The Republicans have reverted to their natural “Benghazi witchhunt” form in the wake of Jim Comey’s announcement Tuesday that Hillary Clinton and her aides should not be charged, with Comey scheduled to testify before the House Oversight Committee at 10 AM.
Paul Ryan wrote a letter asking James Clapper to withhold classified briefings from Hillary. And the House Intelligence Committee is even considering a bill to prevent people who have mishandled classified information from getting clearances.
In light of the FBI’s findings, a congressional staffer told The Daily Beast that the House Intelligence Committee is considering legislation that could block security clearances for people who have been found to have mishandled classified information in the past.
It’s not clear how many of Clinton’s aides still have their government security clearances, but such a measure could make it more difficult for them to be renewed, should they come back to serve in a Clinton administration.
“The idea would be to make sure that these rules apply to a very wide range of people in the executive branch,” the staffer said. (Clinton herself would not need a clearance were she to become president.)
It’s nice to see the same Republicans who didn’t make a peep when David Petraeus kept — and still has — his clearance for doing worse than Hillary has finally getting religion on security clearances.
But this circus isn’t really going to make us better governed or safer.
So here are some fixes Congress should consider:
As I noted on Pacifica, Hillary’s real crime was trying to retain maximal control over her records as Secretary of State — probably best understood as an understandable effort to withhold anything potentially personal combined with a disinterest in full transparency. That effort backfired spectacularly, though, because as a result all of her emails have been released.
Still, every single Administration has had at least a minor email scandal going back to Poppy Bush destroying PROFS notes pertaining to Iran-Contra.
And yet none of those email scandals has ever amounted to anything, and many of them have led to the loss of records that would otherwise be subject to archiving and (for agency employees) FOIA.
So let’s add some teeth to these laws — and lets mandate and fund more rational archiving of covered records. And while we’re at it, let’s ensure that encrypted smart phone apps, like Signal, which diplomats in the field should be using to solve some of the communication problems identified in this Clinton scandal, will actually get archived.
Steve Vladeck makes the case for this:
Congress has only amended the Espionage Act in detail on a handful of occasions and not significantly since 1950. All the while, critics have emerged from all corners—the academy, the courts, and within the government—urging Congress to clarify the myriad questions raised by the statute’s vague and overlapping terms, or to simply scrap it and start over. As the CIA’s general counsel told Congress in 1979, the uncertainty surrounding the Espionage Act presented “the worst of both worlds”:
On the one hand the laws stand idle and are not enforced at least in part because their meaning is so obscure, and on the other hand it is likely that the very obscurity of these laws serves to deter perfectly legitimate expression and debate by persons who must be as unsure of their liabilities as I am unsure of their obligations.
In other words, the Espionage Act is at once too broad and not broad enough—and gives the government too much and too little discretion in cases in which individuals mishandle national security secrets, maliciously or otherwise.
To underscore this point, the provision that the government has used to go after those who shared classified information with individuals not entitled to receive it (including Petraeus, Drake, and Manning), codified at 18 U.S.C. § 793(d), makes it a crime if:
Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted … to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it …
This provision is stunningly broad, and it’s easy to see how, at least as a matter of statutory interpretation, it covers leaking—when government employees (“lawfully having possession” of classified information) share that information with “any person not entitled to receive it.” But note how this doesn’t easily apply to Clinton’s case, as her communications, however unsecured, were generally with staffers who were“entitled to receive” classified information.
Instead, the provision folks have pointed to in her case is the even more strangely worded § 793(f), which makes it a crime for:
Whoever, being entrusted with or having lawful possession or control of [any of the items mentioned in § 793(d)], (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed … fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer …
Obviously, it’s easy to equate Clinton’s “extreme carelessness” with the statute’s “gross negligence.” But look closer: Did Clinton’s carelessness, however extreme, “[permit] … [classified information] to be removed from its proper place of custody or delivered to anyone in violation of [her] trust”? What does that even mean in the context of intangible information discussed over email? The short answer is nobody knows: This provision has virtually never been used at least partly because no one is really sure what it prohibits. It certainly appears to be focused on government employees who dispossess the government of classified material (like a courier who leaves a satchel full of secret documents in a public place). But how much further does it go?
There’s an easy answer here, and it’s to not use Clinton as a test case for an unprecedented prosecution pursuant to an underutilized criminal provision, even if some of us think what she did was a greater sin than the conduct of some who have been charged under the statute. The better way forward is for Congress to do something it’s refused to do for more than 60 years: carefully and comprehensively modernize the Espionage Act, and clarify exactly when it is, and is not, a crime to mishandle classified national security secrets.
Sadly, if Congress were to legislate the Espionage Act now, they might codify the attacks on whistleblowers. But they should not. They should distinguish between selling information to our adversaries and making information public. They should also make it clear that intent matters — because in the key circuit, covering the CIA, the Pentagon, and many contractors, intent hasn’t mattered since the John Kiriakou case.
But part of that should also involve eliminating the arbitrary nature of the classification system.
I’ve often pointed to how, in the Jeffrey Sterling case, the only evidence he would mishandle classified information was his retention of 30-year old instructions on how to dial a rotary phone, something far less dangerous than what Hillary did.
