Albright Drops Pretense of Neutrality, Goes All In With MEK Terrorists

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I have long criticized David Albright for his behavior in helping those who have tried to fan the flames over the years for a war with Iran. His role usually consists of providing technical “analysis” that somehow always works to support the latest allegations from sources (most often identified as diplomats) who selectively feed information to either AP reporter George Jahn or Reuters reporter Fredrik Dahl. As the P5+1 group of countries and Iran have moved closer and closer to achieving a final deal on Iran’s nuclear program, the Iran war hawks are growing more and more desperate. That desperation this week has resulted in David Albright dropping all pretense of being a neutral technical analyst and joining forces with the terrorist group MEK in slinging new, unsubstantiated allegations about Iran’s nuclear program.

On Tuesday, Albright published a strange document (pdf) on Iran’s nuclear program at his Institute for Science and International Security website. Also on Tuesday, the Wall Street Journal published an editorial that included a quote from Albright.

The reason I say that Albright’s document at the ISIS website is strange is that the document is simply titled “Spin, Spin, Spin” and, after the author list (Andrea Stricker joins him in the byline), the document puts a very strange quotation right after the dateline:

“The bigger the lie…”

The “Spin, Spin, Spin” title could be excused as a clever pun if the article’s topic were the centrifuges that Iran uses for enrichment of uranium. Instead, the topic is exploding bridge wire detonators. The title is a complete dismissal of everything that Iran has to say about the detonators, ascribing it to spin rather than fact. But then Albright and Stricker move beyond the mere spin accusation all the way to accusing Iran of lying–before they lay out a single bit evidence to support their allegation.

The document opens by attacking press coverage of Iran beginning to discuss EBW’s with the IAEA:

Media reporting immediately following the release of the IAEA’s safeguards report focused on Iran’s willingness to discuss the exploding bridge wire (EBW) detonators. That is certainly good news, but did Iran resolve the IAEA’s concern? The answer has to be no or probably not. This fact was only lightly covered in the media over the weekend. Some misinterpreted Iran’s willingness to discuss the issue with making progress on it. One group at least even went so far as to declare that Iran had “halted nuclear activities in the areas of greatest proliferation concern and rolled back its program in other key areas.” But if Iran continues to work on aspects of nuclear weapons, as the IAEA worries, then it is necessary to reserve judgment on that question.

After a while, the document moves on to the accusation that Iran is lying:

So, while it is significant that Iran has been willing to talk about this issue for the first time since 2008 when it unilaterally ended cooperation over the matter, the key consideration is whether Iran is actually addressing the IAEA’s concerns. More plainly, is it telling the truth? The EBW issue must be taken in the context of the large amount of evidence collected by Western intelligence agencies and the IAEA over many years, detailed in the annex to the November 2011 safeguards report, indicating EBWs were part of a nuclear weapon design effort and military nuclear program. From that perspective, Iran has not answered this issue adequately and appears to have simply elevated the level of its effort to dissemble.

Ah, so Albright is basing the accusation of lying on the “evidence…detailed in the annex to the November 2011 safeguards report”. Okay then. Never mind that the annex, based almost exclusively on the “laptop of death” has been pretty thoroughly debunked and seems likely to be a product of forgery. About seven and a half years ago, some dirty hippie figured out that the most likely source of this forgery was the MEK. One can only wonder how Albright has gone from being enough of a scientist to seeing the holes in the forgery to even be quoted by Gareth Porter in a 2010 debunking of the data to now throwing his entire weight (while apparently deciding to throw away his entire reputation) behind the allegations.

