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Unconstitutional Surveillance & United States v. U.S. District Court: Who The Winner Is May Be A Secret – Part 1

[Given the current surveillance state situation in America, the Keith case, formally known as United States v. United States District Court, is one of the most important cases from our recent past. But I don’t really believe you can understand or know the law of a case, without really understanding the facts. The Keith case doesn’t have simple facts, but they are fascinating and instructive. So bear with me – this is going to take awhile, and will be laid out over a series of four posts. What follows today is Part I. – Mary]

It was a time of war. America had been attacked in the Gulf of Tonkin. The National Security Agency (NSA) and our military had reassured us this was true. Our national security apparatus, Congress and press had joined behind the office of the President to lead us into a series of forays (Vietnam, Laos, Cambodia) that would leave tens of thousands of American soldiers dead and many times that wounded physically or mentally, while at the same time decimating over three million Vietnamese and over a 1.5 million Laotians and Cambodians.

At home, we were working our way through the civil rights movement, dealing with the cold war and threats of Russian nuclear weapons and witnessing anti-war protests that left students dead and buildings bombed. Algeria was hosting U.S. fugitives from justice, Eldridge Cleaver and Timothy Leary, while Cuban connections were alleged to be behind much of the organized anti-war movement.

Court martial proceedings had begun for the My Lai killings with polls showing most of America objected to the trial. President Nixon would later pardon Lt. Calley for his role. A trial had also, briefly, seemed to be in the works for the “Green Beret Affair,” the killing of Thai Khac Chuyen by Green Berets running an intelligence program called Project GAMMA. The investigation began after one of the soldiers assigned to the Project became convinced that he was also being scheduled for termination. Charges in the Green Beret Affair would be dropped after the CIA refused to make personnel available, claiming national security privileges.

Against this backdrop, Nixon and his campaign manager – attorney general, John Mitchell (the only Read more

An Anonymous Government Official Doesn’t Want You to Know that Lockheed Works for NSA

Tomorrow and Wednesday, the WaPo will continue its series on the Intelligence Industrial Complex. It will describe the contractors in the BWI/Fort Meade area that contribute to the NSA’s surveillance programs. According to the DNI’s Director of Communications, that story will describe the contractors in the vicinity, but not say explicitly that those contractors clustered around Fort Meade are working for the NSA.

The Post advises that “links” between individual contractors and specific agencies have been deleted, although the Post will still cite contractors and their locations.

Here’s the WaPo’s description of how it acceded to spy officials’ requests not to include maps like this one–showing one of Lockheed Martin’s extensive locations in the neighborhood of Fort Meade (anyone who has taken the train to BWI will pass another of these locations)–in its database.

Because of the nature of this project, we allowed government officials to see the Web site several months ago and asked them to tell us of any specific concerns. They offered none at that time. As the project evolved, we shared the Web site’s revised capabilities. Again, we asked for specific concerns. One government body objected to certain data points on the site and explained why; we removed those items. Another agency objected that the entire Web site could pose a national security risk but declined to offer specific comments.

We made other public safety judgments about how much information to show on the Web site. For instance, we used the addresses of company headquarters buildings, information which, in most cases, is available on companies’ own Web sites, but we limited the degree to which readers can use the zoom function on maps to pinpoint those or other locations.

Nevertheless, an anonymous official–who sounds an awful lot like Acting Director of National Intelligence David Gompert did in his official statement–is already out bitching about the contractor database the WaPo published as part of this series.

The database the Washington Post compiled during its “Top Secret America” two year investigation is “troubling,” one administration official told me this morning, saying it could become a road map for adversaries – a charge reporter William Arkin denied on “GMA.”

“We’ve been through months now of negotiations and discussions with the government. I don’t think there is anything here that would do harm to national security,” Arkin told me. “And frankly I’m an American as well and I don’t want to do any harm to American national security.”

The official also told me that President Obama and his team are committed to intelligence reform — calling it a “central issue” – and said the system basically worked preventing another major attack and taking out 10 of the top 20 Al Qaeda leaders. But Arkin argued otherwise – saying it is important to counter what “the government would like to put out as the good news.”

