Wolves in the Fold: FBI = NSA = 1984

February 26, 2016–This is major league serious business. I might observe how tiresome it is to have to go back again and again to these issues over government access to private communications of citizens, except that the issue is way too important to be left to government officials. Like the hammer seeing only nails, if you’re the FBI every telephone is a potential gateway to a crime (so you need them all). Weren’t we in this exact same place two years ago with the National Security Agency? Let’s review the bidding.

James B. Comey, the FBI director, won big points in my book a decade ago when he stood up to White House thugs trying to strongarm the Justice Department over the NSA blanket surveillance program Stellar Wind. But he’s blown it all now–and is plenty deep in the Big Muddy–with his dogged bids to saw out a back door into everyone’s private communications. In The Family Jewels I documented at some length the government excesses this kind of thing leads to. Edward Snowden, practically moments later, revealed NSA programs–starting with Stellar Wind but including a lot more–that were doing just that.

The NSA used to rely upon the FBI as front man. That is, if NSA wanted some access it would prevail upon FBI to open an investigation and make applications to the FISA Court in its own name. After the judges approved the warrant the agencies would share the take between themselves.

In one sense the current mess about access to the San Bernardino murderers’ phone is a replay of that. The ink was hardly dry on the NSA’s stuck pig squeals that denying blanket eavesdropping would emasculate it–followed by the tech companies’ promises they would add encryption–and the cosmetic “reforms” President Obama enacted–before the FBI started complaining about its iphone access. (Or, more properly, about its diminished ability to wiretap.) Director Comey began this drumroll long before the San Bernardino murders. To say, as he still did yesterday in front of a congressional committee at an annual threat hearing, that this is all about one telephone, just boggles the mind.

It is possible that Comey (and the FBI) really believe this is just about one phone. Naturally, that strains credulity, but of course this is the FBI, the government agency which spent multi billions of dollars and took over ten years to fail at the simple task of getting all of its employees onto a common computer network.

The bit from Comey about The Bureau not being able to look itself in the mirror, etc., if it could not give the victims’ survivors good answers is well-meant but it is devised to pull at heartstrings. FBI does not need iphones to obtain the evidence it needs for good answers–that it has already collected. The San Bernardino murders are past us, so no current law enforcement objective obtains. Even the intelligence potential of these iphones is minimal. These were not people talking to ISIS strategic commanders, nothing beyond minutiae stands to be revealed. There is no trial or indictment for which to collect evidence either.

The only purpose for which this access is relevant is for the future–which means, the future being unpredictable, and all–the potential for access to every iphone.

FBI mavens claim their demand for access to the San Bernardino phone is unique and can go no further based on the notion that Apple can write a “back door” (datamining) program and this would be installed in just the single phone by use of a maintenance access code unique to that phone. The Bureau seemingly does not understand that all iphones are identical, their operating systems also, and the back door program would be too. The only protection left to the individual is the maintenance code. At the point in the future when any of this becomes relevant, the precedent for tech companies yielding their maintenance codes to government inquisitors will already have been set by the “San Bernardino phone” case.

You can see how insidious this is. It is Apple executive Ted Cook, not the FBI who is right–this is about the future, not the San Bernardino case. That’s the only way it makes sense, and the only explanation that accounts for James Comey’s drumbeat about encryption that starts from before the San Bernardino murders.

This is the place where I have to disagree with columnist David Ignatius of the Washington Post, who writes in today’s issue that “the basic problem” with Apple’s position is that “a private company and the interests of its customers should prevail over the public’s interest as expressed by our courts.” Ignatius is an experienced and acute observer of the security agencies, but here he carries their water.

Here Apple (and its customers) are only surrogates for the public. It is the public that is the real target. That Apple stands in the place of the citizenry is purely a function of the type of hi tech equipment involved here. As for the expressions of our courts, Ignatius knows better. Courts, in particular at the district level, have as much resilience for standing against national security claims as ice cubes in an oven. That FBI would obtain a court order was perfectly predictable. To represent that as a considered judgment is short-sighted. One need only look at the judgments of our supposedly conscientious Foreign Intelligence Surveillance Court to see the legal system stretching ancient precedent to justify modern intrusiveness.

The intrusion is a Constitutional matter, and the answer has been there all along in the Bill of Rights. The Fourth and First Amendments prohibit intrusive surveillance, individual or mass, in any form at any time. End of story.

Or not. It won’t be the first time myopic self-interest or security hysteria have breached the walls of constitutional rights. The wise citizen will take measures to avoid intrusive surveillance. For me, I am inclined to take my typewriters out of storage. I understand the German intelligence service BND is doing the same. Decades ago the NSA spent millions (probably now billions) figuring out how to recover the text printed with a typewriter ribbon. I bet you they have now lost that skill they once had.