The full extent of Albright’s loss of intellectual honesty becomes clear when we look at the Wall Street Journal editorial. At least the Journal is open about its latest round of accusations coming directly from the MEK: Read more →

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DOD Reasserts Its Right to Force Feed While Not Denying Force Feeding Is Torture

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Last Thursday, as a number of outlets reported, Judge Gladys Kessler declined to renew her own Temporary Restraining Order prohibiting the government from force feeding Abu Wa’el Dhiab. As she wrote, Dhiab was willing to be force fed without withdrawing his feeding tube each session and without use of the restraining chair. But the government refused, and so, “faced with an anguishing Hobson’s choice,” in the face of the “intransigence of the Department of Defense,” Kessler did not renew her TRO and ordered DOD to, “abide by their own Standard Operating Protocols, and that the standard for enteral feeding is whether Mr. Dhiab is actually facing an ‘imminent risk of death or great bodily injury.'”

Only, it’s not clear that’s the standard. In fact, the government itself says the standard may be simply body weight of less than 85% of ideal body weight.

A slew of filings have been released in Dhiab’s case in the last month (see below). But key among them are some filings submitted in April and early May, which were just released Friday.

Effectively, the delayed release of these documents reveals that back on May 7, one of the government’s primary rebuttals to claims about the conditions under which Dhiab was force fed last year was not to refute those claims, but rather to claim he had no standing to complain because he was not — at that point — being force fed.  Only 6 days later Gitmo cleared Dhiab to be force fed.

Underlying this discussion is Dhiab’s claim that the government has made the standards for force feeding arbitrary so as to be able to subject those detainees leading force feeding campaigns to painful treatment to get them to stop.

To substantiate that argument, the memorandum unsealed on Friday lays out the changes made to Gitmo’s force feeding protocol in November and December. Those changes include:

  • Deletion of limits on the speed at which detainees could be force fed
  • Elimination of guidelines on responding to complaints about speed of force feeding
  • Change of weight monitoring from daily to weekly
  • Deletion of chair restraint guidelines (DOD made a special SOP to cover restraint chair they have thus far refused to turn over)
  • Expansion of scenarios in which prisoners can be force fed, including those at 85% of ideal body weight (IBW)
  • Deletion of provisions against on-off force feeding
  • Discontinuation of use of Reglan (this has to do with potentially permanent side effects from the drug)
  • Replacement of phrase “hunger strike” with phrase “medical management of detainees with weight loss”

In response, the government argued (at a time Dhiab was not eating but before they put him on the force feeding list) that he didn’t have standing because he had not been force fed for 2 months. It also made a sustained defense of the 85% of IBW.  Much of the rest of the response described how prisoners are currently force fed.

Dhiab’s lawyers responded by parsing the language of the government response closely. They point out that:

  • No one actually involved in the force feeding of detainees submitted a declaration in the case
  • The Senior Medical Officer whose declaration forms the basis of much of the response didn’t arrive in Gitmo until this February, and so has no first hand knowledge of last year’s force feeding
  • The guy who preceded him did not submit a declaration even though he remains in the Navy, stationed at Jacksonville NAS
  • The government relies on a 2006 DOD Standard Operating Procedure document rather than the specific Gitmo SOPs written last year

Ultimately, Dhiab argues that the government has stopped some of the most abusive practices associated with force feeding — which they compare (with a doctor’s declaration in support) to water torture — while being sued.

Respondents state that the force-feeding “is” conducted humanely, and that detainees “are” not being force-fed at quatnties and speeds amounting to water torture. That might be partially true today, to the extent respondents have suspended some (but not all) of their abusive practices during the pendency of litigation challenging those practices. But Respondents utterly fail to rebut Petitioner’s showing of past abusive practices.

And of course, they’re making this argument as the government claims they shouldn’t have to turn over videos or Dhiab’s medical records from last year, the latter because they couldn’t be relevant to this suit because they couldn’t affect what might happen to Dhiab going forward — in spite of the fact that the SOPs remain unchanged.

This is all cross-allegation at this point; we may find out more when the government has to start turning over this stuff in June.

But it seems remarkable, the way the government has hidden details from last year, even while controlling Dhiab’s force feeding status and with it their legal argument.