Equally outrageous, though, is that four of the witnesses who may have testified against Sterling, probably including Bob S who was the key witness, have also mishandled classified information in the past. Those people not only didn’t get prosecuted, but they were permitted to serve as witnesses against Sterling without their own indiscretions being submitted as evidence. As far as we know, none lost their security clearance. Similarly, David Petraeus hasn’t lost his security clearance. But Ashkan Soltani was denied one and therefore can’t work at the White House countering cyberattacks.
Look, the classification system is broken, both because information is over-classified and because maintaining the boundaries between classified and unclassified is too unwieldy. That broken system is then magnified as people’s access to high-paying jobs are subjected to arbitrary review of security clearances. That’s only getting worse as the Intelligence Community ratchets up the Insider Threat program (rather than, say, technical means) to forestall another Manning or Snowden.
The IC has made some progress in recent years in shrinking the universe of people who have security clearances, and the IC is even making moves toward fixing classification. But the clearance system needs to be more transparent to those within it and more just.
Finally, Congress should try to put bounds to the currently arbitrary and unlimited authority Presidents claim over classified information.
As a reminder, the Executive Branch routinely cites the Navy v. Egan precedent to claim unlimited authority over the classified system. They did so when someone (it’s still unclear whether it was Bush or Cheney) authorized Scooter Libby to leak classified information — probably including Valerie Plame’s identity — to Judy Miller. And they did so when telling Vaughn Walker could not require the government to give al Haramain’s lawyers clearance to review the illegal wiretap log they had already seen before handing it over to the court.
And these claims affect Congress’ ability to do their job. The White House used CIA as cover to withhold a great deal of documents implicating the Bush White House in authorizing torture. Then, the White House backed CIA’s efforts to hide unclassified information, like the already-published identities of its torture-approving lawyers, with the release of the Torture Report summary. In his very last congressional speech, Carl Levin complained that he was never able to declassify a document on the Iraq War claims that Mohammed Atta met with a top Iraqi intelligence official in Prague.
This issue will resurface when Hillary, who I presume will still win this election, nominates some of the people involved in this scandal to serve in her White House. While she can nominate implicated aides — Jake Sullivan, Huma Abedin, and Cheryl Mills — for White House positions that require no confirmation (which is what Obama did with John Brennan, who was at that point still tainted by his role in torture), as soon as she names Sullivan to be National Security Advisor, as expected, Congress will complain that he should not have clearance.
She can do so — George Bush did the equivalent (remember he appointed John Poindexter, whose prosecution in relation to the Iran-Contra scandal was overturned on a technicality, to run the Total Information Awareness program).
There’s a very good question whether she should be permitted to do so. Even ignoring the question of whether Sullivan would appropriately treat classified information, it sets a horrible example for clearance holders who would lose their clearances.
But as far as things stand, she could. And that’s a problem.
To be fair, legislating on this issue is dicey, precisely because it will set off a constitutional challenge. But it should happen, if only because the Executive’s claims about Navy v. Egan go beyond what SCOTUS actually said.
Update, after I posted MK reminded me I meant to include this.
If Congress is serious about this, then they will mandate and fund State to fix their decades-long communications problems.
But they won’t do that. Even 4 years after the Benghazi attack they’ve done little to improve security at State facilities.
Update: One thing that came up in today’s Comey hearing is that the FBI does not routinely tape non-custodial interviews (and fudges even with custodial interviews, even though DOJ passed a policy requiring it). That’s one more thing Congress could legislate! They could pass a simple law requiring FBI to start taping interviews.
Though I agree with the general sentiment that Donald Trump should not be trusted with America’s nuclear codes, there’s a lot I loathed in Hillary’s foreign policy speech yesterday.
Her neat espousal of American exceptionalism, with the specter that another country could make decisions about our lives and jobs and safety, is especially rich coming from a woman who has negotiated several trade deals that give corporations the power to make decisions about our lives and jobs and safety.
I believe with all my heart that America is an exceptional country – that we’re still, in Lincoln’s words, the last, best hope of earth. We are not a country that cowers behind walls. We lead with purpose, and we prevail.
And if America doesn’t lead, we leave a vacuum – and that will either cause chaos, or other countries will rush in to fill the void. Then they’ll be the ones making the decisions about your lives and jobs and safety – and trust me, the choices they make will not be to our benefit.
That is not an outcome we can live with.
The rest of her riff on American exceptionalism — with weird claims like, “America’s network of allies is part of what makes us exceptional” and “Allies provide staging areas for our military” — is worth an entirely separate post.
Her cavalier invocation of dead bodies and prolonging depressions exhibits a lack of self-awareness.
I’m frankly baffled by her description of her plan to defeat ISIS, as well as her warnings elsewhere about allowing terrorists in Syria or emboldening ISIS, both of which past Hillary actions have done.
We need to lash up with our allies, and ensure our intelligence services are working hand-in-hand to dismantle the global network that supplies money, arms, propaganda and fighters to the terrorists. We need to win the battle in cyberspace.
