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Why Susan Rice May Be a Shiny Object

A bunch of Republican propagandists are outraged that the press isn’t showing more interest in PizzaGate Mike Cernovich’s “scoop” that the woman in charge of ensuring our national security under President Obama, then National Security Advisor Susan Rice, sought to fully understand the national security intercepts she was being shown.

There are two bases for their poutrage, which might have merit — but coming from such hacks, may not.

The first is the suggestion, based off Devin Nunes’ claim (and refuted by Adam Schiff) that Rice unmasked things she shouldn’t have. Thus far, the (probably illegally) leaked details — such as that family members, perhaps like Jared Kushner (who met with an FSB officer turned head of a sanctioned Russian bank used as cover for other spying operations), Sean Hannity (who met with an already-targeted Julian Assange at a time he was suspected of coordinating with Russians), and Erik Prince (who has literally built armies for foreign powers) got spied on — do nothing but undermine Nunes’ claims. All the claimed outrageous unmaskings actually seem quite justifiable, given the accepted purpose for FISA intercepts.

The other suggestion — and thus far, it is a suggestion, probably because (as I’ll show) it’s thus far logically devoid of evidence — is that because Rice asked to have the names of people unmasked, she must be the person who leaked the contents of the intercepts of Sergey Kislyak discussing sanctions with Mike Flynn. (Somehow, the propagandists always throw Ben Rhodes’ name in, though it’s not clear on what basis.)

Let me start by saying this. Let’s assume those intercepts remained classified when they were leaked. That’s almost certain, but Obama certainly did have the authority to declassify them, just as either George Bush or Dick Cheney allegedly used that authority to declassify Valerie Plame’s ID (as some of these same propagandists applauded back in the day). But assuming the intercepts did remain classified, I agree that it is a problem that they were leaked by nine different sources to the WaPo.

But just because Rice asked to unmask the identities of various Trump (and right wing media) figures doesn’t mean she and Ben Rhodes are the nine sources for the WaPo.

That’s because the information on Flynn may have existed in a number of other places.

Obviously, Rice could not have been the first person to read the Flynn-Kislyak intercepts. That’s because some analyst(s) would have had to read them and put them into a finished report (most, but not all, of Nunes’ blathering comments about these reports suggest they were finished intelligence). Assuming those analysts were at NSA (which is not at all certain) someone would have had to have approved the unmasking of Flynn’s name before Rice saw it.

In addition, it is possible — likely even, at least by January 2017, when we know people were asking why Russia didn’t respond more strongly to Obama’s hacking sanctions — that there were two other sets of people who had access to the raw intelligence on Flynn’s conversations with Kislyak: the CIA and, especially, the FBI, which would have been involved in any FISA-related collection. Both CIA and FBI can get raw data on topics they’re working on. Likely, in this case, the multi-agency task force was getting raw collection related to their Russian investigation.

And as I’ve explained, as soon as FBI developed a suspicion that either Kislyak was at the center of discussions on sanctions or that Flynn was an unregistered agent of multiple foreign powers, the Special Agents doing that investigation would routinely pull up everything in their databases on those people by name, which would result in raw Title I and 702 FISA collection (post January 3, it probably began to include raw EO 12333 data as well).

So already you’re up to about 15 to 20 people who would have access to the raw intercepts, and that’s before they brief their bosses, Congress (though the Devin Nunes and Adam Schiff briefing, at least, was delayed a bit), and DOJ, all the way up to Sally Yates, who wanted to warn the White House. Jim Comey has suggested it is likely that the nine sources behind the WaPo story were among these people briefed secondarily on the intercepts. And it’s worth noting that David Ignatius, who first broke the story of Flynn’s chats with Kislyak but was not credited on the nine source story, has known source relationships in other parts of the government than the National Security Advisor, though he also has ties to Rice.

All of which is to say that the question of who leaked the contents of Mike Flynn’s conversations with Sergey Kislyak is a very different question from whether Susan Rice’s requests to unmask Trump associates’ names were proper or not. It is possible that Rice leaked the intercepts without declassifying them first. But it’s also possible that any of tens of other people did, most of whom would have a completely independent channel for that information.

And the big vulnerability is not — no matter what Eli Lake wants to pretend — the unmasking of individual names by the National Security Advisor. Rather, it’s that groups of investigators can access the same intelligence in raw form without a warrant tied to the American person in question.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Devin Nunes’ So-Called Bibi Netanyahu Precedent

Throughout his ongoing information operation to claim the Obama White House spied on the Trump transition team, Devin Nunes has pointed to what he claimed was a precedent: when, in December 2015, members of Congress suddenly copped on that their conversations with Bibi Netanyahu would get picked up incidentally. In his March 22 press conference, he explained,

We went through this about a year and a half ago as it related to members of Congress, if you may remember there was a report I think it was in the Wall Street Journal and but then we had to have we had a whole series of hearings and then we had to have changes made to how Congress is informed if members of Congress are picked up in surveillance and this looks it’s like very similar to that.

Eli Lake dutifully repeated it in the second of his three-post series pitching Nunes’ information operation.

A precedent to what may have happened with the Trump transition involved the monitoring of Israel’s prime minister and other senior Israeli officials. The Wall Street Journal reported at the end of 2015 that members of Congress and American Jewish groups were caught up in this surveillance and that the reports were sent to the White House. This occurred during a bitter political fight over the Iran nuclear deal. In essence the Obama White House was learning about the strategy of its domestic political opposition through legal wiretaps of a foreign head of state and his aides.

But Lake didn’t apparently think through what the implications of Nunes’ analogy — or the differences between the two cases.