April 18, 2014: Motion for preliminary injunction, with sealed supplemental memorandum

April 22, 2014: Dhiab speaks to lawyers

April 23, 2014: Dhiab resumes skipping meals

April 24, 2014 Status report

May 7, 2014: Sealed opposition to preliminary injunction

May 12, 2014: Sealed reply to opposition; government refuses to provide 2013 medical records, videos, restraint chair SOP

May 13, 2014: Emergency motion to preserve evidence; Dhiab placed back on force feeding list; nurses start cajoling him about eating

May 14, 2014: Order to reply to emergency motion; according to his lawyer, Jon Eisenberg, Dhiab force fed (all other force feeding details come from Eisenberg)

May 15, 2014: Opposition to emergency motion; according to filing, Dhiab had not yet been force fed; Dhiab force fed in afternoon

May 16, 2014: Reply to opposition to emergency motion; Kessler issues TRO; Dhiab claims Sergeant harasses him about a FCE

May 21, 2014: Status report hearing

May 22, 2014: Kessler does not reissue TRO

May 23, Kessler orders partial disclosure; documents unsealed; Dhiab force fed

May 24: Dhiab force fed twice

May 25: Dhiab force fed twice

May 26: Dhiab voluntarily takes food and nutrient

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No Protection for International Communications: Russ Feingold Told Us So

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Both the ACLU’s Jameel Jaffer and EFF have reviews of the government’s latest claims about Section 702. In response to challenges by two defendants, Mohamed Osman Mohamud and Jamshid Muhtorov, to the use of 702-collected information, the government claims our international communications have no Fourth Amendment protection.

Here’s how Jaffer summarizes it:

It’s hardly surprising that the government believes the 2008 law is constitutional – government officials advocated for its passage six years ago, and they have been vigorously defending the law ever since. Documents made public over the last eleven-and-a-half months by the Guardian and others show that the NSA has been using the law aggressively.

What’s surprising – even remarkable – is what the government says on the way to its conclusion. It says, in essence, that the Constitution is utterly indifferent to the NSA’s large-scale surveillance of Americans’ international telephone calls and emails:

The privacy rights of US persons in international communications are significantly diminished, if not completely eliminated, when those communications have been transmitted to or obtained from non-US persons located outside the United States.

That phrase – “if not completely eliminated” – is unusually revealing. Think of it as the Justice Department’s twin to the NSA’s “collect it all”.

[snip]

In support of the law, the government contends that Americans who make phone calls or sends emails to people abroad have a diminished expectation of privacy because the people with whom they are communicating – non-Americans abroad, that is – are not protected by the Constitution.

The government also argues that Americans’ privacy rights are further diminished in this context because the NSA has a “paramount” interest in examining information that crosses international borders.

And, apparently contemplating a kind of race to the bottom in global privacy rights, the government even argues that Americans can’t reasonably expect that their international communications will be private from the NSA when the intelligence services of so many other countries – the government doesn’t name them – might be monitoring those communications, too.

The government’s argument is not simply that the NSA has broad authority to monitor Americans’ international communications. The US government is arguing that the NSA’s authority is unlimited in this respect. If the government is right, nothing in the Constitution bars the NSA from monitoring a phone call between a journalist in New York City and his source in London. For that matter, nothing bars the NSA from monitoring every call and email between Americans in the United States and their non-American friends, relatives, and colleagues overseas.

I tracked Feingold’s warnings about Section 702 closely in 2008. That’s where I first figured out the risk of what we now call back door searches, for example. But I thought his comment here was a bit alarmist.

As I’ve learned to never doubt Ron Wyden’s claims about surveillance, I long ago learned never to doubt Feingold’s.

 

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Big NSA Funding Recipient, Ethiopia, Spies on Journalists in US

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Screen Shot 2014-05-13 at 12.56.26 PMAlong with the release of his book today, Glenn Greenwald has released a stash of documents, many of them new. One of them PDF 39) shows how much funding NSA gives some of its international partners.

The amounts involved aren’t huge — even Pakistan, the leading recipient, gets just $2.5 million, and most recipients get far less.

