIA’s dodgy record on WMD, it does not.

Coverage from the Jeffrey Sterling Trial

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I’m covering the beginning of the Jeffrey Sterling trial this week with ExposeFacts.org. This post lays out the opening arguments from yesterday, showing how circumstantial the government’s case is. More interesting, if I do say so myself, is this post on how one of the CIA officers who testified yesterday started losing his cool as matters got to James Risen’s book.

Zach W — the third CIA officer, who played a key role in setting up Operation Merlin before he handed the Russian off to Sterling — came off less impressively. Because the public had no visual cues because he (like the other two officers) testified behind a screen, his voice and overly-helpful answers recalled Vizzini, the Princess Bride character who dies in a battle of wits. The government used Zach W to explain how Operation Merlin came about, to get him to deny having spoken with James Risen, and to disclaim any concerns about the operation, But on cross-examination, he hurt the government’s case in three ways:

  • He presented contradictory evidence about the Russian’s knowledge of the blueprints dealt to Iran
  • His demeanor started crumbling when the defense pointed out where he’d fit in Risen’s book
  • The defense demonstrated that in both functional position and language, Zach W was a closer fit to the focalization and language used in Risen’s book than Sterling is

[snip]

Zach W’s demeanor started as very confident and overly helpful. He always answered “yes” or “correct” to questions, and at one point got ahead of the prosecution’s questions, leading the defense to object. As someone who had been in the CIA since the 1980s, he had the air of telling how hard things used to be before Google.

But his confident demeanor started crumbling soon after the cross examination started. The government had ended its questioning by asking if he knew Risen. “I know who he is, I never talked to him,” Zach W answered. When asked again if he had ever talked to him, he answered, no, twice.

Then under cross-examination, the defense got him to repeat his description of how he worked with the Russian to make himself available to Iranians by sending letters. When Zach W was asked if he sent the Russian to conferences, he said he was reluctant to say without material in hand to check. The defense then asked when he read the book. Zach W sighed audibly. They walked through the passage describing a case officer working with the Russian to reach out to the Iranians. In response to a question about that, Zach W answered, for the first time, “mmm hmmm.” “I’m sorry, you have to say yes or no,” Judge Brinkema responded. You are that case officer being referenced, the defense asked. “To some degree it does,” Zach W responded, “it seems more precise in targeting, just saying.”

Then the defense led Zach W through how the blueprints were discussed, either as “blueprints,” “firing set,” or “fire set”  in the CIA cables and the book. “Firing set is something you’d use,” the defense asked after getting Zach W to say he didn’t know how the Russian described the part. “That’s what we were talking about,” Zach W responded. The defense pointed to another instance, “fire ring set.” For the second time, Zach W answered, “mmm hmmm.” “You have to say yes or no,” Judge Brinkema reminded again.

After laying out all the cables Zach W had written that use the same language that appears in the book, the defense then turned to the cable Zach W wrote about the meeting in San Francisco. He pointed to the description of Sterling, the Russian, and his wife, going to wine country. This was something the prosecution had said only Sterling knew about. When asked if the cable talked about wine country, Zach W once again answered “mmm hmmm.”

Today’s main witness, Bob S, tried to explain that Zach W would have had no way of knowing that the wine country trip went to Sonoma, though (as I’ll write later) he was not at all credible on that front.

Thus far, the government’s main witnesses aren’t coming off all that impressively.

The IOB Reports on the Internet Dragnet Violations: “Nothing to Report”

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I’ve been working through the NSA’s reports to the Intelligence Oversight Board. Given that we know so much about the phone and Internet dragnets, I have been particularly interested in how they got reported to the IOB.

By and large, though, they didn’t. Even though we know there were significant earlier violations (some of the phone dragnet violations appear in this timeline; there was an Internet violation under the first order and at least one more of unknown date), I believe neither gets any mention until the Q1 2009 report. These are on the government’s fiscal year calendar, which goes from October to September, so this report covers the last quarter of 2008. The Q1 2009 reports explains a few (though not the most serious) 2008-related phone dragnet problems and then reveals the discovery of the alert list, which technically happened in Q2 2009.

Now, it may be that the IOB received other notice of the earlier violations. Or it may be that the NSA still treated them under the “reported to the President” loophole created for Stellar Wind. (That loophole was still in the reports in 2013, so they could still be using it today!)

In any case, with the notice of the phone dragnet orders in Q1 2009, NSA also listed the Internet dragnet, but said it had nothing to report.

Before its discussion of the known systemic phone dragnet problems, the Q2 2009 report includes this violation which doesn’t appear in this form (it may well be described in different fashion) in the other phone dragnet discussions.

