“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.

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.

 

U.S. Intelligence Turned Inside Out

 

February 5, 2014– Is all this really happening? Maybe I should pinch my arm and try to wake up. But it’s not a dream–it’s a nightmare. United States foreign intelligence turning on Americans. This NSA eavesdropping scandal has created such distortions that, at some point, you begin to wonder whether the entire system is compromised. Government responses to the scandal have gone so over the top that one suspects the foundations of the intelligence community may be cracking.

Let’s begin with the fundamental mission. As officials have reiterated ad infinitum since the Snowden revelations began, the purpose of U.S. intelligence is to discover and track foreign enemies. All the powers the NSA, CIA, and other agencies exercise are supposed to be aimed at that goal. The agencies operate in secrecy, on the dark side. But there moments when, for a brief time, they come into focus. The most important of these is the annual “threat assessment” hearings. Every year around this time the Director of National Intelligence (DNI) and the agency chiefs appear before the congressional intelligence committees to give the public a glimpse of their world view. The spy chiefs talk to the legislators but at the same time speak to the American people. The Senate Select Committee on Intelligence (SSCI) and House Permanent Select Committee on Intelligence (HPSCI) are fora in which our agency bosses expounded on the Soviet threat, in the day; efforts to develop ballistic missiles around the world, nuclear proliferation, including the misguided and mistaken claims for Iraqi weapons of mass destruction; drug cartels and international crime syndicates, whatever the issues that have their hair on fire. Since 9/11 our intelligence chiefs have consistently represented the top threat as terrorism. Only last year did it drop to second place, with the threat of cyberwar given the pride of place. Now, suddenly, the NSA eavesdropping scandal has changed that.

Last week the DNI, General James R. Clapper, and his assembled brass, presented their annual threat assessment to the Senate committee. They did the same at the HPSCI yesterday. The two appearances cast a pall on the American intelligence enterprise. Our so-called experts now believe the leading threat is not foreign at all.

General Clapper told the Senate intelligence committee that a leading threat to the United States comes from whistleblowers. (Cue Edward Snowden.) Let’s parse that for a moment: Whistleblowers are employees of U.S. intelligence who become so concerned about the U.S. intelligence programs they see around them that they decide to destroy their careers by leaking to the public the abuses which exercise them. How to cope with that threat? You clamp down on U.S. intelligence. The snake eats its own tail. This is more than a security measure. The NSA, CIA and other agencies depend on smart analysts and operators, willing to go out on a limb to make sense of the welter of obscure and often contradictory information out there, and argue theses which bosses might think fanciful. Nothing could be better calculated to destroy the morale of the intelligence community than to represent its own officers, individually and collectively, as the main enemy.

I’ve written here repeatedly, as have others, on the chilling effect of eavesdropping on the public. Consider how chilling it must be for intelligence officers to be told they are a threat too.

There it is. Just to keep the ball in view, Clapper’s biggest threat this year remains cyberwar. But terrorism–the stated rationale for all that intrusive NSA eavesdropping–has fallen to fourth. Whistleblowers are a bigger threat to American security than terrorists. Of course, the reason whistleblowers pose a threat is the impact their disclosures may have on the powers of the intelligence community. Director Clapper and his minions are substituting the private, parochial interests of their agencies for the national security of the United States.

On the theme of flimsy congressional oversight, featured here several times, we can add that Senator Dianne Feinstein sat still for all this in her Senate committee. At HPSCI yesterday, Representative Mike Rogers did Feinstein one better. Clapper hardly needed to advance his dubious threat analysis. Rogers reached past him, trying to lead FBI director James B. Comey into an assertion that journalists who report the abuses revealed by whistleblowers are “fencing” stolen goods. What congressional oversight is even possible in this climate?

Rogers has, without evidence, accused Snowden repeatedly of being a Russian or Chinese spy, and last fall at a media gabfest with former spook Michael V. Hayden the two bantered about their desire to throttle the leaker. Edward Snowden got the message. Recently he told a German interviewer, in all seriousness, that he could not return to the United States because people want to kill him.

All this gives new meaning to aphorisms–always presented as an error–about shooting the messenger. Do not lose sight of the fact–and it is a fact–that the problem resides in the substance of U.S. intelligence programs, not in what Edward Snowden or anyone else says about them. That intrusive eavesdropping is revealed in the NSA’s own documents. Not only can the evidence not be disputed, it has been further confirmed in the additional documentation the U.S. government has declassified in the course of this controversy.