But Ethiopia is third on the list, receiving somewhere around $450,000. Not a ton, but not chicken scratch, either. Presumably, much of that targets Somalia.

Still, I think it significant, given that Ethiopia is getting sued in the US for spying on journalists based in the US.

A Washington area man with ties to Ethiopia’s political opposition sued that country’s government in federal court Tuesday, alleging that agents had used powerful spyware to hack into his computer and snoop on his private communications for more than four months.

The suit says that forensics experts found more than 2,000 files related to a spyware program called FinSpy, including evidence that it had accessed the plaintiff’s Skype calls, e-mails and Web-browsing history in violation of U.S. wiretapping laws.

The case is the latest sign that the government of Ethi­o­pia, an American ally with a history of repressing political opponents, journalists and human rights activists, has used sophisticated Internet technology to monitor its perceived enemies, even when they are in other countries.

“The Ethio­pian government appears to be doing everything it can to spy on members of the diaspora, especially those in contact with opposition groups,” said Nate Cardozo, a staff attorney for the Electronic Frontier Foundation, a civil liberties group based in San Francisco that prepared the suit.

I imagine working closely with the NSA teaches you a lot about how better to target its dissidents overseas.

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Notice Of Tinkering Going On

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screenshotHello one and all. This is just a very brief advisory that we are going to be doing some updating to Emptywheel blog today. It should start in the next 30 minutes to hour from the time of this post. The site may be down briefly. Frankly we think we have it slicked out pretty well, but you never know when things hop off the drawing board and into practice.

Even if things go smoothly, as hoped, I am sure there will be some refining and testing to do throughout the day. In that regard, please bear with us and help us by giving us feedback. As always, we are doing the update to give you a better overall experience, so your input is valuable.

Thank you for your patience and assistance. Exciting times!

Also: McCaffrey is our engineer. May be more trouble than originally anticipated.

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Verizon VP: Company-Based Transparency Reports Don’t Help Consumers

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There was a fascinating panel of Telecom execs and bloggers discussing human rights at RightsCon yesterday. Among others, Verizon Executive Vice President and General Counsel Randal Milch spoke.

As I noted in passing, Verizon published an update to their Transparency Report the other day. Particularly as compared to AT&T’s bogus report, the Verizon report was laudable for its explanation of what it couldn’t show, such as when it acknowledged that its report did not include the hundreds of millions of customers whose records got turned over under Section 215.

We note that while we now are able to provide more information about national security orders that directly relate to our customers, reporting on other matters, such as any orders we may have received related to the bulk collection of non-content information, remains prohibited.

It also acknowledged something obvious but that which should be explicit: when the government obtains content from Verizon, it sometimes gets metadata as well.

Some FISA orders that seek content also seek non-content; we counted those as FISA orders for content and to avoid double counting have not also counted them as FISA orders for non-content.

All this is useful information that lends the report itself credibility.

So when I first approached Milch, I thanked him for the quality of his report.

Which is why I was so surprised when he said the government should be in the business of transparency reports, not the providers. I challenged that, noting that an easy comparison of AT&T and Verizon’s reports strongly suggests that Verizon demands more legal process for requests than AT&T. He dismissed that, suggesting any differences arise from the different kind of client base the providers have.

Granted, Milch was talking about your average consumer, not … me.

But it seemed bizarre. Or perhaps it was a testament that Milch and Verizon generally don’t want to have to compete in this front.

Milch answered one other question of mine: I asked whether the Verizon/Vodaphone split affected Verizon’s obligations to the UK (that is, to GCHQ). He claims it didn’t affect it at all, that it was more an investment stake and that none of Verizon’s cell call records were in the UK. (No, I didn’t point out that the records are right where GCHQ wants them, in places accessible under Tempora).

So at least according to Milch’s claims, my theory laid out here is wrong.