 

FBI/NSA/KGB: Obama Crosses the Line

February 20, 2016–President Barack Obama dropped his veil this week, lending White House support to the misguided and dangerous push from James Comey, the FBI and Justice Department, and law enforcement generally, to obtain entry into individuals’ private information. This time we’re not talking phone numbers, “metadata,” and private records–although that is the excuse. We’re talking about nothing less than the creation of a tool that will permit 24/7 surveillance of anyone, anytime, in real time as well as in retrospect. This is scary, ghastly, sinister, put on it any adjective you want.

Readers of this space will know we’ve been following the electronic surveillance issue. We’ve commented in the past about how our fearful leaders– no longer just James Clapper the DNI, but Comey the DirFBI, John Brennan the DCIA, and Mike Rogers the DirNSA–have spoken with forked tongues. Barack Obama made plenty of concessions to them, and this week the White House went all in. Obama has drunk the koolaid. We’re headed toward abuses of the sort documented so sordidly in The Family Jewels.

Let’s dispense with the foolish excuses first. Ostensibly the FBI needs cellphone access to the devices used by San Bernardino murderers Syed Rizwan Farook and Tashfeen Malik as part of its investigation into their December killing spree now understood as an ISIS terrorist attack. Farook and Malik were killed in a shootout with authorities within hours of their attack. They are not going to be shooting anyone now. Nor does the FBI need evidence for a trial. In terms of linking the two to Farook associates, the FBI seized direct evidence with a search warrant just the other day. The phones will be no help there.

The New York City Police Department entered the ring on Thursday with a claim that it has been denied access to some 175 communications devices. Sounds like a lot until you put it into the context of how many cases the NYPD has open at the moment.

The real questions are proportionality and privacy. Authorities want to use these cases as a lever to force the technology companies to furnish them tools with which they can access all manner of devices. In the San Bernardino case the Apple Corporation is resisting, including resisting the court order the FBI obtained.

The Department of Justice snidely asserts that Apple is using its resistance to the FBI as a marketing tool. Maybe that’s true–but the term “marketing tool” applies only because of previous actions of both the FBI and NSA, which violated the privacy of millions of individuals everywhere. Apple and other corporations woke up to realize that, absent the installation of encryption, their products were on the way to the junkpile.

Apple’s stance may be bogus, but the security agencies are being positively mendacious. There is little investigative value to be gained from the phone devices at issue in this court order. But there is enormous value (not investigative, but intelligence value) in gaining access to the backdoor software that will enable entry into millions of devices. That is, until the world abandons American-owned technology corporations in pursuit of ones which offer more secure products. Here’s where proportionality comes in: at issue is the record of every person’s contacts, the record of communications, the texts of messages sent from iphones or texting, the apps, the record of usage, increasingly bank records and other financial information–the Big Enchilada.

That’s way out of proportion to what the FBI can discover from Farook’s iphone.

You want to make America great again? Stop the hysteria, drop the pretense, tell the truth, restore privacy. The security agencies’ present course is an invitation for some very large businesses to leave the United States, impoverishing us all the more.

Do They Work for Us? (2)

November 20, 2015–Just a short thing today. John Brennan of CIA is getting much too much mileage out of his tirades on alleged “limits” curbing intelligence effectiveness. The fact is that, if there is blame to be assessed for the Paris (and other) attacks, it is to the CIA, U.S. and Western intelligence at large for failing to appreciate ISIS. The fact is that the Pentagon inspector general right now is engaged in an investigation of the degree to which senior officers at Central Command suppressed the views of intelligence analysts who warned of the morphing ISIS challenge. The New York Times has already carried several lengthy exposes of U.S. intelligence failures over ISIS. Only the reality that Mr. Brennan no longer heads all U.S. intelligence (he commands only the CIA) prevents his being directly responsible. But guess who is? That would be Director of National Intelligence James Clapper. Fearful Leader. No doubt his consiglieri Robert Litt is getting ready to tell us that General Clapper was thinking of something else at the time.

Meanwhile, also since the Paris attacks, FBI chief James Comey has come out of the woodwork yet again to blame it all on encryption of telephone devices. Today’s Washington Post contains the latest round of charges but ends quite usefully by quoting a senior Silicone Valley executive who says the cellphone encryption programs were in development well before Edward Snowden’s leaks and had no impact on their introduction. Considering the time it takes to design, operationalize, and perfect a product, I have no difficulty believing that. The Snowden affair literally had nothing to do with the predicament the intelligence agencies find themselves in today. That’s worth keeping in mind.

And one more thing– where is the evidence–not just jeremiads but evidence–that the Paris attacks were planned using high level encryption programs? The shootout in which the terrorist Abbaaoud perished shows every sign of an incident in which security services had complete knowledge of their target, not likely if police had been stumbling around blindly.