On 7 January 2009, while searching collection [redacted] NSA analysts found BR FISA data included in the query results. Of the [redacted] selectors used in queries, only [redacted] had been approved under the reasonable articulable suspicion (RAS) standard. Although the numbers were associated with a foreign target, the selectors had not been approved for call chaining in the BR FISA data. The analyst did not know that approval must be sought for BR FISA[redacted–note, not space] call chaining. No data was retained, and no reports were issued.

I find it interesting because that’s precisely where the problem with the phone dragnet stemmed from: BR FISA data had gotten thrown into the EO 12333 data without any technical controls or markings. Indeed, it’s possible this is how the phone dragnet problems were first discovered.

It then has a 3 paragraph description of the phone dragnet problems. Read more →

NSA Obfuscated to Congress about Back Door Searches in 2009

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The NSA got a lot of criticism for releasing its IOB reports on December 23, just as everyone was preparing for vacation. But there were three reports that — at least when I accessed the interface — weren’t originally posted: Q3 and Q4 2009 and Q3 2010 — all conveniently important dates for the Internet dragnet (I’ll have more on what they didn’t disclose soon).

Apparently those reports were added on New Year’s Eve Eve Eve, an even bigger wasteland for document dumps than Christmas Eve.

Screen Shot 2014-12-31 at 4.24.31 PM

In addition to details about what NSA did and didn’t reveal about the Internet and (to a lesser degree) phone dragnet, the Q3 report also claimed to rebut this June 16, 2009 Risen and Lichtblau article.

Screen Shot 2014-12-31 at 4.30.33 PM

The article pretty clearly reveals the outlines of what we’ve since learned to be big privacy problems behind NSA’s programs — definitely back door searches, and probably upstream collection.

Since April, when it was disclosed that the intercepts of some private communications of Americans went beyond legal limits in late 2008 and early 2009, several Congressional committees have been investigating. Those inquiries have led to concerns in Congress about the agency’s ability to collect and read domestic e-mail messages of Americans on a widespread basis, officials said. Supporting that conclusion is the account of a former N.S.A. analyst who, in a series of interviews, described being trained in 2005 for a program in which the agency routinely examined large volumes of Americans’ e-mail messages without court warrants. Two intelligence officials confirmed that the program was still in operation.

[snip]

A new law enacted by Congress last year gave the N.S.A. greater legal leeway to collect the private communications of Americans so long as it was done only as the incidental byproduct of investigating individuals “reasonably believed” to be overseas.

But after closed-door hearings by three Congressional panels, some lawmakers are asking what the tolerable limits are for such incidental collection and whether the privacy of Americans is being adequately protected.

“For the Hill, the issue is a sense of scale, about how much domestic e-mail collection is acceptable,” a former intelligence official said, speaking on condition of anonymity because N.S.A. operations are classified. “It’s a question of how many mistakes they can allow.”

[snip]

The N.S.A. is believed to have gone beyond legal boundaries designed to protect Americans in about 8 to 10 separate court orders issued by the Foreign Intelligence Surveillance Court, according to three intelligence officials who spoke anonymously because disclosing such information is illegal. Because each court order could single out hundreds or even thousands of phone numbers or e-mail addresses, the number of individual communications that were improperly collected could number in the millions, officials said.

[snip]

But even before that, the agency appears to have tolerated significant collection and examination of domestic e-mail messages without warrants, according to the former analyst, who spoke only on condition of anonymity.

He said he and other analysts were trained to use a secret database, code-named Pinwale, in 2005 that archived foreign and domestic e-mail messages. He said Pinwale allowed N.S.A. analysts to read large volumes of e-mail messages to and from Americans as long as they fell within certain limits — no more than 30 percent of any database search, he recalled being told — and Americans were not explicitly singled out in the searches.

Over and over, this report clearly describes the accessing of US person data, without warrants, that has been incidentally collected. Rush Holt — then leading an oversight investigation into the NSA — even goes on the record in the article.

The report helpfully includes the rebuttal NSA sent to Congress (starting at PDF 18). The rebuttal goes like this:

  • The NYT story made “it seem as if NSA is broadly irresponsible in executing its mission” under EO 12333 or FISA “The opposite is true.”
  • NSA recently identified compliance issues but these “accusations are far afield of the compliance matters” related to the metadata dragnets and other recent violations. [The NYT had never said they were related, and there’s no evidence Risen and Lichtblau knew of them, except insofar as they also finally confirmed that the hospital confrontation pertained to the Internet dragnet in this article.]
  • It is difficult to know what the NYT’s anonymous sources mean. [The rebuttal makes no mention of Holt’s on the record comments, or the obvious references to back door searches.]
  • Maybe the reference to the examination of US person content is a reference to David Faulk but those allegations are false as the NSA IG will soon report.
  • A largely redacted bullet seems to admit they suck in related emails, as alleged in the article.
  • “The article also identifies a 30% threshold for inclusion of U.S. person information within NSA databases. There is no truth to this statement.”  [Of course, that’s not what the article says, as the red text above makes clear — it talks about how much US person content a search may pull up, not how much is in the databases.]
  • The access of Bill Clinton’s email was in 1992 and it is used as an example in oversight training [which is what the article described — though the rebuttal makes it far more clear that this is an “about” search on what other people are saying about Clinton].