Here’s the WSJ report and CBS and WaPo versions that aren’t paywalled. All make it very clear that Devin Nunes took the lead in worrying about his conversations with Bibi Netanyahu being sucked up (I don’t remember Republicans being as sympathetic when Jane Harman got sucked up in a conversation with AIPAC). They also describe that Obama’s WH, faced with the potential that their surveillance would be seen as spying on another branch of Congress, had the NSA take charge of the unmasking.

The administration believed that Israel had leaked information gleaned from spying on the negotiations to sympathetic lawmakers and Jewish American groups seeking to undermine the talks.

According to the Journal, when the White House learned that the NSA eavesdropping had collected communications with U.S. lawmakers, it feared being accused of spying on Congress and left it to the NSA to determine what information to share with the administration. The Journal said the NSA did not pass along the names of lawmakers or any of their personal attacks on White House officials.

That’s not to say they’d take the same approach here — indeed, Lake now claims, at  least, that Susan Rice requested some Trump officials’ names to be unmasked, distinguishing it from the Bibi case in that White House did not leave it up to NSA to decide what to unmask (though the underlying reporting makes the silly claim that Rice, Loretta Lynch, and John Brennan were among a very limited number of people who could request a name be unmasked).

The larger point is, even assuming the collection of conversations between your political opponents and a foreign government designed to undermine your executive branch authority was scandalous, it’d still fall under the very legitimate concern of separation of powers.

Yes, Trump’s aides are from a different party. But they are nevertheless part of the executive branch. And the entire basis of counterintelligence spying — the entire point of FISA — is to ensure that executive branch officials are not targeted by foreign countries to be spies, which is part of the reason Mike Flynn attracted attention (which is not to justify the leaking of that intercept). Add in the legitimate necessity to implement executive branch policy and this is a very different case than the Bibi case, even if you want to defend (as I do, to a point) Republican members of Congress collaborating with foreign governments to undermine Article II authorities.

Nunes’ imagined solution — from his March 22 White House press conference — is ever nuttier.

Q: You’ve said legal and incidental. That doesn’t sound like a proactive effort to spy.

Nunes: I would refer you to, we had a similar issue with members of Congress that were being picked up in incidental collection a little over a year ago, we had to spend a full year working with the DNI on the proper notification for members of Congress to be notified which comes through the Gang of Eight. I would refer you to that because it looks very similar to that, would be the best way I can describe it.

The ODNI current informs the Gang of Eight when members of Congress get spied on (which means claims that a lot of GOP candidates got spied on is likely hot air, but which also means that if Nunes were collected as a member of the transition team, he’d have been the first to learn of it). Which is an important protection for separation of powers, but which also enables corrupt members of Congress to not just learn they’re being surveilled but, potentially, to alert the foreign targets what channels we’re using.

Maybe Trump wants that standard applied to the executive branch, but if he adopts it, we’re going to have a leaking free for all. Not to mention, it would make it absolutely impossible for the government to protect against espionage related to elections.

Or perhaps Nunes is just saying something more simple. Perhaps Nunes is saying the “dozens” of intercepts where Trump officials had been unmasked (to the extent that’s true) disclosed Trump’s transition-period attempts to drum up a war with Iran at the behest of Israel. Perhaps the real stink here is that, in the very same days Mike Flynn was telling Russia sanctions would be loosened, Trump was publicly undermining US efforts to take a stand against Israeli illegal settlements.

Perhaps, ultimately, this is still about a belief that the Israelis should never be wiretapped.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Who Violated Their Designated Role: Ezra Cohen-Watnick or Susan Rice?

In the original version of the latest right wing claim — that Susan Rice requested that multiple incoming Trump figures’ names be unmasked in intercepts — Mike Cernovich describes the genesis of Devin Nunes’ concern this way:

The White House Counsel’s office identified Rice as the person responsible for the unmasking after examining Rice’s document log requests. The reports Rice requested to see are kept under tightly-controlled conditions. Each person must log her name before being granted access to them.

Upon learning of Rice’s actions, H. R. McMaster dispatched his close aide Derek Harvey to Capitol Hill to brief Chairman Nunes.

But as Eli Lake — fresh off having apologized for letting Devin Nunes use him — tells the story, close Mike Flynn associate Ezra Cohen-Watnick discovered it and brought the discovery to the White House Counsel’s office, whereupon he was told to “end his own research” on unmasking.

The pattern of Rice’s requests was discovered in a National Security Council review of the government’s policy on “unmasking” the identities of individuals in the U.S. who are not targets of electronic eavesdropping, but whose communications are collected incidentally. Normally those names are redacted from summaries of monitored conversations and appear in reports as something like “U.S. Person One.”

The National Security Council’s senior director for intelligence, Ezra Cohen-Watnick, was conducting the review, according to two U.S. officials who spoke with Bloomberg View on the condition of anonymity because they were not authorized to discuss it publicly. In February Cohen-Watnick discovered Rice’s multiple requests to unmask U.S. persons in intelligence reports that related to Trump transition activities. He brought this to the attention of the White House General Counsel’s office, who reviewed more of Rice’s requests and instructed him to end his own research into the unmasking policy.

This repeats a claim Lake had made in his earlier apology post, which he presented as one detail in the NYT version of this story that was not accurate.

Another U.S. official familiar with the affair told me that one of the sources named in the article, former Defense Intelligence officer Ezra Cohen-Watnick, did not play a role in getting information to Nunes. This official said Cohen-Watnick had come upon the reports while working on a review of recent Justice Department rules that made it easier for intelligence officials to share the identities of U.S. persons swept up in surveillance. He turned them over to White House lawyers.