Now, this anonymous official (who sounds like David Gompert did) may have been smart enough to know that George Stephanopoulos would obediently grant him anonymity to conduct the pushback ODNI was planning even before they read the article (nice stenography, Steph!). But he apparently believes our adversaries limit their research to the DeadTree press and couldn’t figure out that Lockheed Martin works for NSA (among other agencies) via other means.  This anonymous official apparently believes our adversaries couldn’t do what Tim Shorrock did when he established the ties between Lockheed and NSA.

NATIONAL SECURITY AGENCY. Lockheed Martin has extremely close and long-standing ties with the NSA. In the mid-1950s it built the U-2 spy plane that played a key role in the Cold War and conducted some of the NSA’s initial research in signals collection. “The U-2 has been the backbone of our nation’s airborne intelligence collection operations for several decades and continues to provide unmatched operational capabilities in support of Operation Enduring Freedom,” Lockheed Martin states in its 2008 annual report. The U-2 “is expected to continue to provide leading-edge intelligence collection capabilities for years to come.”

The company’s extensive contracts with the NSA first became public in 1997. That year, Margaret Newsham, a contract engineer working for Lockheed Space and Missile Corporation at an NSA listening post in the United Kingdom, disclosed to Congress the existence of Echelon. This global surveillance network is run by the NSA and its counterparts in Britain, Australia, New Zealand, and Canada. She made the disclosure after hearing NSA intercepts of international calls placed by Sen. Strom Thurmond, the conservative South Carolina Republican. Her revelations sparked a spate of Congressional inquiries into whether the NSA was illegally listening in on domestic conversations. The discussions, led by a Republican civil libertarian, Rep. Bob Barr of Georgia, presaged the intense debate that would follow the 2005 revelations about President Bush’s “Terrorist Surveillance Program.” In July 1998 a report commissioned by the European Parliament confirmed that, through Echelon, the United States, and its closest allies had the capability to intercept most European phone calls, emails, and data communications, as well as the technology to decode almost any encrypted communication. This revelation sparked deep suspicion in European capitals that NSA was using Echelon to capture European business intelligence and trade secrets and pass them to U.S. companies.

Under a contract signed in 2005, Lockheed Martin provides an integrated electronic security system to protect NSA facilities in the Washington area. A similar system is in place at the Pentagon and dozens of U.S. military facilities abroad.

And then there are the other ways to figure this out. I first copped on to Lockheed’s ties to NSA when I noted there seemed to be a closer tie between Lockheed campaign contributions and Democrats who voted in favor of retroactive immunity on the FISA Amendments Act than contributions from AT&T.

Of course, presumably this anonymous official does know that our adversaries are not as dumb as he claims.

Which suggests it’s not our adversaries the anonymous official is really worried about. God forbid the citizens of this country–the average readers of the WaPo rather than those with training in intelligence that makes such research a cinch–find out who has been analyzing all the phone data collected in the guise of counterterrrorism.

As April Strawberry Blossoms into Perfect Citizen

A number of you have asked what I make of Siobhan Gorman’s latest story describing a program called “Perfect Citizen” that aims to monitor and map out attempted cyber-intrusions of our critical infrastructure.

Before I say anything about the content of the story, I should note that the nuclear power plant control room depicted with the story–from the plant at Limerick, PA–is just a few miles from where I spend Christmas and about 25 miles from where my mom lives. Maybe that has affected my thoughts on the matter.

But, given what Gorman has reported, I’m not all that bugged about Perfect Citizen. Here’s the operative bit:

Intelligence officials have met with utilities’ CEOs and those discussions convinced them of the gravity of the threat against U.S. infrastructure, an industry specialist said, but the CEOs concluded they needed better threat information and guidance on what to do in the event of a major cyber attack.

Some companies may agree to have the NSA put its own sensors on and others may ask for direction on what sensors to buy and come to an agreement about what data they will then share with the government, industry and government officials said.

While the government can’t force companies to work with it, it can provide incentives to urge them to cooperate, particularly if the government already buys services from that company, officials said.