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Framework in Place for P5+1, Iran Final Nuclear Negotiations

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After several days of warnings from both sides not to expect too much from the current round of talks between the P5+1 group of countries and Iran on Iran’s nuclear program, we have word today that the two sides have agreed to the framework under which the negotiations are to proceed. Furthermore, the date for the next formal session has been announced and the head negotiator for the P5+1 side will visit Tehran a week before the full session.

Here is George Jahn of AP on today’s announcement:

Iran and six world powers ended the opening round of nuclear talks on an upbeat note Thursday, with both sides saying they had agreed on a plan for further negotiations meant to produce a comprehensive deal to set limits on Tehran’s nuclear ambitions.

In a joint statement, they said the next round of negotiations would begin in Vienna on March 17, continuing a process likely to take at least six months and probably longer.

Expectations had been modest as the talks started Tuesday, and the upbeat tone on a framework for future talks appeared aimed in part to encourage skeptics inside and outside Iran that the negotiations had a chance to succeed despite huge gaps between the Iranians and the six powers.

More from Reuters:

“We have had three very productive days during which we have identified all of the issues we need to address in reaching a comprehensive and final agreement,” EU foreign policy chief Catherine Ashton told reporters.

“There is a lot to do. It won’t be easy but we have made a good start,” said Ashton who speaks on behalf of the six powers – the United States, Russia, China, France, Britain and Germany.

Senior diplomats from the six nations, as well as Ashton and Iran’s Foreign Minister Mohammad Javad Zarif will meet again on March 17, also in Vienna, and hold a series of further discussions ahead of the July deadline.

Tehran says its nuclear program has no military aims and has signaled repeatedly it would resist dismantling its nuclear installations as part of any deal.

“I can assure you that no-one had, and will have, the opportunity to impose anything on Iran during the talks,” Zarif told reporters after the Vienna meeting.

A senior U.S. official cautioned their discussions will be “difficult” but the sides were committed to reach a deal soon.

“This will be a complicated, difficult and lengthy process. We will take the time required to do it right,” the official said, speaking on condition of anonymity. “We will continue to work in a deliberate and concentrated manner to see if we can get that job done.”

It is reported in multiple sources (including Fars News), that Catherine Ashton will visit Tehran March 9-10, ahead of the March 17-20 negotiations that will take place in Vienna. It appears that Ashton and Iranian Foreign Minister Javad Zarif will be holding monthly meetings as the talks progress.

There are a number of upbeat stories at Mehr News, Fars News and PressTV today about the agreement, although there also is still a story from the head of the IGRC noting that the negotiations are “prone to problems“.

Zarif spoke to reporters in remarks that appear to have been delivered after the press conference:

Iranian Foreign Minister Mohammad Javad Zarif reiterated that Tehran and the world powers didn’t discuss military and scientific issues in their talks, and underlined that Iran will not dismantle any of its nuclear installations.

“We are focused merely on the nuclear issues and the negotiations don’t include defensive and scientific issues and everyone has accepted that Iran’s defensive capability is no the subject for the negotiations,” Zarif said, addressing Iranian reporters in Vienna on Thursday after meeting EU Foreign Policy Chief Catherine Ashton who heads the Group 5+1 (the US, Russia, China, Britain and France plus Germany) delegations in the talks with Iran.

“We won’t close any (nuclear) site and have announced that no one should prescribe anything or dictate a solution to the Iranian nation; the way to ensure the peaceful nature of our program is not closing the sites, rather its peaceful nature should be displayed openly, transparently and based on the international regulations and supervision,” he added.

From those remarks, it appears that Zarif feels that it has been agreed that Iran’s missile program will not be a part of the negotiations. Note also that Iran considers the Parchin site to be a defense installation, so this comment first referring to defense issues being off the table but then talking about openness and transparency seems to be dancing between keeping Parchin off limits to inspectors and opening it. Despite these uncertainties, though, another article from Fars News describing this part of Zarif’s comments has a very interesting passage:

“We agreed that no one ‘surprises’ the other side with new claims,” Zarif said.

That bit must come as a huge disappointment to the crews in Israeli and US intelligence operations who “find” new documents whenever they need to disrupt diplomatic progress.