But it adds the detail that Cohen-Watnick had been told to stand down. That would explain why Lake and others would want to claim that Cohen-Watnick wasn’t involved in dealing all this to Nunes: because he had already been told not to pursue it further. If the multiple accounts saying he was involved in the hand-off to Nunes, it appears he did.

The WaPo’s version of this included a detail not included by the right wingers: that Cohen-Watnick went to John Eisenberg, not Don McGahn, with his “discovery.” Eisenberg is significantly responsible, dating back to when he was at DOJ, for ensuring that ordinary Americans would be sucked up in surveillance under PRISM. For him to be concerned about the legal unmasking of Americans’ identities (to the extent that did exist — and the record is still unclear whether it did) is laughable.

The timing of Cohen-Watnick’s research — dating back to February — intersects in interesting ways with the timeline in this March 14 Politico story of H.R. McMaster’s attempt to sideline him, which was overruled by Steven Bannon.

On Friday [March 10], McMaster told the National Security Council’s senior director for intelligence programs, Ezra Cohen-Watnick, that he would be moved to another position in the organization.

The conversation followed weeks of pressure from career officials at the CIA who had expressed reservations about the 30-year-old intelligence operative and pushed for his ouster.

But Cohen-Watnick appealed McMaster’s decision to two influential allies with whom he had forged a relationship while working on Trump’s transition team — White House advisers Steve Bannon and Jared Kushner. They brought the matter to Trump on Sunday [March 12], and the president agreed that Cohen-Watnick should remain as the NSC’s intelligence director, according to two people with knowledge of the episode.

The House Intelligence Committee first asked NSA, CIA, and FBI for details on unmasking on March 15, the day after this story broke, at which point Nunes already knew of the White House effort. When Nunes first blew this up on March 22, he falsely claimed that that March 15 request had been submitted two weeks earlier.

It’s clear the right wing wants to shift this into Benghazi 2.0, attacking Susan Rice for activities that are, at least on the face of it, part of her job. But the only way the White House could be sure that she (or Ben Rhodes, who they’re also naming) were the ones to leak this would be to investigate not just those two, but also all the FBI (which would have access to this information without unmasking these names, which not a single one of these right wing scribes admit or even seem to understand). That is, the only way they could make credible, as opposed to regurgitated right wing propaganda accusations about leakers is to have spied even more inappropriately than they are accusing the Obama White House of doing.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Trump’s Muslim Ban Forces IC to Conduct Actual Assessment of Terror Threats

CNN reports that the Trump Administration has asked DHS and DOJ to come up with an intelligence report backing the selection of the seven Muslim banned countries. According to CNN, some of those working on the report feel they’re being asked to fit a report to a desired conclusion.

President Donald Trump has assigned the Department of Homeland Security, working with the Justice Department, to help build the legal case for its temporary travel ban on individuals from seven countries, a senior White House official tells CNN.

Other Trump administration sources tell CNN that this is an assignment that has caused concern among some administration intelligence officials, who see the White House charge as the politicization of intelligence — the notion of a conclusion in search of evidence to support it after being blocked by the courts. Still others in the intelligence community disagree with the conclusion and are finding their work disparaged by their own department.

This is another of those areas where I’m grateful for the incompetence of the Trump Administration. If it were me, I’d call the four Obama Administration officials who first named these seven countries a threat: former Deputy CIA Director Avril Haines, former Secretary of State John Kerry, former Homeland Security Czar Lisa Monaco, and former National Security Advisor Susan Rice. They’re already on a court declaration in this case, so even the ones who might have been able to dodge testifying normally, they wouldn’t be able to. Make them explain why Iran and Sudan are on this list. They would either have to admit the truth: that our notions of terrorism generally are utterly politicized, and that if we were to measure on actual threat, our close allies Saudi Arabia and Pakistan would lead the list. Or they’d have to invent something to justify their past politicized actions.

Instead, Trump is trying to politicize intelligence, which not only has elicited this backlash, but will never be able to accomplish its objective. Even after redefining terror attack down to include material support (something that is actually consistent with the last 15 years of FBI fluffing their terror prosecution numbers), it is still impossible to present Iran as a bigger terrorist threat than Saudi Arabia (plus, you’d have to acknowledge that the listing and delisting of MEK, which a number of Trump officials have supported for cash payments, is also totally politicized).

Hopefully, that will lead to a larger reassessment of how we think of terrorism, including the recognition that our allies are actually the problem, not our arch-enemy Iran. That’s obviously wildly optimistic. But it is the kind of possibility that Trump’s incompetence allows us to consider.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

The Folks Who Picked the Stupid Seven Banned Countries Say the Muslim Ban Is Stupid

Buried in a declaration written by a bunch of former national security officials in the Washington v Trump suit opposing Trump’s Muslim ban is this passage:

Because various threat streams are constantly mutating, as government officials, we sought continually to improve that vetting, as was done in response to particular threats identified by U.S. intelligence in 2011 and 2015. Placing additional restrictions on individuals from certain countries in the visa waiver program –as has been done on occasion in the past – merely allows for more individualized vettings before individuals with particular passports are permitted to travel to the United States.

These officials, which include (among others) former Deputy CIA Director Avril Haines, former Secretary of State John Kerry, former Homeland Security Czar Lisa Monaco, and former National Security Advisor Susan Rice argue that the practice is to tweak immigration rules based on changing threat patterns rather than impose broad bans not driven by necessity and logic. They argue that additional restrictions imposed on certain immigrants in 2015 were “in response to particular threats identified by U.S. intelligence.”