CIA: Do They Work for Us?

November 17, 2015–Readers here will have seen me from time to time lamenting the antics of people like Fearful Leader–Director of National Intelligence James Clapper–or agencies such as the CIA and NSA. It’s time to do it again today. It seems the security services have forgotten that they work for the American people, and not the other way around. Let’s be certain no mistake is made here.

Yesterday at a Washington think tank, the Center for Strategic and International Studies, CIA director John O. Brennan used the occasion of the Paris attacks to make strident demands for new powers of investigation, intrusive and insistent. It is stunning–and shabby– that the CIA director should use the tragedy of the Paris attacks to advance these demands. They involve a question already asked and answered. There was a presidential decision. It went against the CIA. Who does Brennan work for?

I let pass an opportunity to comment some weeks ago, when the current FBI director, James Comey, went around demanding that the NSA and FBI be given the power to dictate encryption standards for communication devices, or at a minimum that the security services have a “back door” built into encryption programs so they can surreptitiously read messages people think are secure. I thought the issues had been thoroughly aired in the debate after the Snowden affair. Congress has passed a law. In the last week the Courts have again ruled the NSA eavesdropping unconstitutional. And even President Obama, friend of the intelligence agencies, ruled against Comey’s demands.

Then come the Paris attacks. Yesterday I commented on Fearful Clapper latest mongering. Afraid even to reveal his name, Mr. Clapper set the stage for Brennan’s CSIS appearance, and his remarks spy chieftain Brennan presses for the same things Comey did. As if the decision had not already been made. As if CIA can force Obama to reopen the question. As if the security services can reargue any issue until it comes out the way they want. It’s the same arrogance CIA displays over declassifying its dirty laundry on torture.

At Reuters I posted a piece on manhunts in the wake of Paris. There is good reason to suppose the attacks will end up damaging the jihadi perpetrators far more than the French republic.  This is with only the presently-existing techniques. (And, indeed, I am not aware the security services, U.S. in particular, are short of any technology or authority they need to find the bad guys.) Do not listen to the fear mongers!

Big Brother Almost Won!

September 24, 2015–The story of what happened with the National Security Agency’s massive domestic eavesdropping program just keeps getting blacker, even as it comes into better focus. Today’s entry in the NSA sweepstakes concerns what we learn from a new redaction of a review of the program codenamed Stellar Wind that resulted from an investigation by the inspectors general of five agencies. A more heavily expurgated version of this document had been declassified a while back, but the New York Times sued to get the full report released. Among the details in the latest version are ones that should make your skin crawl. During George W. Bush’s presidency, Big Brother almost succeeded in extending his umbrella across the land–and I don’t mean simply the big ear of the NSA.

Stellar Wind is the real name for the so-called “President’s Surveillance Program,” the innocuous-sounding name someone dreamed up when news of the NSA surveillance program leaked midway through Bush’s years and the administration scrambled to defend and extend it. I wrote about this at some length in my book The Family Jewels. We generally understood that Mr. Bush had approved the eavesdropping a couple of days after the September 11 attacks, that it aimed at terrorists, that he re-approved it every 45 days. There was a remarkable confrontation in March 2004 at George Washington University Hospital, where Attorney General John Ashcroft had gone for treatment of pancreatitus, and White House officials (chief of staff Andrew Card, top lawyer Alberto Gonzales, and vice-presidential counsel David Addington) went there in an attempt to induce Ashcroft to sign the latest renewal. Press accounts previously indicated that the dispute centered on NSA’s desire to widen its collection to cover all Americans. In the new declassification we learn that it was much worse.

The NSA program–like the CIA’s torture project–was based on faulty legal advice (in fact, the same faulty legal advice) from Justice Department lawyer John Yoo, with his imperial vision of presidential power. Once Yoo left the Department of Justice (DOJ) in the spring of 2003, his superiors looked at the legal advice underlying Stellar Wind and found it wanting. The problem was that there was a law that laid down conditions for what the NSA was doing and that Yoo’s analysis had wholly failed to take this into account. Yoo’s successor was not initially permitted to know of Stellar Wind and could not craft a new justification for it. Then Dick Cheney’s lawyer told DOJ it would have to justify the request before he would ask President Bush to bring the DOJ official into the circle of those who knew of Stellar Wind.