Read more →

No, the War in Afghanistan Did Not End

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Yesterday afternoon, an AP article proudly announced to us that the war in Afghanistan has ended:
AP hed

Unfortunately, the AP headline is total bullshit. There was indeed a ceremony in Kabul yesterday. And yes, it did mark (for the second time), the end of the international force called ISAF (International Security Assistance Force) assembled under NATO as the lead in the war in Afghanistan. The new NATO mission, dubbed Operation Resolute Support, also under NATO leadership, is proclaimed most often to consist only of training and support to Afghan forces who will do all the fighting.

The problem with that description is that it is a lie. Just over a month ago, Barack Obama “secretly” expanded the role of US troops remaining in Afghanistan:

President Obama decided in recent weeks to authorize a more expansive mission for the military in Afghanistan in 2015 than originally planned, a move that ensures American troops will have a direct role in fighting in the war-ravaged country for at least another year.

Mr. Obama’s order allows American forces to carry out missions against the Taliban and other militant groups threatening American troops or the Afghan government, a broader mission than the president described to the public earlier this year, according to several administration, military and congressional officials with knowledge of the decision. The new authorization also allows American jets, bombers and drones to support Afghan troops on combat missions.

In an announcement in the White House Rose Garden in May, Mr. Obama said that the American military would have no combat role in Afghanistan next year, and that the missions for the 9,800 troops remaining in the country would be limited to training Afghan forces and to hunting the “remnants of Al Qaeda.”

The decision to change that mission was the result of a lengthy and heated debate that laid bare the tension inside the Obama administration between two often-competing imperatives: the promise Mr. Obama made to end the war in Afghanistan, versus the demands of the Pentagon that American troops be able to successfully fulfill their remaining missions in the country.

But to AP, the only message worthy of being in their headline and lede paragraph is that the war has ended:

The war in Afghanistan, fought for 13 bloody years and still raging, came to a formal end Sunday with a quiet flag-lowering ceremony in Kabul that marked the transition of the fighting from U.S.-led combat troops to the country’s own security forces.

The reader has to hang in there for another dozen paragraphs or so before reaching the admission of the expanded role of US troops and the reason for that expansion:

Obama recently expanded the role of U.S. forces remaining in the country, allowing them to extend their counter-terrorism operations to the Taliban, as well as al-Qaida, and to provide ground and air support for Afghan forces when necessary for at least the next two years.

In a tacit recognition that international military support is still essential for Afghan forces, national security adviser Mohammad Hanif Atmar told the gathered ISAF leaders: “We need your help to build the systems necessary to ensure the long-term sustainability of the critical capabilities of our forces.”

More than ten years after starting our “training” mission, Afghan troops remain unable to defend the country on their own and must rely on US troops.

Of course, the military knows that they have this expanded role. Here is the video the military provided on the transition ceremony:

Note that at around 38 seconds, the narrator says “combat by American forces on counterterrorism operations will continue”. You can bet they will.

Oh, and for a righteous rant on this whole charade, scroll back to yesterday on James Risen’s Twitter feed.

Cuba Libre! A Momentous Shift in Relations

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Without any question, the news of the day is the direct turnabout in relations between the United States and Cuba announced this morning. There is a rather long list of areas in which many people, including me, have profound disappointment with Barack Obama over. Lack of accountability for torture is but the latest and greatest in the news consciousness of the attuned public. But today is not such a day; today Barack Obama has risen to at least part of his once heralded promise. Today, Mr. Obama has my love and affection. Today is one of the type and kind of foreign policy, whether toward middle east or other global neighbors, moments promised in Cairo and rarely, if ever, fulfilled in tangible deeds instead of words. So, today, sincere thanks and appreciation to President Obama.

Here are the basics from the AP:

The United States and Cuba have agreed to re-establish diplomatic relations and open economic and travel ties, marking a historic shift in U.S. policy toward the communist island after a half-century of enmity dating back to the Cold War, American officials said Wednesday.

The announcement came amid a series of sudden confidence-building measures between the longtime foes, including the release of American prisoner Alan Gross, as well as a swap for a U.S. intelligence asset held in Cuba and the freeing of three Cubans jailed in the U.S.

President Barack Obama and Cuban President Raul Castro were to separately address their nations around noon Wednesday. The two leaders spoke by phone for more than 45 minutes Tuesday, the first substantive presidential-level discussion between the U.S. and Cuba since 1961.