And of course we need to strengthen our defenses here at home.
That – in a nutshell – is my plan for defeating ISIS.
Hillary never talks about how she’ll get the Saudis — one of those allies she wants to “lash up with” — to stop fostering terrorism. That seems like a first step.
I’m even more curious what she intends with “strengthening our defenses here at home,” especially coming just lines after she falsely claimed San Bernardino was an ISIS attack? We already arrest scores of people for their support for ISIS, for doing things like RTing ISIS propaganda. To do much more — and to find the San Bernardino couple before they attacked — would have required far more domestic spying. Is that what Hillary has planned?
But here’s the thing that most disturbs me about her hawkish speech. Note how she attacked Trump for his embrace of torture.
He has said that he would order our military to carry out torture and the murder of civilians who are related to suspected terrorists – even though those are war crimes.
So it really matters that Donald Trump says things that go against our deepest-held values. It matters when he says he’ll order our military to murder the families of suspected terrorists. During the raid to kill bin Laden, when every second counted, our SEALs took the time to move the women and children in the compound to safety. Donald Trump may not get it, but that’s what honor looks like.
Two times in a formal, pre-written speech, delivered with tele-prompters, Hillary claimed Trump had said he’d order our military to carry out torture and murder of civilians. But that’s not what he said. He spoke generally, and when speaking of torture he has talked about “interrogators,” without reference to agency. Sure, that could mean DOD (and some DOD interrogators did torture under George Bush). It could also mean the FBI, the agency which currently leads high value interrogations and which John Brennan has said must have its “own processes and procedures and laws that govern its activities,” separate from the techniques permitted in the Army Field Manual.
But the assumption of everyone listening to Donald Trump’s promise to torture was that he’d ask CIA to do the business. Both former CIA Director Michael Hayden and current CIA Director John Brennan thought that’s what he meant, anyway.
While Hillary was Secretary of State, the government killed the son of Anwar al-Awlaki, effectively murdering the family of a suspected (dead) terrorist.
It’s bad enough that she’s lecturing Trump about our deepest-held values. But she’s also not promising to the one thing she appears to be promising: refusing to order the CIA — not the military — not to torture.
On Sunday, former CIA Riyadh Station Chief John Brennan had a remarkable appearance on Meet the Press. A big part of it — the second to last thing he and Chuck Todd discussed — was Brennan’s argument against the release of the 28 pages (“so-called,” Brennan calls them) showing that 9/11 was facilitated by at least one Saudi operative.
Brennan opposes their release in three ways. First, he falsely suggested that the 9/11 Commission investigated all the leads implicating the Saudis (and also pretends the “so-called 28 pages” got withheld for sources and methods and not to protect our buddies).
Those so-called 28 pages, one chapter in this joint inquiry that was put out in December of 2002, was addressing some of the preliminary findings and information that was gathered by this joint commission within the Congress. And this chapter was kept out because of concerns about sensitive source of methods, investigative actions. The investigation of 9/11 was still underway in late 2002.
I’m quite puzzled by Senator Graham and others because what that joint inquiry did was to tee up issues that were followed up on by the 9/11 Commission, as well as the 9/11 Review Commission. So these were thoroughly investigated and reviewed. It was a preliminary review that put information in there that was not corroborated, not vetted and not deemed to be accurate.
The 9/11 Commission didn’t even look at NSA for intercepts Thomas Drake has said were there. Nor did it adequately investigate what now appears to be a Sarasota cell. How can Brennan claim the Commission investigated all these leads?
Brennan then slightly misstates how absolute was the 9/11 Commission judgement on Saudi involvement, such as it was.
The information in those 28 pages, you think, are inaccurate information? Everything that’s in there is false?
No, I think there’s a combination of things that is accurate and inaccurate. And I think the 9/11 Commission took that joint inquiry, and those 28 pages or so, and followed through on the investigation. And they came out with a very clear judgment that there was no evidence that indicated that the Saudi government as an institution, or Saudi officials individually, had provided financial support to Al Qaeda.
The 9/11 Commission report judged,
It does not appear that any government other than the Taliban financially supported al Qaeda before 9/11, although some government’s may have contained al Qaeda sympathizers who turned a blind eye to al Qaeda’s fundraising activities. Saudi Arabia has long been considered the primary source of al Qaeda funding, but we have found no evidence that the Saudi government as an institution or senior Saudi officials individually funded the organization. (This conclusion does not exclude the likelihood that charities with significant Saudi government sponsorship diverted funds to al Qaeda.)
That is, Brennan’s comment overstates whether any Saudi officials funded the attack, which the 9/11 Commission did not comment on (and the key paragraphs in underlying documents also remain classified).
Ultimately, though, the (former) Riyadh Station Chief argues it would be “very, very inaccurate” if anyone were to suggest the Saudis were involved in 9/11.
Are you concerned that the release of those pages will unfairly put the relationship in a damaged position?
I think some people may seize upon that uncorroborated, un-vetted information that was in there, that was basically just a collation of this information that came out of F.B.I. files, and to point to Saudi involvement, which I think would be very, very inaccurate.