I note that because we’re seen Addington’s footprints before, all over both CIA and NSA Bush-era actions, and sure enough he’s got a central role here. Anyway, the problem in May 2004 began when DOJ found the NSA had already exceeded its authorities and was collecting beyond what the legal memoranda provided. Late the previous year DOJ officials had informed Addington and Gonzales at the White House that they had doubts regarding Stellar Wind. The White House lawyers bristled when DOJ officials asked permission to inform Deputy Attorney General James Comey. As it happened, even before Comey was formally brought into the circle he harbored doubts, which he talked over with John Ashcroft only hours before the latter had his medical emergency and went to the hospital. It was at that point, with Stellar Wind up for its latest re-authorization, that Alberto Gonzales phoned DOJ asking for a letter certifying that John Yoo’s (now discredited) legal opinions still applied. Top DOJ officials determined that the Yoo memoranda failed to accurately describe, much less justify, the NSA spying. The Justice Department refused.

At noon that day senior White House, NSA, and CIA officials convened to consider how to proceed. Vice-President Cheney told the group they might have to re-authorize Stellar Wind without the participation of the Justice Department. At that point the FBI director declared such a move would be a problem for him too. This was when the Bush people decided to have the meeting with congressional officials that Mr. Cheney makes so much of in his memoir (claiming Congress approved when he was doing)–when the White had been blocked from proceeding.

This is also the backdrop  for the rush to Ashcroft’s bedside, where Card, Addington and Gonzales pushed their way into the hospital room over the protests of Mrs. Ashcroft; and DOJ officials too rushed in to stiffen their boss’s backbone. The Justice Department officials got there first. Ashcroft told the Bush people that Mr. Comey was the man they had to deal with so long as he remained in the hospital.

At that point Mr. Bush’s subordinates left, and they presented the president with a re-authorization document the next morning that George W. Bush signed. It had no Justice Department certification, and there were three more big differences from previous iterations of Stellar Wind:

(1) the document asserted that Chapter 119 of Title 18 of U.S. Code was “displaced” by a president’s authority as commander-in-chief;

(2) explicit statements replacing language requiring some terrorism-connection for a telephone metadata connection with a stipulation the collection merely had to be in pursuance of the authorization document itself; and

(3) a disingenuous invocation of Attorney General Ashcroft’s support with an assertion that DOJ had approved similar authorizations in the past.

In the paperwork that circulated around this dispute is a memo from David Addington–the man who used to carry a vest-pocket copy of the Constitution in his jacket–saying that with this authorization President Bush had decided to reinterpret the laws of the United States.

It was at that point when the ranking officials of the Department of Justice, plus the FBI director, threatened to resign en mass if this maneuver was permitted to stand. Over the next few days President Bush met with Mr. Comey, a different renewal was crafted with the old terms, differences papered over, and the move begun toward putting Stellar Wind within some kind of legal framework. In many posts on this site I have argued that framework was unconstitutional, but at least it was not a direct usurpation of the legislative power of lawmaking in the United States, as was contained in the NSA renewal document of March 11, 2004. That document was the equivalent of a coup d’état. It would have ended constitutional government in the United States. Big Brother still has to wait.

 

The Real Deal on PDBs

September 17,2015–I wanted to be wrong this time. I really did. I was hoping that the intelligence folks had broken with their past and were really doing what they said, releasing a mountain of information to permit historians and citizens to forge a new understanding of our past. What we have is a mountain of paper, with nuggets of new detail but vast expanses of gaps. You read it here first. Before the Spooks’ Show began in Austin yesterday I said that this material would be “opened for research,” and predicted the documents would be laced with deletions of words, sentences, passages and whole pages (“Freeing the President’s Daily Brief,” September 16, 2015). That’s exactly how it is.

Someone at the event held at the Lyndon Baines Johnson Presidential Library used the figure 80 percent to quantify the amount of the material released. That claim is completely phony. It can only have been derived by including every blank back cover and front title page (and many of the 2,500 PDBs have four of them) as a page of declassified content. I’ll come back to secrecy in the PDBs further along but first there are points to be made about the practice of these CIA events and the specifics of this one.

Joe Lambert is the CIA official who runs the agency office called Information Management Services. This unit houses the CIA’s declassification unit, its Historical Review Panel, the Publications Review Board, and more. At Austin Lambert bragged the PDB event is the twenty-third such conference held by the agency since 2003, when one was organized around release of the agency’s official biography of Richard Helms. This would be admirable–or more admirable–except for the CIA’s penchant for taking double or triple credit for every thing it does. I noted in the last post how CIA had been forced into a review of the class of documents called PDBs as a result of court order. At Austin agency officials spoke as if the Historical Review Panel had noodled the idea of declassifying PDBs all by themselves. So they have to do the thing–so they have a “conference” to “release” the material.