That’s really interesting because the 2015 change they reference is the basis of the Trump list that excludes countries that are real threats and includes others (especially Iran) that are not. Here’s how CNN describes the genesis of the seven countries covered by Trump’s ban.

In December 2015, President Obama signed into law a measure placing limited restrictions on certain travelers who had visited Iran, Iraq, Sudan, or Syria on or after March 1, 2011. Two months later, the Obama administration added Libya, Somalia, and Yemen to the list, in what it called an effort to address “the growing threat from foreign terrorist fighters.

The restrictions specifically limited what is known as visa-waiver travel by those who had visited one of the seven countries within the specified time period. People who previously could have entered the United States without a visa were instead required to apply for one if they had traveled to one of the seven countries.

Under the law, dual citizens of visa-waiver countries and Iran, Iraq, Sudan, or Syria could no longer travel to the U.S. without a visa. Dual citizens of Libya, Somalia, and Yemen could, however, still use the visa-waiver program if they hadn’t traveled to any of the seven countries after March 2011.

Now, Haines, Kerry, Monaco, and Rice might be excused for opposing Trump’s ban on seven poorly picked countries that themselves had a hand in picking. After all, the changes derived from bills presented by Republicans, Candace Miller and Ron Johnson, which got passed as part of the Omnibus in 2015. Obama can’t be expected to veto the entire spending bill because some Republicans wanted to make life harder on some immigrants.

Except that, as far as I understand, the Obama Administration extended the restrictions from the original law, which pertained only to people from or who had traveled to Syria and Iraq, to Iran and Sudan. And then (as CNN notes) they extended it again to three other countries, Libya, Somalia, and Yemen (notably, all countries we destabilized).

So it’s partly the fault of Haines, Kerry, Monaco, and Rice that Iran, which hasn’t targeted the US in real terrorism for decades, is on the list. It’s partly the fault of Haines, Kerry, Monaco, and Rice that countries with actual ties to terrorists who have attacked inside the US — most notably Saudi Arabia and Pakistan — are not on the list.

I have no doubt that the argument presented in the declaration (which was also signed by a bunch of people who weren’t part of Obama’s second term national security team) is right: Trump’s Muslim ban is badly conceived and makes us less safe. But one reason they likely know that is because their own visa restrictions were badly conceived and did little to make us more safe.

Trump is pursuing a lot of stupid policies. But we should remain honest that they largely build on stupid policies of those who came before.

Update: Corrected that this is not an amicus, but a declaration submitted with state opposition.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

The Costs of Politically Free Cybersecurity Failures

Ben Wittes looks at the WaPo article and accompanying National Security Council Draft Options paper on how the White House should respond to FBI’s campaign against encryption and declares that “Industry has already won.”

[T]he document lays out three options for the administration—three options that notably do not include seeking legislation on encryption.

They are:

  • “Option 1: Disavow Legislation and Other Compulsory Actions”;
  • “Option 2: Defer on Legislation and Other Compulsory Actions”; and
  • “Option 3: Remain Undecided on Legislation or Other Compulsory Actions.”

In all honesty, it probably doesn’t matter all that much which of these options Obama chooses. If these are the choices on the table, industry has already won.

What’s most fascinating about the white paper is that it lays bare how the NSC itself sees this issue — and they don’t see it like Wittes does, nor in the way the majority of people clamoring for back doors have presented it. As the NSC defines the issue, this is not “industry” versus law enforcement. For each assessed scenario, NSC measures the impact on:

  • Public safety and national security
  • Cybersecurity
  • Economic competitiveness
  • Civil liberties and human rights

Arguably, there’s a fifth category for each scenario — foreign relations — that shows up in analysis of reaction by stakeholders that weighs the interests of foreign governments, including allies that want back doors (UK, France, Netherlands), allies that don’t (Germany and Estonia), and adversaries like Russia and China that want back doors to enable repression (and, surely, law enforcement, but the analysis doesn’t consider this).

That, then, is the real network of interests on this issue and not — as Wittes, Sheldon Whitehouse, and many though not all defenders of back doors have caricatured — simply hippies and Apple versus Those Who Keep Us Safe.

NSC not only judges the market demand for encryption — and foreign insistence that US products not appear to be captive to America’s national security state — to be real, but recognizes that those demands underlie US economic competitiveness generally.

And, as a number of people point out, the NSC readily admits that encryption helps cybersecurity. As the white paper explains,

Pro-encryption statements from the government could also encourage broader use of encryption, which would also benefit global cybersecurity. Further, because any new access point to encrypted data increases risk, eschewing mandated technical changes ensures the greatest technical security. At the same time, the increased use of encryption could stymie law enforcement’s ability to investigate and prosecute cybercriminals, though the extent of this threat over any other option is unclear as sophisticated criminals will use inaccessible encryption.

Shorter the NSC: If encryption is outlawed, only the sophisticated cyber-outlaws will have encryption.

This is the discussion we have not been having, as Jim Comey repeatedly talks in terms of Bad Guys and Good Guys, the complex trade-offs that are far more than “safety versus privacy.”

What’s stunning, however, is that NSC — an NSC that was already in the thick of responding to the OPM hack when this paper was drafted in July — sees cybersecurity as a separate category from public safety and national security. Since 2013, the Intelligence Community has judged that cybersecurity is a bigger threat than terrorism (though I’m not sure if the IC has revised that priority given ISIS’ rise). Yet the NSC still thinks of this as a separate issue from public safety and national security (to say nothing of the fact that NSC doesn’t consider the crime that encryption would prevent, such as smart phone theft).