Remember, for at least 8 years after 9/11 (including in the 9/11 report), it was the judgement of the intelligence community that Saudis were still the biggest funders for Al Qaeda. But the (former) Riyadh Station Chief argues it would be very, very inaccurate to suggest any Saudi involvement in the attack.
The whole thing was pathetic enough — Meet the Press propaganda worthy of Dick Cheney’s best exploitation of the form.
But it is all the more remarkable, coming as it did, after Brennan transitioned seamlessly from a victory lap about killing Osama bin Laden to “this new phenomenon of ISIL.”
You know, five years ago, I remember going to the White House and hearing cheers, hearing people gather in the streets of Washington, and it was happening in other cities. And there was a sense of relief. It was like this moment of, “Wow. Is this the end? Have we won whatever this was we were fighting, this war with Al Qaeda? Have we won?” Boy, it doesn’t feel that way five years later.
I remember that same evening. When I left that White House about midnight, it was as bright as day outside, and the chants of “U.S.A., U.S.A,” and, “C.I.A., C.I.A.” It was the culmination of a lot of very hard work by some very good people at C.I.A. and other agencies. And we have destroyed a large part of Al Qaeda. It is not completely eliminated, so we have to stay focused on what it can do. But now, with this new phenomenon of ISIL, this is going to continue to challenge us in the counterterrorism community for years to come.
I noted on Twitter during CIA’s propagandistic Twitter reenactment of their version of the bin Laden killing that, five years later, we’re still fighting the war against bin Laden. But Brennan wants you to forget that war, and pretend it’s all just ISIL.
A lot of people are pointing to John Brennan’s assurances that CIA won’t ever torture again as if it means anything (usually ignoring Brennan’s motivation from institutional preservation, not efficacy or morality or legality).
CIA Director John Brennan told NBC News in an exclusive interview that his agency will not engage in harsh “enhanced interrogation” practices, including waterboarding, which critics call torture — even if ordered to by a future president.
“I will not agree to carry out some of these tactics and techniques I’ve heard bandied about because this institution needs to endure,” Brennan said.
When asked specifically about waterboarding Brennan could not have been clearer.
“Absolutely, I would not agree to having any CIA officer carrying out waterboarding again,” he said.
There are a lot of reasons this doesn’t mean anything, starting with the fact that President Trump could easily fire Brennan and replace him with someone pro torture.
But it’s funny, too, because Brennan’s assurances about waterboarding would hold true even for the period when CIA was waterboarding detainees. Because CIA officers didn’t do the waterboarding.
As a reminder, at least four detainees were known to be waterboarded under the Gloves Come Off Memorandum of Notification. The first, Ibn Sheikh al-Libi, was waterboarded by Egyptian intelligence, though with Americans present.
The others were waterboarded as part of torture led by Mitchell and Jessen, who were not CIA officers, but instead contractors. CIA officers were definitely involved in that torture (as they were present for our outsourced Egyptian torture). But the torture was technically done by contractors.
Don’t get me wrong: CIA officers did engage in a whole lot of torture directly.
But Brennan’s squirmy language should only emphasize the fact that even when CIA was in the business of waterboarding, CIA officers didn’t do the waterboarding. So Brennan’s guarantees that CIA officers won’t do so in the future are pretty meaningless guarantees.
It has been clear for several years now that 60 Minutes has become a propaganda vehicle for the intelligence community (post, post, post). So it was unsurprising that John Brennan was given an opportunity to fearmonger last night without pesky people like Ron Wyden around pointing out that CIA itself poses a threat, even according to the terms laid out by the Intelligence Community.
I find the timing and content of John Brennan’s appearance of note.
The first segment (indeed the first words!) of the appearance did two things: first conflate ISIS-inspired attacks with ISIS-directed ones to suggest the terrorist organization might strike in the US.
Scott Pelley: Is ISIS coming here?
John Brennan: I think ISIL does want to eventually find it’s, it’s mark here.
Scott Pelley: You’re expecting an attack in the United States?
John Brennan: I’m expecting them to try to put in place the operatives, the material or whatever else that they need to do or to incite people to carry out these attacks, clearly. So I believe that their attempts are inevitable. I don’t think their successes necessarily are.
Here’s how the global threat testimony from last week, which really serves as temporal justification for Brennan’s appearance, carried out a similar though more nuanced conflation of ISIS’ aspirations with the aspirational plots here in the US.
The United States will almost certainly remain at least a rhetorically important enemy for most violent extremists in part due to past and ongoing US military, political, and economic engagement overseas. Sunni violent extremists will probably continually plot against US interests overseas. A smaller number will attempt to overcome the logistical challenges associated with conducting attacks on the US homeland. The July 2015 attack against military facilities in Chattanooga and December 2015 attack in San Bernardino demonstrate the threat that homegrown violent extremists (HVEs) also pose to the homeland. In2014, the FBI arrested approximately one dozen US-based ISIL supporters, in 2015, that number increased to approximately five dozen arrests. These individuals were arrested for a variety of reasons, predominantly for attempting to provide material support to ISIL.
Both Brennan and the threat testimony slide carefully from ISIS overcoming the logistical problems to attack themselves with attacking here to the ISIS-inspired far smaller attacks.