This is not the first time. Not long ago another one of these conferences dealt with the CIA’s role in bringing Boris Pasternak’s novel Doctor Zhivago to the public. There, a reporter had FOIAed the documents on the CIA op, the agency looked good, it declassified, cooperated, and capitalized on the public’s surprise by holding the conference. At one conference on the Missile Gap most of the documents had been declassified previously, except for passages from the agency’s U-2 history it was being forced to relinquish. Veterans of the CIA proprietary Air America, originally called Civil Air Transport, were agitating to go public with their own history, and when they did that at one conference, CIA followed up with another. Caught holding lemons, each time the agency chooses to make lemonade. And those thousands of pages of cover sheets in the PDB? You can bet that when the time comes to report to overseers the amount of material the CIA has declassified this year, every one of those covers will count as content.

A few words on the actual event in Austin. The practice of hosting these kinds of events began under George Tenet, and at that time the conferences were authentic, with the CIA voluntarily choosing to release material, multiple panels to cover different facets of the material, bringing together numerous agency veterans and a significant number of outside historians. The conferences today are pro-forma,  more often than not (though not always) focused on material coming to light by necessity. There may be just one panel. The panel itself may be indifferent to the material. In Austin CIA director John Brennan delivered the keynote address, marking this as one of the more serious CIA events. Brennan devoted roughly half his time to the present and future of CIA. He managed to layer in a bit of nice background on the real documents, but relied upon chief CIA historian David Robarge to make sure the bases were covered. Both Brennan and Bobby Inman, former deputy director of central intelligence, emphasized secrecy–Inman used part of his time to denounce Edward Snowden. John Helgerson, a former deputy director of the unit that produced the PDBs, talked about CIA briefings of presidential candidates. The most substantive of the panelists were former CIA director Porter Goss, who recounted spending more of his time on the PDBs than any other single task; and Peter Clement, an officer who has participated in all aspects of producing and briefing the PDB. William McRaven, the former SEAL chieftain who took down Osama bin Laden, spoke for fifteen minutes and said “PDB” exactly twice. The supposed outside historian, William Inboden, extolled the range of material. General James Clapper ended the day by gushing over Admiral McRaven, John Brennan, and Bobby Ray Inman.

As an introduction to the President’s Daily Briefs this event rated a C – at best. It gets an A as a demonstration of the CIA’s m.o.

Now to the material itself. You’ve heard me rail at the keepers of the keys in the secrecy system. In his remarks John Brennan talked of President Obama’s dedication to bringing the American people “a clear picture of the work done on their behalf–consistent with common sense and the legitimate requirements of national security.” I submit the PDBs demonstrate my concerns, not Mr. Brennan’s clear picture. Let me give a few examples.

Some historians consider October 27, 1962 the most dangerous day of the Cold War. Amid the Cuban Missile Crisis, with nuclear-tipped Soviet rockets attaining an operational status, anti-aircraft missiles shoot down a U.S. U-2 aircraft and the generals want to retaliate. The report to the president for that day has about half the Cuba item deleted. Among the crucial issues of this history which historians debate is whether or not the U.S. knew that the Soviets’ tactical missiles we called “FROGs” had nuclear warheads. The report specifies that photographic intelligence had found “FROGs” and then deletes the details and any analysis. It also deletes everything regarding Soviet ships bound for Cuba–where maps that illustrate precisely where every Russian vessel was located have long since been declassified. Roughly half of everything in the report on reactions to the crisis in the Soviet bloc is out. Director Brennan shook his head, during his speech, in wonderment that PDBs might contain comments on the reception of the New York City Ballet performing in Russia. It turns out that that item appears in this very report–and isn’t it perfectly understandable intelligence officers might want the president to hear that at this moment of extreme tension Russians were turning out for the ballet as if things were normal.

Much was made at the Austin event of the very first of these reports, handed to President Kennedy as he sat by his swimming pool. Deleted from that report is everything about Brazil, Japan, and Egypt. Actually, during the early 1960s Egypt fought a counterinsurgency war in Yemen. Survey the PDBs and you will find Egypt and Yemen material gutted at every turn. The presidential report for August 28, 1963 came at a time when Kennedy was considering CIA support for a coup against South Vietnamese dictator Ngo Dinh Diem. Excluding the back cover this report totals six pages. Though the Vietnam item remains largely intact, nearly four and a half pages of the rest are deleted save for a comment about European squabbles over Common Market poultry pricing. The coup actually took place on November 1 of that year. There the report is sparse on the coup, as the next day it is uncertain over the murder of Diem and his brother Ngo Dinh Nhu.

In the August 31, 1965 PDB a full page is denied along with much of the substance of an item about fighting in Kashmir that started the Indo-Pakistani war of that year. Take out the cover, back page, and 1 1/2 pages deleted and the majority of this report is on the cutting room floor. Fast forward a year and we are in the run up to the Soviet invasion of Czechoslovakia. The 11-page PDB for August 17, 1968–one of those with four pages of covers–loses another 4 1/2 pages to deletions including the item about the Czechs and East Germany.