Perhaps I’m missing something, but it seems that a somewhat coercive but nevertheless voluntary monitoring of cybersecurity for things like the nuclear plant near my Aunt’s home isn’t such a bad thing. Perhaps an analogy is whether or not it’d be okay to monitor health professionals and first responders during an epidemic for signs of sickness, as one of the best ways to track and minimize the spread of the disease. Or better yet, whether or not it’d be okay to pressure oil companies to put monitors on their drilling platforms to make it easier for Department of Interior to keep track and prevent spills.

That said, I do have a number of questions.

First, the NSA has been very squirrely about whether or not Congress has been briefed on this. Read more

Google Boondoggle With No Such Agency

spy-who-loved-meEllen Nakashima has a startling, but I guess unsurprising, article in this morning’s Washington Post on internet giant Google’s new partnership with the NSA:

Under an agreement that is still being finalized, the National Security Agency would help Google analyze a major corporate espionage attack that the firm said originated in China and targeted its computer networks, according to cybersecurity experts familiar with the matter. The objective is to better defend Google — and its users — from future attack.

Google and the NSA declined to comment on the partnership. But sources with knowledge of the arrangement, speaking on the condition of anonymity, said the alliance is being designed to allow the two organizations to share critical information without violating Google’s policies or laws that protect the privacy of Americans’ online communications. The sources said the deal does not mean the NSA will be viewing users’ searches or e-mail accounts or that Google will be sharing proprietary data.

The article indicates Google initiated the matter by approaching the NSA after the recent discovery of intrusive attacks by Chinese interests last month, which is interesting in light of the fact Google made a point of publicly stating in 2008 they had never cooperated with the NSA on the Terrorist Surveillance Program.

Nakashima also notes that NSA is also soliciting involvement of the FBI and Department of Homeland Security. You have to wonder exactly what the FBI and DHS are going to lend that NSA cannot if this is truly just technical advice, because neither agency is particularly known for its geeky brilliance with computers. You would have to wonder is this is not a step in the direction of the “cyber protection” program the government has been hinting at initiating for some time now.

More from Nakashima and the Post:

“As a general matter,” NSA spokeswoman Judi Emmel said, “as part of its information-assurance mission, NSA works with a broad range of commercial partners and research associates to ensure the availability of secure tailored solutions for Department of Defense and national security systems customers.”

Despite such precedent, Matthew Aid, an expert on the NSA, said Google’s global reach makes it unique.

“When you rise to the level of Google . . . you’re looking at a company that has taken great pride in its independence,” said Aid, author of “The Secret Sentry,” a history of the NSA. “I’m a little uncomfortable with Google cooperating this closely with the nation’s largest intelligence agency, even if it’s strictly for defensive purposes.”

Mr. Aid isn’t the only one a little uncomfortable with this new spirit of cooperation between the world’s most spooky governmental spy agency and the world’s most ubiquitous information technology and database company. And so the descent down the slippery slope picks up a little more speed.

(Image courtesy of SearchEngineWatch.com, a very nice resource by the way)

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

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

General Scope

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

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

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

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

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

The Joint Inquiry and Mukasey’s Call

Alright. Glenn has me intrigued by Michael Mukasey’s story about an intercept that–if it had been disseminated–might have prevented 9/11. So I’m going to flog it for a couple more posts. As a reminder, here’s the story that Mukasey has apparently heard, Zelikow doesn’t recognize, and Conyers has not heard.

And before 9/11, that’s the call that we didn’t know about. We knew that there has been a call from someplace that was known to be a safe house in Afghanistan and we knew that it came to the United States. We didn’t know precisely where it went.

As I pointed out in this comment, Mukasey tells a similar (thought not exactly the same) story in his and Mike McConnell’s letter to Harry Reid listing which FISA amendments would have incurred a veto threat (I think this story was also actually used in the debate in the Senate, though that’s going to have to wait for a later post).

The Joint Inquiry has learned that one of the future hijackers communicated with a known terrorist facility in the Middle East while he was living the United States. The Intelligence Community did not identify the domestic origin of those communications prior to September 11, 2001, so that additional FBI inevstigative efforts could be coordinated.