After having suggested ISIS wants to attack the US, Pelley then led Brennan to overstate the degree to which the Paris attackers hid behind encryption.
Scott Pelley: What did you learn from Paris?
John Brennan: That there is a lot that ISIL probably has underway that we don’t have obviously full insight into. We knew the system was blinking red. We knew just in the days before that ISIL was trying to carry out something. But the individuals involved have been able to take advantage of the newly available means of communication that are–that are walled off, from law enforcement officials.
Scott Pelley: You’re talking about encrypted Internet communications.
John Brennan: Yeah, I’m talking about the very sophisticated use of these technologies and communication systems.
From all the reports thus far, ISIS achieved what little obscurity they had primarily through burner devices, not through encryption (not to mention the fact that French authorities got an encryption key from someone who had decided against carrying out an ISIS attack the summer before this attack). And while Jim Comey revealed that FBI had not yet cracked one of several phones used by the San Bernardino attackers (who were not directed by ISIS and may have only invoked it for their own obscurantist purposes), the threat testimony pointed to social media as as big a concern as encryption (most of what ISIS uses is fairly weak).
Terrorists will almost certainly continue to benefit in 2016 from a new generation of recruits proficient in information technology, social media, and online research. Some terrorists will look to use these technologies to increase the speed of their communications, the availability of their propaganda, and ability to collaborate with new partners. They will easily take advantage of widely available, free encryption technology, mobile-messaging applications, the dark web, and virtual environments to pursue their objectives.
Finally — still in the first segment!!! — Pelley invites Brennan to suggest that limited reports that ISIS has used chemical weapons in Syria mean they might use them here.
Scott Pelley: Does ISIS have chemical weapons?
John Brennan: We have a number of instances where ISIL has used chemical munitions on the battlefield.
Scott Pelley: Artillery shells.
John Brennan: Sure. Yeah.
Scott Pelley: ISIS has access to chemical artillery shells?
John Brennan: Uh-huh (affirm). There are reports that ISIS has access to chemical precursors and munitions that they can use.
The CIA believes that ISIS has the ability to manufacture small quantities of chlorine and mustard gas.
Scott Pelley: And the capability of exporting those chemicals to the West?
John Brennan: I think there’s always the potential for that. This is why it’s so important to cut off the various transportation routes and smuggling routes that they have used.
Compare Brennan’s suggestion that ISIS may be manufacturing CW with the threat testimony note that two people have been exposed to mustard gas, though with far more widespread allegations of such use.
We assess that non state actors in the region are also using chemicals as a means of warfare. The OPCW investigation into an alleged ISIL attack in Syria in August led it to conclude that at least two people were exposed to sulfur mustard. We continue to track numerous allegations ofISIL’s use of chemicals in attacks in Iraq and Syria, suggesting that attacks might be widespread.
Now, I’ll grant you that Brennan much more carefully dodges here than Dick Cheney ever used to. But it’s pure fear-mongering — especially in the wake of the Oregon standoff that makes it clear domestic extremists are not only every bit as motivated as ISIS wannabes, but better trained and equipped. And fear-mongering using Dick Cheney’s favorite techniques (albeit with the added kicker of crypto fear-mongering).
And it all happened as Brennan’s buddies the Saudis are pretending to (finally) join the fight against ISIS in what is a fairly transparent attempt to prevent Russian-backed Syrian forces from gaining a crucial advantage in Syria. That is, this fairly crass fear-monger is likely directed at Assad as much as it is ISIS.
Today was Global Threat day, when James Clapper testifies before various committees in Congress and Ron Wyden asks uncomfortable questions (today, directed exclusively at John Brennan). I’ll have a few posts about the hearings (in Senate Armed Services and Senate Intelligence Committees) and Clapper’s testimony, the SASC version of which is here.
One interesting detail in Clapper’s testimony comes in the several paragraph section on Infrastructure within a larger section on “Protecting Information Resources.” Here’s how the testimony describes the Juniper hack.
A major US network equipment manufacturer acknowledged last December that someone repeatedly gained access to its network to change source code in order to make its products’ default encryption breakable. The intruders also introduced a default password to enable undetected access to some target networks worldwide.
There’s no discussion of how many Federal agencies use Juniper’s VPN, nor of how this must have exposed US businesses (unless the NSA clued them into the problem). And definitely no discussion of the assumption that NSA initially asked for the back door that someone else subsequently exploited.
More importantly, there’s no discussion of the cost of this hack, which I find interesting given that it may be an own goal.
As a number of outlets have reported, the Second Circuit last month upheld the government’s effort to keep a March 29, 2002 OLC memo pertaining to targeted killing secret; the opinion was unsealed yesterday. The government is probably doing so to keep changes in their rationale for why assassinations don’t violate the prohibition on assassination in EO 12333 secret.
The judges on the panel — especially Judge Jon Normand, who wrote the opinion — had pushed during an ex parte hearing in June to release language in that earlier memo because the dog & pony show around drone strikes in 2012 to 2013 had used closely related language. But after some more secret briefing, the court decided the application of EO 12333 was different enough such that it remained properly protected.