Many of those extra covers result from President Johnson’s desire, continued for at least a year and starting in 1967, for a special section on North Vietnam. I surveyed 20 of these PDBs, including the ones just prior to the Tet Offensive and the Soviet invasion, but most at random. In nearly every case the North Vietnam material is gutted. Think about that for a minute.  The secrecy rules provide that agencies must obtain specific presidential authorization to keep secret material over 50 years old. We are observing the 50th anniversary of the Vietnam escalation, and in three years we’ll be passing 50 on the whole Johnson presidency. The Vietnam war is over. South Vietnam doesn’t exist anymore. North Vietnam doesn’t exist anymore. Today we have the Socialist Republic of Vietnam (SRV). Granted that is the successor state to the old North, but that’s hardly enough. The secrecy regulations require identifiable damage to U.S. national security, and place this material in a category where the predisposition should be to release. American relations with the SRV are excellent. The revelation that the U.S. spied on North Vietnam during the war is not going to affect them. Not only is there no identifiable damage to the national security, all of this is in service of secrecy authorities that will soon sunset.

Quite a lot of the bases for secrecy I see in these redactions of the PDBs are equally flimsy, even where it relates to specific weapons. Where is the national security damage in showing what the report says about FROGs in Cuba? In contrast, the PDBs are laced with references to sources (as in “sources and methods”)–U.S. embassies and consulates, foreign politicians, BLACK ORCHID (SR-71/A-12 flights), and so on. Whatever the secrecy mavens think they’re up to, it isn’t protecting sources and methods–and it’s not what Bobby Inman thundered about yesterday.

Because of what was done here, every single PDB that was supposedly “declassified” yesterday will have to continue to live in an expensive SCIF–a Sensitive Compartmented Information Facility–under 24 hour guard because it contains any secret information at all. Requests to release every little snippet in these documents will have to be separately decided, by platoons of officials. Same with the appeals after those officials deny. All that costs. The dollars add up. This is neither common sense nor is it a legitimate requirement of national security. Shame on John Brennan. Instead of Barak Obama sending the CIA flowery letters congratulating them for making this  artificial concession to openness, he should be telling them to get on with the job.

 

Spooky Lawyer Still Peddling —-

September 10,2015–Better late than never. While running down a remark by our top spook, Fearful Leader Clapper, this morning, I ran right into his senior shyster, the ever-entertaining Robert S. Litt. I missed this when it happened back in May but the message of unreconstructed arrogance is important enough to bring to you today.

As general counsel to the Director of National Intelligence (Clapper), Mr. Litt furnishes advice on all manner of DNI actions, from new directives to the intelligence community to prepping his boss for congressional hearings.

You will recall that two years ago Fearful Leader was caught in a lie before the Senate intelligence committee when he testified under oath that the National Security Agency had no program under which it spied on hundreds of millions of Americans. That Clapper was under oath made the lie perjury. The failure to require Clapper’s resignation for misinforming Congress became another of President Obama’s favors to his spies, but that’s another story. This one is about Bob Litt.

General Clapper actually was more forthcoming than his lawyer. Clapper told reporters that he had tried to answer the question in a way that would be the least damaging for the spy agencies he commands. That represented accepting a measure of responsibility. But Mr. Litt stepped up to insist that DNI Clapper was innocent because he had forgotten about the NSA dragnet surveillance program. Litt compounded that performance, sending letters to the editor of the Washington Post, New York Times, and New Yorker magazine insisting on that construction of events. Fast forward eighteen months. This May, at a panel discussion hosted by the Advisory Committee on Transparency, Robert Litt repeated this preposterous story. At the time he was sitting right next to lawyer F. A. O. Schwarz, who had served as chief counsel to the Church Committee when it investigated the intelligence agencies in the 1970s. It was the secrecy queen and the apostle of openness together at last.

The story from Mr. Litt’s point of view is actually worse than that quick summary. Litt was preparing Clapper for the hearing. He knew that Senator Ron Wyden would be asking General Clapper about the dragnet surveillance–the senator observed protocol and informed the DNI of what he’d be asking. If Clapper forgot Litt’s job was to remind him. If Clapper confused the Section 715 eavesdropping with the Section 702 spookery, correcting that was Litt’s job too. Plus Law School 101 surely teaches that the commission of an act is not excused by innocently thinking something else. Worse, after the perjured testimony Clapper was offered the opportunity to correct it–and there again Litt’s job would have been to alert his boss to the danger and get Clapper to insert a correction. That didn’t happen either.

Now Mr. Litt is sorry. Of a correction letter he says, “I wish we had done that at the time.”

Robert S. Litt is the principal compiler of the ODNI’s chronology of intelligence appreciations and activities in respect to the September 2012 attack on the U.S. consulate in Benghazi, Libya. What should we believe about that?

