“Mildly Nauseous?”

May 7, 2017–Federal Bureau of Investigation (FBI) director James B. Comey told the Senate Judiciary Committee a few days ago that thinking his actions last October 28, scant days ahead of the 2016 presidential election, might have had some impact on its outcome makes him “mildly nauseous.” Poor Jim Comey! He’s had all kinds of rocks thrown at him, he says. “Lordy!” it’s “been painful,” he says. All this is uttered in a tone of wonderment as if it’s a surprise people might connect any FBI action–more specifically the re-opening of the Hillary Clinton email investigation on the eve of the election–to her defeat. Perhaps Mr. Comey doesn’t know (but if he does not, he has no business being in charge of the nation’s primo investigative agency). The fact is that lots of people have been talking about Comey’s action in exactly those terms since October 29, 2016. Readers of this space, for example, saw two commentaries on Director Comey’s actions (“Spooks Gone Wild!!”, posted that same day; and “Obama and Comey,” November 2, 2016), both posted before Election Day, that worried Mr. Comey’s actions would have the precise effect they did.

A couple of weeks ago the New York Times (April 23, 2017) ran an extensive investigative piece by journalists Matt Apuzzo, Michael S. Schmidt, Adam Goldman and Eric Lichtblau that explored the inner workings of the FBI’s decisions in this case. They quote candidate Donald J. Trump saying, “This changes everything!”

The point is the impact of Comey’s actions was obvious, not hidden in any way. In an email to the work force Mr. Comey explained that not informing Congress of the resumed FBI inquiry– which would have conformed to the Bureau’s standard operating procedure– was wrong. The authors of the Times story quote Comey’s email: “It would be misleading to the American people were we not to supplement the record.”

Let’s review the byplay. Director Comey could have followed Bureau standard procedure, which would also have conformed to the instructions he had from the Attorney General. What he did went outside both those rubrics. That requires some significant rationale. We now know the FBI had several related investigations underway at the same time. Trump political operative Paul Manafort was under investigation for acting as an illegal foreign agent for Russian and Ukrainian interests. Other Trump operatives, separately or together, were potential subjects of an investigation into Russian political actions in the United States. Whether these were different investigations or the same one we don’t yet know. We do know that the Director of National Intelligence and the chief of the Department of Homeland Security had already gone on record, in early October 2016, charging that Russia had been conducting these actions. So far as we know at this writing, the FBI was resisting public reference to its own inquiries in this area. Had Mr. Comey’s concern only been whether he was misleading Americans if he did not own up to re-opening the Clinton email affair, he could have preserved an equal political footing by simultaneously revealing the Trump-centered inquiries.

Instead Director Comey, in a charged political atmosphere, was willing to confirm to the public an investigation targeting Hillary Clinton but not to place the Trump campaign in the same soup. His resignation ought to have been on President Obama’s desk the day after the election. Now he is only “mildly nauseated?” Rubbish!

This is not about Mr. Trump’s margin of victory, or Ms Clinton’s political mistakes that cost her the election. It is not about politics per se. It is about an action by a security agency that had any political impact at all–and about the actions of a director who knew, but stubbornly refused to acknowledge, his actions had that effect. The most plausible explanation for Comey’s actions–the argument I made at that very time–is that he was attempting to avoid criticism of the FBI (from Republicans) for alleged inactions in the email affair. If so, Mr. Comey was putting the FBI’s–and his own–interests ahead of those of the entire American political system. For that reason alone he should be gone.

Now Director Comey is on Capitol Hill asking for an unregulated extension of government surveillance powers, the so-called “Section 702” eavesdropping provision of the USA Freedom Act, set to expire this year. The head G-Man insists the spy powers are absolutely necessary. But now Mr. Comey has credibility and judgment problems. Americans can no longer believe what he says nor can they trust his judgment. That is the price of the FBI’s election interference.

The Clinton Emails (3)–Games WERE Played

October 19, 2016–Games were played with the Clinton emails, just not the ones you think. Or perhaps, just the ones you thought. From the beginning of the Clinton email saga you read in this space that this was a scam about secrecy, and new evidence for the bankruptcy of the secrecy system. Now we have the proof. The FBI has released texts of interviews it conducted during its investigation of the email scandal. In combination with the Bureau’s own final report, and the parallel inquiries of journalists, we can now assemble a picture of the handling of one of Hillary’s typical emails.

Under instructions to release material handled on Mrs. Clinton’s private email server the State Department reviewed swathes of these for opening to the public. As part of the government’s standard approach in matters of secrecy, the messages were circulated to other agencies for their say. The government calls this “equity,” as if agencies can own information–which they cannot, by law. Nevertheless the “equity” arrangement has been used as a major tool to manipulate declassification and secrecy, as it was here.

The State Department had simply intended to release the emails. The Federal Bureau of Investigation objected. It considered that some of these emails ought to be secret. (The first problem with this set up–you’ll also have seen that here before–is that we have FBI deciding after the fact that something should have been secret before, and then claiming the breach of regulations designed to protect secrecy at the inception of a document.)

A senior State Department official, Patrick Kennedy, in charge of the email release project, phoned the FBI, where he spoke to Brian McCauley. This was May 2015 and McCauley was the Bureau official responsible for its foreign operations. The FBI had just lost two slots on the staff of the U.S. embassy in Baghdad–and here is where the story gets muddled. McCauley adverts that he initially asked State to reinstate the Baghdad field agents and offered at his end to help get FBI to back down on its secrecy demand enabling State to move forward. Once he learned the message concerned Benghazi, McCauley relates, all bets were off. On the State Department’s side, Patrick Kennedy has loyally said he thought the message was not secret, though certain redactions might be required for other reasons, and that he knew nothing of any FBI offer of a trade.