It seems highly likely the specific part of EO 12333 under discussion pertains to the assassination ban. Between the earlier hearing and the opinion, the court pointed to language in the March 25, 2010 Harold Koh speech, the March 5, 2012 Eric Holder speech, and the April 30, 2012 John Brennan speech on targeted killing (they also pointed to two Panetta comments). Each of the cited speeches discusses the assassination ban — and little else that might directly pertain to EO 12333, besides just generally covert operations authorized under Article II. There’s this language in Koh’s speech.
Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”
This language in Holder’s speech,
Some have called such operations “assassinations.” They are not, and the use of that loaded term is misplaced. Assassinations are unlawful killings. Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.
And this language in Brennan’s speech.
In this armed conflict, individuals who are part of al-Qa’ida or its associated forces are legitimate military targets. We have the authority to target them with lethal force just as we targeted enemy leaders in past conflicts, such as German and Japanese commanders during World War II.
But even though all these public speeches commented on this interpretation of the assassination ban, the 2nd Circuit still permitted the government to shield the earlier memo.
The transcript of the June ex parte hearing reveals one explanation for that: the earlier memo was a “far broader interpretation” of the issue.
Although the district court noted that the OLC-DOD Memorandum released by this Court contained a “brief mention” of Executive Order 12,333, the district court concluded that the analysis in the March 2002 Memorandum is significantly different from any legal analysis that this Court held has been officially disclosed and for which privilege has been waived.
In other words, while the earlier memo discusses the same aspect of EO 12333 as these public speeches (again, the assassination ban is by far the most likely thing), the earlier memo uses significantly different analysis, and so it may be hidden.
The June transcript also reveals that OLC lawyers reviewed and wrote on the 2002 memo at a later time — the implication being that someone in OLC reviewed the earlier memo in 2010 when writing the Awlaki one (and curiously, that hard copy with handwritten notes is the only one DOJ claims it can find).
There are two things I find increasingly interesting about this earlier memo about EO 12333 — including at least one part presumably about the assassination ban. First, the implication that one of the lawyers reviewing it in 2010 saw the need to write a new memo (perhaps seeing the need to clean up yet more crazy John Yoo language? who knows). As I repeat endlessly, we know there’s a memo of uncertain date in which Yoo said the President could pixie dust the plain language of EO 12333 without changing the public language of it, and it’s possible this is what that memo did (though the President was clearly pixie dusting surveillance rules).
But I’m also interested in the date: March 29, 2002. The day after we captured Abu Zubaydah (who, at the time, top officials at least claimed to believe was a top leader of al Qaeda). The SSCI Torture Report made it clear the CIA originally intended to disappear detainees. Were they planning to execute them? If so, what stopped things?
In any case, CIA won its battle to hide this earlier discussion so we may never know. But it appears that DOJ may have felt the need to think thing through more seriously before drone assassinating a US citizen. So there is that.
I noted the other day that at a pre-scheduled appearance Monday, Josh Rogin cued John Brennan to explain how the Paris attack happened without warning. In my opinion, the comment has been badly misreported as an indictment solely of Edward Snowden (though it is that) and encryption. I’ve put the entire exchange below but the key exchange was this:
And as I mentioned, there are a lot of technological capabilities that are available right now that make it exceptionally difficult, both technically as well as legally, for intelligence and security services to have the insight they need to uncover it. And I do think this is a time for particularly Europe, as well as here in the United States, for us to take a look and see whether or not there have been some inadvertent or intentional gaps that have been created in the ability of intelligence and security services to protect the people that they are asked to serve. And in the past several years because of a number of unauthorized disclosures and a lot of handwringing over the government’s role in the effort to try to uncover these terrorists, there have been some policy and legal and other actions that are taken that make our ability collectively internationally to find these terrorists much more challenging. And I do hope that this is going to be a wake-up call, particularly in areas of Europe where I think there has been a misrepresentation of what the intelligence security services are doing by some quarters that are designed to undercut those capabilities.
Brennan talks about technology that makes it difficult technically and legally to uncover plots. Encryption is a technical problem — one the NSA has proven its ability to overcome — that might be called a legal one if you ignore that NSA has the ability to overcome the lack of a legal requirement to provide back doors. But I agree this passage speaks to encryption, if not other issues.
In the next sentence, though, he talks about inadvertent or intentional gaps created “particularly in Europe.” He talks about plural unauthorized disclosures — as I noted, Josh Rogin’s own disclosure that the US had broken AQAP’s online conferencing technique may have been more directly damaging than most of Snowden’s leaks — and “handwringing.” Those have led to “policy and legal and other actions” that have made it harder to find terrorists. In the next sentence, Brennan again emphasizes that “particularly in areas of Europe,” there needs to be a “wake-up call” because “there has been a misrepresentation” of what the spooks are doing, which he suggests was deliberately “designed to undercut those capabilities.”
So the paragraph where he speaks of these problems, he twice emphasizes that Europe in particular needs to adjust its approach.