I’m not surprised that NSC considers these different categories, mind you. Cybersecurity failures are still considered (with the sole exception of Katherine Archuleta, who was forced to resign as OPM head after the hack) politically free, such that men like John Brennan (when he was Homeland Security Czar on NSC) and Keith Alexander can have, by their own admission, completely failed to keep us safe from cyberattack without being considered failures themselves (and without it impacting Brennan’s perceived fitness to be CIA Director).

The political free ride cybersecurity failures get is a problem given the other reason that Wittes’ claim that “industry has already won” is wrong. WaPo reports that NSC still hasn’t come up with a preferred plan, ostensibly because it is so busy with other things.

Some White House aides had hoped to have a report on the issue to give to the president months ago. But “the complexity of this issue really makes it a very challenging area to arrive at any sort of policy on,” the senior official said. A Cabinet meeting to be chaired by National Security Adviser Susan Rice, ostensibly to make a decision, initially was scheduled for Wednesday, but it has been postponed.

The senior official said that the delays are due primarily to scheduling issues — “there are a lot of other things going on in the world” — that are pressing on officials’ time.

But WaPo also presents evidence that those who want back doors are just playing for time, until some kidnapping or terrorist attack investigation gets thwarted by encryption.

Although “the legislative environment is very hostile today,” the intelligence community’s top lawyer, Robert S. Litt, said to colleagues in an August e-mail, which was obtained by The Post, “it could turn in the event of a terrorist attack or criminal event where strong encryption can be shown to have hindered law enforcement.”

There is value, he said, in “keeping our options open for such a situation.”

So long as the final decision never gets made, those who want back doors will be waiting for the moment when some event changes the calculus that currently weighs in favor of encryption. And, of course, we’ll all be relying on people like Jim Comey to explain why encryption made it impossible to catch a “bad guy,” which means the measure will probably ignore the other ways law enforcement can get information.

We are still living in Dick Cheney’s world, where missing a terrorist attack (other than the big one or the anthrax attack) is assumed to be career ending, even while failing to address other threats to the US (climate change and increasingly cybersecurity) are not. So long as that’s true, those waiting to use the next spectacular failure to make ill-considered decisions about back doors will await their day, putting some kinds of national security above others.

Update: Like me, Susan Landau thinks Wittes misunderstood what the White Paper said about who “won” this fight.

But the National Security Council draft options paper never mentions national-security threats as a concern in the option of disavowing legislation controlling encryption (it does acknowledge potential problems for law enforcement). The draft says that no-legislation approach would help foster “the greatest technical security.” That broad encryption use is in our national security interest is why the administration is heading to support the technology’s broad use. That’s the story here — and not the one about Silicon Valley.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

The Warmongers Hang Out the Insular Bumblers

At the risk of being misunderstood as defending Susan Rice, let me explore a couple of things about this article, complaining about her “bumbling” as National Security Advisor.

3,000 words into a 3,500 word article, this sentence — which I believe is the real point of the story — appears.

And the larger question is whether Hagel’s mostly inward focus on budget and morale issues at the Pentagon is the right focus now—instead of helping to project American power abroad amidst spiraling global crises.

That is, the article expresses the viewpoint of a bunch of mostly anonymous people who believe that “projecting American power” (in the form of military presence) is the solution to the multiple crises in the world today, including the Ebola epidemic. Underlying it all is a complaint not only that Obama isn’t projecting enough tanks and planes, but he’s daring to cut DOD’s budget.

Along the way, the article complains that the White House:

  • Did not consult with “the Pentagon” before sending a plan to combat ISIL to Congress (though the White House may have consulted with Chuck Hagel and Martin Dempsey)
  • Did not alert either Chuck Hagel’s office or “the Pentagon” before asking Congress to withdraw the 2002 AUMF authorizing force against Saddam Hussein but not Islamic terrorists in Iraq
  • Sought Congress’ authorization to use military force in Syria, which led instead to partial CW disarmament by Bashar al-Assad
  • Picked insider Ron Klain to deal with the Ebola crisis that is already being dealt with by CDC

It also complains about Chuck Hagel’s low visibility and the fact he let Dempsey undercut the President’s claims about boots on the ground in Iraq.

Now, I agree with the complaint — if true — that the initial plan sent for ISIL wasn’t sufficiently vetted. It sounds like something the Saudis wrote, which might suggest the Saudis wrote it, which given the Saudi role in fostering ISIL, would be deeply alarming but not at all surprising.

And I agree that the White House appears to run from crisis to crisis like 6 year olds on a soccer field (though I’m not 100% convinced that reflects reality, rather than a response to a political need to appear to be in crisis mode). I even agree there is abundant reason to be skeptical of the Administration’s strategy, though Michael Hirsh doesn’t even consider that they might have one, which seems to overlook hints of an effort to rework the regional structure of the Middle East.

But ultimately, these criticisms serve another purpose: to complain that Obama is not rushing into full-scale war in Iraq and Syria.

To his critics—and I spoke with several for this article inside Obama’s administration as well as recent veterans of it—it’s all a reflection of the slapdash way a president so vested in “ending wars” has embraced his new one.

[snip]

With ISIL still on the move in Iraq and Syria, and the air strikes that Obama announced on Sept. 10 proving to be of dubious effectiveness, many military experts say this is the moment to beef up the U.S. presence with close combat advisers and spotters on the ground who can guide in heavier and more precise airstrikes, as well to provide more U.S. trainers. But the president’s “no boots on the ground” pledge has paralyzed discussion, despite Dempsey’s lonely effort to open the door slightly to the possibility of bringing in such advisers.