The way this story was first reported alleged that it was the State Department that had begged for a trade–with the implication it sought in that way to shield Hillary Clinton.

So is the game played. Secrecy is not wielded simply for the protection of national security, it is used as bludgeon to obtain all manner of interagency “cooperation.” The losers are the American people, who are not only robbed of the true record of their government’s actions, but are subjected to the arbitrary measures of a system in which policy is forged partly by barter.

You have already read here (for example, “Hillary’s Emails: Bursting the Secrecy Bubble,” August 22, 2015) that the email controversy really shows the need to reform the laws governing secret information, which have made it impossible to function as a senior official without breaking them. Here’s a good illustration of why–an act taken in the open at time x is suddenly recast as secret at time y–and then the charge of breach of secrecy is used to extract some other action. Add to this the fact that investigation of the breach is in the purview of the FBI and you have the makings of a completely vicious circle.

It is tragic that this whole “Hillary Emails” thing has been made into an election issue in a campaign for the presidency of the United States. The emails controversy has been manipulated from beginning to end, is based on a very ephemeral set of acts pumped up by persons with other agendas, and has even been exploited by foreign governments to meddle in American politics. Do not make an issue of the emails without carefully considering the full issue.

 

FBI’s Solution

March 30, 2016–So the FBI got what it wanted. Now we can all shiver in our boots because they wanted content on one individual cellphone. Just to revisit some of the things I’ve said here in recent posts–

–Access to the San Bernardino phone was not necessary. The FBI had no case to make.

–Much more important was the protection of the programming principles for the devices. By vitiating that the FBI could access anyone’s iphone/cellphone. That was a larger purpose.

The ease with which the phone was broken into, as the Bureau now tells us, suggests its earlier claim– that it had no way to recover the data and therefore required Apple’s help–was bogus.

Now the Bureau should be required to divulge to Apple the specifics of the security weaknesses in its iphone devices that enabled them to be breached. Failing this, the FBI will stand revealed as lying in its other stipulation–that it only ever wanted to discover the contents of this one device, and that it was not seeking a back door to access people’s private information on a whim. If the FBI does not divulge that information, actually it appears Apple will have cause to sue the Bureau.

Public interest should also be accommodated. If FBI obtained this access by fraudulent claim and now refuses to make the public whole, that behavior appears consonant with what the Racketeer Influenced and Corrupt Practices (RICO) Act (PL 91-452) defines as criminal activity (here including extortion, fraud, robbery [of individuals’ proprietary information], copyright infringement, and obstruction of justice).

Perhaps citizens should bring a RICO Act suit against the FBI. The damage to the public wrought here has been huge and a treble damages award might very well defund the Federal Bureau of Investigation. If the FBI considers itself protected by the Patriot Act and related legislation–then that, too, serves to confirm its true purpose in seeking this access. Just saying.

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.

 

Charlie Hebdo– Sad

January 7, 2015–Breaking news this morning that several gunmen attacked the offices of the French satirical weekly Charlie Hebdo colors the day. At last report eleven had been killed and others wounded. Reportedly the attackers were three men, disguised in ski masks, seeking to avenge what they regard as cartoons lampooning Muslim apostle Mohammed. President Francois Hollande rushes to the scene. President Barack Obama promises any American help that seems desirable.

The stories that will be written about this incident have yet to be inked but already you can see the hacks aligning themselves to play the buttons of the American people. Another push on the hysteria button is just around the corner. South Carolina Republican Senator Lindsay Graham successively tweets that U.S. intelligence capabilities to detect something like this have atrophied, and  the security forces to stop it don’t exist. No doubt Fearful Clapper and others will be stepping up right behind Graham.

Don’t believe it, either claim. U.S. intelligence capabilities have atrophied because we can’t torture? That’s silly. As CIA never tires of telling us, with only a few exceptions all their torture was done by 2003 and, anyway, their later attempts to preserve a standby capability and legal authorization were over with by 2007-2008. Since that time the CIA and/or FBI have busted up an alleged Times Square plot, a Subway plot, the underwear bomber plot, the copy machine bomb plot, a Portland plot, and others.

Equally to the point, American leaders and CIA torturers may or may not get a pass on the outrages they have already inflicted, but, if today the Charlie Hebdo or any other incident leads the Americans to re-institute CIA torture, at that point you can be certain that Americans–past offenders probably included–will face future war crimes charges.

As for security capabilities taken separately, by some measures the United States is the most over-policed nation on the globe. Indeed the story of recent months here is one of minorities and other populations rejecting overbearing police intimidation and violence. American police need more training, more stringent regulation, less incentive to violate civil rights, and certainly less military equipment and armament.

Again and again–in the Fort Hood massacre, in the Navy Yard shootings, in other incidents here and abroad–the attackers’ delicate psychological mechanisms break down, converting long alleged grievances into immediate perceived causes for action. My bet is the Charlie Hebdo murders will end up in this category too. “Detecting” longstanding personal grievances is not a legitimate intelligence function. Where detection occurs it is by coincidence. No amount of apparatus will establish a reliable standing capability to detect personal grievances. Nor do police need more SWAT teams. Far more security would be gained by making it impossible to obtain assault rifles and other automatic weapons.