Last I checked, Europe didn’t pass USA Freedom Act (which would not, in any way, have restricted review of Parisian targeters). Some countries in Europe are more vigorously considering limits on encryption, but those would be just as ineffective as eliminating the code that’s already out there.
What Europe has done, however, is make it harder for our PRISM providers to share data back and forth between Europe (and with providers considering moving servers to Europe, it will raise new questions about the applicability of PRISM for that data). And Europe (not just Europe, but definitely including Europe) has created a market need for US tech companies to distance themselves from the government.
And in the case of Germany, politicians have been investigating how much its BND has done for NSA, and especially which impermissible German people and companies were targeted as part of the relationship. I noted that Brennan raised similar issues just days after the BND investigation turned scandalous in March, and recent revelations have raised new pressure on BND.
With that in mind, in particular, consider what one of the more responsible reports on Brennan’s speech, that of Shane Harris, focused on — terrorists’ use of Berlin headquartered social messaging app Telegram. If terrorists were using WhatsApp (which a lot of the fearmongering focused on), the metadata, at least, would be available via Facebook. But since Telegram is not a US company, it cannot be obliged under Section 702 of FISA, and that surely creates just the kind of gap Brennan was talking about.
Since Brennan’s speech, Telegram has started deleting the special channels set up by ISIS to communicate.
I’m sure Brennan is complaining about encryption and if he can get Congress to force domestic back doors, I’m sure he will (though ISIS reportedly shies away from Apple products, so forcing Apple to give up its encrypted iMessage won’t help track down ISIS). But his speech seemed focused much more intently on ways in which, in the aftermath of the Snowden leaks, Europeans have opportunistically localized data and, in the process, made that data far less accessible to the NSA. Brennan, as I made clear in March, definitely would prefer the Europeans rely on Americans for their SIGINT (and in the process agree to some inappropriate spying in their home country), and the gap created by terrorists’ reliance on Telegram is one way to exert pressure on that point.
Josh Rogin is among many journalists who covered John Brennan’s complaints about how “a number of unauthorized disclosures”and hand-wringing about our surveillance capabilities this morning (which was a response to Rogin asking “what went wrong” in Paris in questions).
But Brennan also said that there had been a significant increase in the operational security of terrorists and terrorist networks, who have used new commercially available encryption technologies and also studied leaked intelligence documents to evade detection.
“They have gone to school on what they need to do in order to keep their activities concealed from the authorities,” he said. “I do think this is a time for particularly Europe as well as the U.S. for us to take a look and see whether or not there have been some inadvertent or intentional gaps that have been created in the ability of intelligence services to protect the people that they are asked to serve.”
The FBI has said that Internet “dark spaces” hinder monitoring of terrorism suspects. That fuels the debate over whether the government should have access to commercial applications that facilitate secure communications.
Brennan pointed to “a number of unauthorized disclosures” over the past several years that have made tracking suspected terrorists even more difficult. He said there has been “hand wringing” over the government’s role in tracking suspects, leading to policies and legal action that make finding terrorists more challenging, an indirect reference to the domestic surveillance programs that were restricted after leaks by Edward Snowden revealed their existence.
I find it interesting that Rogin, of all people, is so certain that this is an “indirect reference to the domestic surveillance programs that were restricted after leaks by Edward Snowden revealed their existence.” It’s a non-sensical claim on its face, because no surveillance program has yet been restricted in the US, though FBI has been prevented from using NSLs and Pen Registers to bulk collection communications. The phone dragnet, however, is still going strong for another 2 weeks.
That reference — as I hope to show by end of day — probably refers to tech companies efforts to stop the NSA and GCHQ from hacking them anymore, as well as European governments and the EU trying to distance themselves from the US dragnet. That’s probably true, especially, given that Brennan emphasized international cooperation in his response.
I’m also confused by Rogin’s claim Jim Comey said Tor was thwarting FBI, given that the FBI Director said it wasn’t in September.
Even more curious is that Rogin is certain this is about Snowden and only Snowden. After all, while Snowden’s leaks would give terrorists a general sense of what might not be safe (though not one they tracked very closely, given the Belgian Minister of Home Affair’s claim that they’re using Playstation 4 to communicate, given that one of Snowden’s leaks said NSA and CIA were going after targets use of gaming consoles to communicate at least as early as 2008).
But a different leak would have alerted terrorists that their specific communications techniques had been compromised. The leak behind this story (which was a follow-up on leaks to the NYT, McClatchy, and WaPo).
It wasn’t just any terrorist message that triggered U.S. terror alerts and embassy closures—but a conference call of more than 20 far-flung al Qaeda operatives, Eli Lake and Josh Rogin report.
The crucial intercept that prompted the U.S. government to close embassies in 22 countries was a conference call between al Qaeda’s senior leaders and representatives of several of the group’s affiliates throughout the region.
The intercept provided the U.S. intelligence community with a rare glimpse into how al Qaeda’s leader, Ayman al-Zawahiri, manages a global organization that includes affiliates in Africa, the Middle East, and southwest and southeast Asia.