Wednesday’s announcements followed more than a year of secret talks between U.S. and Cuban officials in Canada and the Vatican. U.S. officials said Pope Francis was personally engaged in the process and sent separate letters to Obama and Castro this summer urging them to restart relations.

This news alone would have constituted something earth shattering, but there is much more than just that. In fact, the AP laid out the merest of backgrounds with that opening. There is much, much, more. I have the official press release, and Read more →

Shorter the Neocons: Let Our General Go!

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Neocon scribes Eli Lake and Josh Rogin published a piece asserting that the man whose COIN theories failed in 3 different war theaters is making a comeback undermined only by his extramarital affair.

By all outward appearances, David Petraeus appears to be mounting a comeback. The former general landed a job at powerhouse private-equity firm KKR, has academic perches at Harvard and the University of Southern California and, according to White House sources, was even asked by the President Barack Obama’s administration for advice on the fight against Islamic State. Yet it turns out that the extramarital affair that forced him to resign as director of the Central Intelligence Agency is still hanging over him.

Yet that’s not actually what their article describes. Instead, it explores why it is that the FBI investigation into David Petraeus for leaking information to his mistress, not fucking her, is ongoing.

Curiously, these two journalists exhibit no shred of curiosity about why the GOP Congress continues to investigate the Benghazi attack, an investigation that started exactly contemporaneously with the Petraeus leak investigation — or, for that matter, why all the investigations have avoided questions about Petraeus’ training failures in Libya.

Instead, they see in this particular 2 year counterintelligence investigation a conspiracy to silence the fine General.

[Retired General Jack] Keane questions whether the Petraeus FBI probe lasting this long may be driven by something other than a desire to investigate a potential crime. “It makes you wonder if there is another motivation to drag an investigation out this long,” he said.

[snip]

Petraeus allies both inside and outside the U.S. intelligence community and the military express a concern that goes beyond a criminal probe: that the investigation has caused Petraeus to trim his sails — that one of the most informed and experienced voices on combating terrorism and Islamic extremism is afraid to say what he really thinks, a sharp juxtaposition to Bob Gates and Leon Panetta, two former defense secretaries who have not been shy about criticizing Obama’s national security team.

[snip]

But what does seem surprising, to many who know and have worked with him, is that the views he has been expressing are so at odds with what he has said and implied in the past.

For example, when Petraeus was inside Obama’s administration in his first term, he advocated for more troops inside Afghanistan and made the case for arming Syrian moderate forces. But when asked this summer about that effort, Petraeus demurred and focused on Obama’s new $500 million initiative in 2014 to train Syrian rebels. “I strongly support what’s being done now,” he said. “Half a billion dollars is a substantial amount of resourcing to train and equip.”

Petraeus’s rhetoric on Iraq and Syria differs sharply not only from his past positions, but from that of many retired generals of his generation and of his biggest supporters.

To support their conspiracy theory, they not only cite noted leaker Pete Hoekstra, but Lake and Rogin ignore a whole load of other details, such as how long leak investigations normally take. Even the investigation into and punishment of Sandy Berger — which they cite — took 18 months from leak to guilty plea, plus another two years until he relinquished his license. The investigation into Donald Sachtleben — or rather, the UndieBomb 2.0 leak that Sachtleben was singularly held responsible for — took 15 months, even with his computer  in custody and Sachtleben on bond most of that time. John Kiriakou was charged almost 4 years after his leaks, and two after Pat Fitzgerald was appointed to find a head for the CIA. Thomas Drake was indicted over 4 years after the investigation into Stellar Wind leaks started and almost 3 years after the FBI raided the homes of those associated with Drake’s whistleblowing. Jeffrey Sterling was indicted 7 years after FBI first started looking into leaks to James Risen.

Leak investigations can take a long time. That’s not a good thing, as they leave the targets of those investigations in limbo through that entire time. Petraeus is, comparatively, doing better off than most of the others I named above. Indeed, in paragraph 7, Lake and Rogin reveal that Petraeus, in fact, has gotten preferential treatment, in that his security clearance hasn’t been stripped.

To wit: Petraeus is ostensibly being investigated for mishandling classified material and yet he retains his security clearance.

Even Hoss Cartwright had his security clearance stripped for allegedly leaking details of StuxNet to the press. Heck, based on this detail, one has just as much evidence to support a counter-conspiracy theory that Petraeus is getting lax treatment because he’s got damning information on Obama (not one I’m adopting, mind you, but it does illustrate what one can do with an absence of evidence).

If warmongers like Jack Keane want to make drawn out leak investigations a cause, they would do well to make it a principle, not a singular conspiracy theory used to explain why David Petraeus isn’t being more critical of Obama’s efforts not to escalate into another failed counterinsurgency.

Is it possible, after all, that Petraeus is silent because he realizes what a hash he has made of the Middle East?