 

Hillary’s Emails: Bursting the Secrecy Bubble

August 22, 2015–A quick note today and I’ll come back again soon. You’ll have heard me often enough talking about the mind-deadening effects of government secrecy. Consider this: Hillary Clinton, the possible Democratic Party presidential candidate and former secretary of state in the Obama administration, is losing ground in opinion polls for an issue that revolves around the handling of secret documents, or more precisely, whether classified information was sent by her in private emails. The opinion poll losses are a real political cost.

The simple fact is that the public does not even know if Hillary really mishandled secret information.  We simply know there is a possibility, based on a survey by unnamed State Department officials of a small cross-section of the message traffic that moved across her circuits. Mind you, the likelihood is high that some classified information was transmitted this way, but there is a huge difference between a two-year old email that announces Secretary of State Clinton will make a secret visit to Afghanistan tomorrow, versus one that contains key information about, for example, the private U.S. opinion of the latest Israeli approval for building additional settlements on the West Bank. Plus the likelihood is also high that whomever conducted this survey decided some of what passed by email should have been classified at the time but was not.

Problematic classified information represents only a small fraction of what gets made secret. Often the need for secrecy is short-lived, as in Hillary’s itinerary. Sometimes the secret is merely what (open) information someone is looking at. Other times the secret is low-grade, such as the rate of casualties for U.S. forces in battle in the last week, month, or other reporting period.

The probability is high that most of what transitted Hillary’s server and phone was this kind of material. Some of the rest is a phony charge, as in seems important enough to classify today but was not then.

But the system is so crude it does not make a distinction. For example, Chelsea Manning is in prison today for Wikileaks releasing hundreds of thousands of classified messages. Big secrets? Did you look at them? Probably 98 percent of what was in that leak was of the low-grade variety. (There’s a reason for that, too: Manning was on an interagency network for sharing where the participating agencies and armed services were putting only their lowest-grade stuff out. There’s a whole conversation to have about what really happened with the 9/11 Commission’s demand the government “break down walls” between agencies, but this is not the time for it.) The story with Edward Snowden was different, but the point is that Hillary, Manning, and Snowden are all accused of precisely the same thing.

Here’s more: President Barack Obama’s White House put out a release a few months ago that revealed the name of the CIA station chief in Afghanistan. Technically Mr. Obama is guilty of the same offense as Hillary, mishandling classified information. Former CIA officer John Kiriakou was sent to prison for this. General David Petraeus, CIA chief and ex-commander in Afghanistan, was convicted and sentenced for this. Scooter Libby, a senior acolyte of our former vice-president, Dick Cheney, was convicted of obstruction of justice in connection with an episode where their office deliberately leaked classified information naming a CIA officer. Obama’s gaffe had been inadvertent. During earlier presidential campaigns there were charges against John Kerry and Bob Kerrey both, concerning things they did in Vietnam, that revolved around leaks of still-classified information, or based on just-released information. In the 1990s CIA director John Deutch was found to have classified materials at his home.

I submit to you that when the secrecy system reaches the point that senior officials routinely fall afoul the regulations for handling classified information, the system is out of control. We need a system that safeguards real secrets, high-grade information, not one capable of shifting political opinions in presidential elections based upon public misunderstanding of the secrecy system, and obscure officials’ assertions of blanket national security claims. Change the system. The alternative is that one day the secrets will swallow the government.

 

Tantrum to Practical: All Grandfathers are not Equal

June 1, 2015–As we enjoy this brief moment while Big Brother is a criminal for spying on you, we also need to move on the next stage of this foolish security nightmare. Last week, in the run up to the crash of Obama’s misguided attempt to resuscitate the eavesdropping law the White House, ending with Barack himself, put out way overblown claims (as seems to have become de rigeur) for the necessity for this domestic spying–which can be linked to only one case since 2001, and that for merely giving money to a Somali group. Others late in the week, to include Fearful Leader Clapper, the DNI; and John O. Brennan, guardian of the torture report; mixed in their own rhetoric. On May 25 I wrote of this as NSA’s tantrum (“Toddler’s Grandfather: NSA’s Terrible Twos Tantrum”) because senior officials had begun to go around saying that even if their legal authority expired the NSA could go on spying on everybody because the authority is “grandfathered” into law.

Well, now we have entered that unhappy state of entropy and it’s time to determine what, exactly, “grandfather” means. I am no lawyer, but I am a pretty fair wordsmith and I’m here to say the NSA’s trying to eat its cake after having it too. If they can go ahead spying just because, once upon a time, the authority existed (even though now it doesn’t), that’s way out of bounds. By that measure prohibition still exists because once it did. The death penalty remains in effect everywhere it has been repealed. Eighteen-year olds and women cannot vote because once they could not. The people who are trying to end abortion by passing legislation can forget it because that procedure was previously legal. Those who want controls on guns, same thing. Forget trying to enact EPA pollution standards. The Vietnam war is still with us because the repeal of the Tonkin Gulf resolution is meaningless.