There is never the hint of consideration that the solution may perhaps be less military involvement, not more, the last decade of evidence notwithstanding. Nor is there consideration of the possibility that the reason Obama seems so lackadaisical is because he has different goals in Syria than they do, not least to get beyond the election and force the Middle East to start putting some skin in their own security demands.

There’s never the hint of consideration that projection of American power is part of the problem, not the solution.

That’s my general complaint about the article. But I’m also very fascinated by this passage.

The office of Defense Secretary Chuck Hagel was taken by surprise as well last July, when national security adviser Susan Rice sent a letter to House Speaker John Boehner requesting a withdrawal of the Authorization for the Use of Military Force (AUMF) passed in 2002 to enable U.S. military action in Iraq. This letter came after Mosul, a key northern Iraqi city, had already fallen to ISIL and the scale of the threat was becoming clear. The letter was never acted on, and in fact the AUMF that Rice wanted withdrawn is now part of the very authority the administration says it is operating under, along with the 2001 AUMF against al Qaeda. The Pentagon was not given a heads-up about that letter either, according to multiple sources. “We didn’t know it was going over there, and there were significant concerns about it,” said the senior defense official. “We had these authorities to go into Iraq under the 2002 AUMF, which is what she wanted repealed. We believed the authorities were still needed.”

“The authorities were still needed”?? Two and a half years after we withdrew troops from Iraq?

Before I explain my interest in the passage, consider this response from a guy who was Special Counsel to DOD while the Iraq War AUMF was being drawn up, and later interpreted the scope of that AUMF while Assistant Attorney General at OLC, Jack Goldsmith.

Of course we now know that DOD was right, since the administration is now relying on the 2002 AUMF in its uses of force against the Islamic State.

In context, Goldsmith makes an enormous logical leap. That we need some kind of authorization if we’re going to go back to war in Iraq in no way means we need an AUMF crafted — at least as far as those of us who weren’t privy to the process are concerned — to fight an entirely different war. Nothing about Obama’s subsequent decision to go to war suggests we need that AUMF — and almost every observer who wasn’t involved in crafting and interpreting that AUMF disagrees about its applicability in this case.

But Hirsh’s “senior defense official” source seems to be saying something even more. In July 2014 DOD believed “the authorities” provided by Congress in 2002 to fight Saddam “were still needed.” Not, “would be needed” if we put all the boots on the ground this article seems to endorse. But “were still needed.”

That leads me to suspect the entirely unsurprising hypothesis that DOD never stopped relying on (or had already resumed relying on) the AUMF for … something.

It’s not out of the question, for example, that whatever JSOC forces that were part of CIA’s boots on the ground that started at least by June 2013 were “relying” on the totally inapt 2002 AUMF. It’s possible that, even when JSOC gets “sheep-dipped” into CIA ops, it still likes to have an AUMF lying around so it can claim that its un-uniformed soldiers operating off of a battlefield are entitled to the same combatant’s privilege they would be if they wore a uniform on a recognized battlefield.

Or it could be DOD never really pulled all its troops from Iraq. Because someone has to manage the contractors after all. There were reports, for example, as ISIL advanced on Kirkuk, that we’ve always had troops there.

If either is the case, I can see how DOD might react badly to these lines from Rice’s letter asking to have the AUMF withdrawn.

As the President unequivocally stated in late June, “American forces will not be returning to combat in Iraq,…”

[snip]

With American combat troops having completed their withdrawal from Iraq on December 18, 2011, the Iraq AUMF is no longer used for any U.S. government activities and the Administration fully supports its repeal. Such a repeal would go much further in giving the American people confidence that ground forces will not be sent into combat in Iraq.

After all, if ground forces already were in Iraq, and if DOD works under the assumption that its covert special forces obtain combatant status from these AUMFs lying around, it would explain why they were so cranky that Rice moved to withdraw it.

But there must be some explanation, because unless it was in use in July, months before Obama overtly started engaging ISIL in Iraq, there’s no basis for DOD to complain.

It sure seems like the Iraq AUMF has been secretly redefined (maybe even was when Goldsmith was still at DOD), just like the 2001 AUMF.

 

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

The Civil Liberties Celebration Hangover Wears Off

JusticePicAt the end of last week, I joked a little about privacy and civil liberties advocates having had the “best week ever”. It was indeed a very good week, but only relatively compared to the near constant assault on the same by the government. But the con is being put back in ICon by the Administration and its mouthpieces.

As I noted in the same post, Obama himself has already thrown cold water on the promise of his NSA Review Board report. Contrary to some, I saw quite a few positives in the report and thought it much stronger than I ever expected. Still, that certainly does not mean it was, or is, the particularly strong reform that is needed. And even the measures and discussion it did contain are worthless without sincerity and dedication to buy into them by the intelligence community and the administration. But if Obama on Friday was the harbinger of the walkback and whitewash of real reform, the foot soldiers are taking the field now to prove the point.

Sunday morning brought out former CIA Deputy Director Michael Morrell on CBS Face the Nation to say this:

I think that is a perception that’s somehow out there. It is not focused on any single American. It is not reading the content of your phone calls or my phone calls or anybody else’s phone calls. It is focused on this metadata for one purpose only and that is to make sure that foreign terrorists aren’t in contact with anybody in the United States.

Morrell also stated that there was “no abuse” by the NSA and that Ed Snowden was a “criminal” who has shirked his duties as a “patriot” by running. Now Mike Morrell is not just some voice out in the intelligence community, he was one of the supposedly hallowed voices that Barack Obama chose to consider “reform”.