Several news outlets reported Monday on an intercepted communication last week between Zawahiri and Nasser al-Wuhayshi, the leader of al Qaeda’s affiliate based in Yemen. But The Daily Beast has learned that the discussion between the two al Qaeda leaders happened in a conference call that included the leaders or representatives of the top leadership of al Qaeda and its affiliates calling in from different locations, according to three U.S. officials familiar with the intelligence. All told, said one U.S. intelligence official, more than 20 al Qaeda operatives were on the call.
Al Qaeda leaders had assumed the conference calls, which give Zawahiri the ability to manage his organization from a remote location, were secure. But leaks about the original intercepts have likely exposed the operation that allowed the U.S. intelligence community to listen in on the al Qaeda board meetings.
That story — by Josh Rogin himself! (though again, this was a follow-up on earlier leaks) — gave Al Qaeda, though maybe not ISIS, specific notice that one of their most sensitive communication techniques was compromised.
It’s really easy for journalists who want to parrot John Brennan and don’t know what the current status of surveillance is to blame Snowden. But those who were involved in the leak exposing the Legion of Doom conference call (which, to be sure, originated in Yemen, as many leaks that blow US counterterrorism efforts there do) might want to think twice before they blame other journalism.
Given two recent high profile hacks, the government needs to either do a better job of securing its data collection and sharing process, or presume people will get hurt because of it.
After the hackers Crackas With Attitude hacked John Brennan, they went onto hack FBI’s Deputy Director Mark Giuliano as well as a law enforcement portal run by the FBI. The hack of the latter hasn’t gotten as much attention — thus far, WikiLeaks has not claimed to have the data, but upon closer examination of the data obtained, it appears it might provide clues and contact information about people working undercover for the FBI.
Then, the hackers showed Wired’s Kim Zetter what the portal they had accessed included. Here’s a partial list:
Enterprise File Transfer Service—a web interface to securely share and transmit files.
Cyber Shield Alliance—an FBI Cybersecurity partnership initiative “developed by Law Enforcement for Law Enforcement to proactively defend and counter cyber threats against LE networks and critical technologies,” the portal reads. “The FBI stewards an array of cybersecurity resources and intelligence, much of which is now accessible to LEA’s through the Cyber Shield Alliance.”
IC3—“a vehicle to receive, develop, and refer criminal complaints regarding the rapidly expanding arena of cyber crime.”
Intelink—a “secure portal for integrated intelligence dissemination and collaboration efforts”
National Gang Intelligence Center—a “multi-agency effort that integrates gang information from local, state, and federal law enforcement entities to serve as a centralized intelligence resource for gang information and analytical support.”
RISSNET—which provides “timely access to a variety of law enforcement sensitive, officer safety, and public safety resources”
Malware Investigator—an automated tool that “analyzes suspected malware samples and quickly returns technical information about the samples to its users so they can understand the samples’ functionality.”
eGuardian—a “system that allows Law Enforcement, Law Enforcement support and force protection personnel the ability to report, track and share threats, events and suspicious activities with a potential nexus to terrorism, cyber or other criminal activity.”
While the hackers haven’t said whether they’ve gotten into these information sharing sites, they clearly got as far as the portal to the tools that let investigators share information on large networked investigations, targeting things like gangs, other organized crime, terrorists, and hackers. If hackers were to access those information sharing networks, they might be able to both monitor investigations into such networked crime groups, but also (using credentials they already hacked) to make false entries. And all that’s before CISA will vastly expand this info sharing.
Meanwhile, the Intercept reported receiving 2.5 years of recorded phone calls — amounting to 70 million recorded calls — from one of the nation’s largest jail phone providers, Securus. Its report focuses on proving that Securus is not defeat-listing calls to attorneys, meaning it has breached attorney-client privilege. As Scott Greenfield notes, that’s horrible but not at all surprising.
But on top of that, the Intercept’s source reportedly obtained these recorded calls by hacking Securus. While we don’t have details of how that happened, that does mean all those calls were accessible to be stolen. If Intercept’s civil liberties-motivated hacker can obtain the calls, so can a hacker employed by organized crime.
The Intercept notes that even calls to prosecutors were online (which might include discussions from informants). But it would seem just calls to friends and associates would prove of interest to certain criminal organizations, especially if they could pinpoint the calls (which is, after all, the point). As Greenfield notes, defendants don’t usually listen to their lawyers’ warnings — or those of the signs by the phones saying all calls will be recorded — and so they say stupid stuff to everyone.
So we tell our clients that they cannot talk about anything on the phone. We tell our clients, “all calls are recorded, including this one.” So don’t say anything on the phone that you don’t want your prosecutor to hear.
Some listen to our advice. Most don’t. They just can’t stop themselves from talking. And if it’s not about talking to us, it’s about talking to their spouses, their friends, their co-conspirators. And they say the most remarkable things, in the sense of “remarkable” meaning “really damaging.” Lawyers only know the stupid stuff they say to us. We learn the stupid stuff they say to others at trial. Fun times.
Again, such calls might be of acute interest to rival gangs (for example) or co-conspirators who have figured out someone has flipped.
It’s bad enough the government left OPM’s databases insecure, and with it sensitive data on 21 million clearance holders.
But it looks like key law enforcement data collections are not much more secure.