That kind of approach effectively guts the power of law except for the first law on any given thing. This cannot be the meaning of law under the United States Constitution, nor the intention of the Founding Fathers.

A “grandfather clause” has to have some concrete current application in order to be valid. For example, my apartment goes co-op so I am in at the insider price, grandfathered so that cannot be denied to me.  With respect to NSA eavesdropping a proper concrete context would be specific investigations that were approved and in progress as of 12:01 AM on June 1.

As I understand it, our frantic eavesdroppers are now saying that “enterprise” programs are concrete contexts and therefore grandfathered in. This kind of investigation is a broad, open-ended, multi-directional inquiry, as in the phrase “we investigate terrorists.” The enterprise investigation bears the same relation to NSA surveillance as “signature strikes” do to the CIA/JSOC drone war. It’s what you do with surplus capacity that has nowhere else to go.  It’s a background tone for the sound system. This has nothing to do with concrete and pre-approved investigations.

That’s not all. In fact the blanket authorities timed out before June 1. The Foreign Intelligence Surveillance Court had set a specific deadline for NSA to apply for the next 90-day authorization of its blanket programs. The spooks did not meet the filing deadline. The authorization duly expired.

At 12:01 AM on June 1 there was no enterprise program to be grandfathered.

As has been noted in this space before, we seem to have entered a new Wilderness of Mirrors. National security is becoming the single greatest threat to democracy.

 

Toddler’s Grandfather: NSA’s Terrible Twos Tantrum

May 25, 2015–A few days ago it seemed as if we were finally set to emerge from this wiretapping nightmare. Congress is going on vacation so the spooks have to go home! (Only in America!)

The law containing the provisions under which the National Security Agency (NSA) claims authority to carry out dragnet eavesdropping of citizens is set to expire in six days–on May 31st. Congress had been working on a replacement bill, the so-called “USA Freedom Act,” which contained tighter definitions of what is covered, a more explicit requirement for legal review, a modicum of public representation at the Foreign Intelligence Surveillance Court (FISC), and a clause prohibiting NSA from holding actual custody of the telephony data. The House of Representatives passed that bill but it stalled in the Senate.

In the Senate there was a clash of preferences. That body’s majority leader, Kentucky Republican Mitch McConnell prefers the original, draconian surveillance rules. An unreconstructed Neanderthal, McConnell has apparently drunk the kool-aid and believes the dragnet eavesdropping, which cannot be demonstrated to have had much of an impact at all, is a vital tool for security efforts in the age of terrorism. McConnell would not let the USA Freedom Act come up for a vote. His preferred legislation, with its euphemistic “Section 207,” and “Section 215” alleged “authorities,” then went down in flames. McConnell could not generate the 60-vote supermajority necessary to pass this bill in the U.S. Senate. At that point everyone left for recess (vacation).

It looked like a new age was about to dawn. The old law expires. The new bill, not passed, is not in place. Net result: there is no legal basis whatever for conducting dragnet surveillance. McConnell is said to have demanded senators return early from vacation so they can vote on May 30th. But it is not clear that the task of passing a bill in the Senate, reconciling that with what the House has already passed, and getting the result to President Obama for his signature can be physically accomplished before the deadline for the law’s sunset.

Now enter the spooks. There is a trial balloon in today’s New York Times. The proverbial anonymous source now asserts that the sunset of the law does not matter. The alleged authorities for dragnet eavesdropping were “grandfathered” into law. In this view they cannot be undone!  Got that? Behind the scenes at the NSA, intelligence officers were questioning these programs on cost effectiveness grounds because they did not accomplish anything. A firestorm of public criticism followed Edward Snowden’s revelation of the projects. A presidential review group found reasons to question the eavesdropping (though it did not quite bring itself to knock it down), then a government watchdog panel went the whole distance. A federal judge found the law “probably” unconstitutional–and now a circuit court of appeals finds the baseline argument the spooks have been relying upon–that citizens have no interest in the privacy of their business (read phone) records–is without legal basis. The NSA skipped its most recent deadline for filing for the next FISC approval of its dragnet eavesdropping (meaning that its authority for this is rescinded). Now the law actually expires.  So all of this happens, we are told, and none of it makes any difference to the spooks’ authority to intrude on everybody? This is zombie law! 

More to the point, this is the behavior of a toddler in the terrible twos. Take away her toy and she throws a tantrum. In a democracy, when the security services decide they are above the law they have gone far past the line. Not only is the behavior immature and improper, it violates their very oaths to the Constitution. The time has come to clean house.