Which ought to tell you quite a bit about what Barack Obama really thinks about true reform and your privacy interests. Not much. In fact, Morrell suggested (and Obama almost certainly agrees) that the collection dragnet should be expanded from telephony to also include email. Not exactly the kind of “reform” we had in mind.

Then, Sunday night 60 Minutes showed that fluffing the security state is not just a vice, but an ingrained habit for them. Hot on the heels of their John Miller blowjob on the NSA, last night 60 Minutes opened with a completely hagiographic puff piece on and with National Security Advisor Susan Rice. There was absolutely no news whatsoever in the segment, it was entirely a forum for Rice and her “interviewer”, Lesley Stahl, to spew unsupported allegations about Edward Snowden (He “has 1.5 million documents!”), lie about how the DOJ has interacted with the court system regarding the government surveillance programs (the only false statements have been “inadvertent”) and rehab her image from the Benghazi!! debacle. That was really it. Not exactly the hard hitting journalism you would hope for on the heels of a federal judge declaring a piece of the heart of the surveillance state unconstitutional.

Oh, yes, Susan Rice also proudly proclaimed herself “a pragmatist like Henry Kissinger which, as Tim Shorrock correctly pointed out, is not exactly reassuring from the administration of a Democratic President interested in civil liberties, privacy and the rule of law.

So, the whitewashing of surveillance dragnet reform is in full swing, let the giddiness of last week give way to the understanding that Barack Obama, and the Intelligence Community, have no intention whatsoever of “reforming”. In fact, they will use the illusion of “reform” to expand their authorities and power. Jonathan Turley noted:

Obama stacked the task force on NSA surveillance with hawks to guarantee the preservation of the program.

Not just preserve, but to give the false, nee fraudulent, patina of Obama Administration concern for the privacy and civil liberties concerns of the American citizenry when, in fact, the Administration has none. It is yet another con.

Or, as Glenn Greenwald noted:

The key to the WH panel: its stated purpose was to re-establish public confidence in NSA – NOT reform it.

There may be some moving of the pea beneath the shells, but there will be no meaningful reform from the administration of Barack Obama. The vehicle for reform, if there is to be one at all, will have to come from the Article III federal courts. for an overview of the path of Judge Leon’s decision in Klayman through the DC circuit, see this piece by NLJ’s Zoe Tillman.

Lastly, to give just a little hope after the above distressing content, I recommend a read of this excellent article by Adam Serwer at MSNBC on the cagy pump priming for surveillance reform Justice Sotomayor has done at the Supreme Court:

If Edward Snowden gave federal courts the means to declare the National Security Agency’s data-gathering unconstitutional, Sonia Sotomayor showed them how.

It was Sotomayor’s lonely concurrence in U.S. v Jones, a case involving warrantless use of a GPS tracker on a suspect’s car, that the George W. Bush-appointed Judge Richard Leon relied on when he ruled that the program was likely unconstitutional last week. It was that same concurrence the White House appointed review board on surveillance policy cited when it concluded government surveillance should be scaled back.

“It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” Sotomayor wrote in 2012. “This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”

Give the entire article a read, Adam is spot on. If there is to be reform on the surveillance dragnet, it will almost certainly have to be the handiwork of the courts, and Justice Sotomayor planted the seed. The constant barrage of truth and facts coming from the Snowden materials, what Jay Rosen rightfully terms “The Snowden Effect” is providing the food for Sotomayor’s seed to flower. Hopefully.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.

For Susan Rice, Love of Endless War Means Never Having to Say US Is Sorry

Yesterday evening, reports appeared in both the New York Times and Khaama Press in Afghanistan that the final hurdle for the Bilateral Security Agreement had been cleared and that US President Barack Obama would sign a letter to be read at the loya jirga. The letter would note that the US has made mistakes in its war efforts in Afghanistan. Further, the letter would convey an apology along with a pledge to avoid repeating the mistakes in which innocent Afghan citizens suffered.

But for the endless war faction within the US military and government, an apology just won’t do (even if there was one to Pakistan that finally reopened the supply routes after the US killed 24 Pakistani border troops). National Security Advisor Susan Rice immediately got time with Wolf Blitzer on CNN to nip the idea of an apology in the bud:

“No such letter has been drafted or delivered. There is not a need for the United States to apologize to Afghanistan,” National Security Adviser Susan Rice said on CNN’s “Situation Room.”

“Quite the contrary, we have sacrificed and supported them in their democratic progress and in tackling the insurgents and al Qaeda. So that (letter of apology) is not on the table.”

Rice said she has seen news reports but has no idea where they are coming from, describing the claims as a “complete misunderstanding of what the situation is.”

Here’s the video:

[youtuber youtube=’http://www.youtube.com/watch?v=KRDWTuApcxM’]

I’m surprised she didn’t go all the way to insisting on an apology from Afghanistan for being ungrateful for all the freedom we’ve unleashed on them.

The Times version of the story has been through a number of changes. Note that the url retains the early headline for the story “Key Issue Said to be Resolved in US-Afghan Security Talks”. The story now reflects the push-back from Rice, but it also shows that diplomats are focusing on a letter anyway (but of course now can’t call it an apology):

A senior State Department official, speaking on condition of anonymity to discuss continuing negotiations, was more noncommittal, saying that a letter acknowledging past issues like civilian casualties was a possibility being weighed. “We will consider his request for reassurances, including the option of a letter from the administration stating our position,” the official said.