Before moving on, note the key difference here: Mukasey’s weepy story has the person in the US receiving a call from an Afghan safe house. The Joint Inquiry was told the US person called the known terrorist facility. That may have import as we move forward–but for now, just keep in mind that little discrepancy.

Also note the reference is somewhat vague. When did this intercept come in? Which hijacker did it involve? Did the Joint Inquiry see the intercept itself, or did they just "learn" about it, as the passage implies?

To see if I could clarify those issues, I decided to look at the Joint Inquiry to see precisely what it said about this intercept that could have prevented 9/11 (see page 36 of the PDF). From the context, it is clear the members and staffers from both intelligence committees–who conducted this inquiry–believed that the NSA had all the legal authority it needed to collect this intercept.

Read more

Did Nacchio Lie, or Just Misunderstand?

The Rocky Mountain News has a good summary of the issues the Tenth Circuit will consider this week in Joseph Nacchio’s appeal. It’s worth reading the whole thing to get an idea of all the issues. But I’m most interested in the representation the RMN makes of the government’s claim regarding Nacchio’s claim that he lost business because he refused to wiretap Americans.

The judge should have let Nacchio present his classified, national security defense. Previous filings indicate Nottingham ruled the defense was irrelevant.

Defense argument

The CEO was optimistic about Qwest in early 2001 because he knew the company was in line to receive top-secret government contracts. Redacted court documents suggest Nacchio planned to argue that Qwest didn’t get the contracts because he refused to participate in a phone spying program.

Prosecution argument

Nacchio’s version of events was "a lie," said First Assistant U.S. Attorney Cliff Stricklin, lead prosecutor on the case, while speaking at a Denver luncheon in October. He said prosecutors were ready to discredit the defense if Nacchio presented it.

Now compare that to what a government source told the NYT for last night’s article.

A government official said the N.S.A. intended to single out only foreigners on Qwest’s network, and added that the agency believed Joseph Nacchio, then the chief executive of Qwest, and other company officials misunderstood the agency’s proposal. Bob Toevs, a Qwest spokesman, said the company did not comment on matters of national security.

One source is saying Nacchio’s lying, the other is saying Nacchio just misunderstood the ask. Read more

Someone Doesn’t Want the Telecoms to Get Immunity

Because they’re leaking–and leaking big–to James Risen, Eric Lichtblau (and Scott Shane) again. Almost two years to the day since their first big scoop.

For months, the Bush administration has waged a high-profile campaign, including personal lobbying by President Bush and closed-door briefings by top officials, to persuade Congress to pass legislation protecting companies from lawsuits for aiding the National Security Agency’s warrantless eavesdropping program.

But the battle is really about something much bigger. At stake is the federal government’s extensive but uneasy partnership with industry to conduct a wide range of secret surveillance operations in fighting terrorism and crime. The N.S.A.’s reliance on telecommunications companies is broader and deeper than ever before, according to government and industry officials, yet that alliance is strained by legal worries and the fear of public exposure.

To detect narcotics trafficking, for example, the government has been collecting the phone records of thousands of Americans and others inside the United States who call people in Latin America, according to several government officials who spoke on the condition of anonymity because the program remains classified. But in 2004, one major phone carrier balked at turning over its customers’ records. Worried about possible privacy violations or public relations problems, company executives declined to help the operation, which has not been previously disclosed.

In a separate N.S.A. project, executives at a Denver phone carrier, Qwest, refused in early 2001 to give the agency access to their most localized communications switches, which primarily carry domestic calls, according to people aware of the request, which has not been previously reported. They say the arrangement could have permitted neighborhood-by-neighborhood surveillance of phone traffic without a court order, which alarmed them.

I need to go hang at FDL for the book salon thread (come meet Bob Drogin!). Afterwards, I’ll come back and fill this thread out some.

One comment though: this story says the change came bc everyone went on fiber. David Kris has shown pretty persuasively that’s not true–the wire/air split wasn’t that different in 1978 when FISA was written. The difference, I suspect, is that now everything is digital.