Under the Afghan description, in return for the letter, Mr. Karzai would then accept wording that allowed American Special Operations raids to search and detain militants within Afghan homes, but only under “extraordinary circumstances” to save the lives of American soldiers. That would seem to greatly hamper the American intent behind those operations, which commanders have said are critical to taking the fight directly to Al Qaeda and other terrorist groups.

The Washington Post goes further on the letter and suggests that it will indeed be signed by Obama and delivered: Read more

Many years ago, Jim got a BA in Radiation Biophysics from the University of Kansas. He then got a PhD in Molecular Biology from UCLA and did postdoctoral research in yeast genetics at UC Berkeley and mouse retroviruses at Stanford. He joined biosys in Palo Alto, producing insect parasitic nematodes for pest control. In the early 1990’s, he moved to Gainesville, FL and founded a company that eventually became Entomos. He left the firm as it reorganized into Pasteuria Biosciences and chose not to found a new firm due a clash of values with venture capital investors, who generally lack all values. Upon leaving, he chose to be a stay at home dad, gentleman farmer, cook and horse wrangler. He discovered the online world through commenting at Glenn Greenwald’s blog in the Salon days and was involved in the briefly successful Chris Dodd move to block the bill to renew FISA. He then went on to blog at Firedoglake and served a brief stint as evening editor there. When the Emptywheel blog moved out of Firedoglake back to standalone status, Jim tagged along and blogged on anthrax, viruses, John Galt, Pakistan and Afghanistan. He is now a mostly lapsed blogger looking for a work-around to the depressing realization that pointing out the details of government malfeasance and elite immunity has approximately zero effect.

Cruise Killing on the Passive Voice

Before I lay out the chronology of the road to war against Syria, check out the language National Security Advisor Susan Rice used to blow off the UN investigation.

Ms. Rice sent the email to Ms. Power and others, officials said. “The investigation is…too late, and will actually tell us what we already know: CW was used,”

While the WSJ quotes Rice claiming to know who actually used the chemical weapons in the next line, ultimately it comes down to this:

“CW was used.”

Jay Carney today also used the passive voice in dismissing the UN investigation.

So the work of that team is redundant, you might say, because it is clearly established already that chemical weapons have been used on a significant scale.

The fucking passive voice.

But before we got to that point consider what happened. First (according to WSJ’s Arab diplomats) the always trustworthy Israelis caught someone moving CW into place.

One crucial piece of the emerging case came from Israeli spy services, which provided the Central Intelligence Agency with intelligence from inside an elite special Syrian unit that oversees Mr. Assad’s chemical weapons, Arab diplomats said. The intelligence, which the CIA was able to verify, showed that certain types of chemical weapons were moved in advance to the same Damascus suburbs where the attack allegedly took place a week ago, Arab diplomats said.

Then after the attack, according to Foreign Policy, US spooks overheard a Syrian Defense official “demanding answers” from an officer in the chemical weapons unit from which the CW would have been used.

Last Monday [sic], in the hours after a horrific chemical attack east of Damascus, an official at the Syrian Ministry of Defense exchanged panicked phone calls with leader of a chemical weapons unit, demanding answers for a nerve agent strike that killed more than 1,000 people. Those conversations were overheard by U.S. intelligence services, The Cable has learned.

FP goes on to point out a lot of the important things we don’t know, such as why and on whose authority, even while laying out the case that CW was used. (Though here are some doubts about whether it was really sarin.)

Meanwhile, according to Gareth Porter, it took until Saturday for the UN to request access to the attack site. Syria granted that access Sunday. At which point John Kerry attempted to personally intervene to stop the investigation.

After the deal was announced on Sunday, however, Kerry pushed Ban in a phone call to call off the investigation completely.

The Wall Street Journal reported the pressure on Ban without mentioning Kerry by name. It said unnamed “U.S. officials” had told the secretary-general that it was “no longer safe for the inspectors to remain in Syria and that their mission was pointless.”

But Ban, who has generally been regarded as a pliable instrument of U.S. policy, refused to withdraw the U.N. team and instead “stood firm on principle”, the Journal reported. He was said to have ordered the U.N. inspectors to “continue their work”.

Meanwhile, the Administration also seems to be delaying the release of its own intelligence report, after promising it would already be out.

Q And there’s a lot of speculation that this intelligence report that presumably would link Assad directly to the chemical weapons attack might be released today. Can you give us an update on the timing?

MR. CARNEY: What I would say is that yesterday I made clear that the intelligence community is working on an assessment and that once we had that assessment we would provide information to the public about it in the coming days. And that remains true. I think that that’s speculation that it would come today rather than some other day. But it will come and I think you can expect it this week.

Do you get the feeling there are some holes in the intelligence report? Such as, if this was ordered by someone in Assad’s chain of command, why a Defense Ministry official would be making “panicked calls” about the strike?

There’s one more thing I find at least interesting about the intelligence.

Recall back in December, when the CW scares first started. We had evidence — as the Israelis claim we have no — of Syria pre-positioning weapons. And then Syria lost its Toobz access. I noted at the time that the utter lack of panic about the latter event suggested that we knew precisely why and how the Toobz came down. That detail may mean nothing about today’s events (though at the time it suggested that the source of the intelligence wasn’t SIGINT, because if the US had just lost its intelligence access it would have been panicking). But it seems notable, given the centrality of the “moving chemicals” intelligence again.

There is, to be sure, a great deal of evidence that (as both Rice and Carney said) “CW were used.”

But the Administration seems increasingly squirrelly allowing time to discover the rest of the occasion, which may be why a Syrian officer release CW without having had received an order from his superiors.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.