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On the Definition of Dragnet “Identifier”

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Last month, I noted that ODNI failed to redact a reference to Verizon in one of the phone dragnet primary orders, which helped to confirm that Verizon was the provider ordered to provide only its domestic or one-end domestic call records to NSA under this order.

I’d like to look at another redaction fail (also, IIRC, pointed out to me Michael) from that document dump.

In the February 25, 2010 order, part of the footnote describing what identifiers NSA can use to contact chain was left unredacted.

Screen Shot 2014-02-15 at 12.42.04 PM

The footnote starts on the previous page; this is the end of the description (the big redaction below it modifies one of the terms in the list of terror groups associations).

Given all the discussion about whether NSA does or does not collect cell phone data, I think it of particular interest that IMSI and IMEI — two ways to identify cell phone users — appear in this footnote. It’s actually not clear whether their inclusions mean they can or cannot be used as identifiers.

But there’s reason to believe the footnote says they can be used as identifiers.

The footnote first appeared in the March 5, 2009 order — the first written after Judge Reggie Walton started trying to clean up the dragnet mess. Screen Shot 2014-02-15 at 1.01.28 PM

By that point, NSA had informed Walton that an additional querying tool had regularly accessed the 215 dragnet to perform analysis of certain identifiers.

If an analyst conducted research supported by [redacted] the analyst would receive a generic notification that NSA’s signals intelligence (“SIGINT”) databases contained one or more references to the telephone identifier in which the analyst was interested; a count of how many times the identifier was present in SIGINT databases; the dates of the first and last call events associated with the identifier; a count of how many other unique telephone identifiers had direct contact with the identifier that was the subject of the analyst’s research; the total number of calls made to or from the telephone identifier that was the subject of the analyst’s research; the ratio of the count of total calls to the count of unique contacts; and the amount of time it took to process the analyst’s query.

But this was before NSA explained it treated all correlated identifiers for a particular RAS-approved person as RAS-approved,

The end-to-end review revealed the fact that NSA’s practice of using correlated selectors to query the BR FISA metadata had not been fully described to the Court. A communications address or selector, is considered correlated with other communications addresses when each additional address is shown to identify the same communicant(s) as the original address.

Though it had provided some kind of description of this practice in an August 18, 2008 filing that almost certainly served as back-up for the August 19, 2008 order that first started specifically ordering IMSI and IMEI data.

A description of how [redacted] is used to correlate [redacted] was included in the government’s 18 August 2008 filing to the FISA Court, While NSA previously described to the FISC the ractice of using correlated selectors as seeds, the FISC never addressed whether [redacted] correlated selectors met the RAS standard when any one of the correlated selectors met the RAS standard. A notice was filed with the FISC can this issue on 15 June 2009.

 

All of which is to say that several of the items discussed during the 2009 review pertained to how NSA tracked identities over time, particularly phone-based identities that spanned multiple cell phones.

Which would explain why it would want to track both phone numbers themselves, but especially the handset and SIM identifiers (though in the case of burner phone “correlation,” those details wouldn’t help to make a match).

None of this should be surprising. As I said, it would be shocking if the nation’s counterterrorism professionals accepted a dragnet with less functionality than the one available to DEA under AT&T’s Hemisphere program, and a key part of that program involves matching cell phone identities (though remember, Hemisphere at least used to permit tracking of geolocation, too).

But assuming that footnote defining “identifier” affirmatively includes IMSI and IMEI as potential identifiers, which would seem logical, it’s yet one more data point showing how central the use of cell phones is to the dragnet.

That still doesn’t mean the NSA collected cell phone data, or collected it from providers besides AT&T and Sprint. But it sure seems to indicate an priority on such data.

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Dragnet at Bernie’s: On Spying on Congress

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Bernie SandersIt turns out that Mark Kirk — not Bernie Sanders — was the first member of Congress to raise concerns about the NSA spying on Senators after Edward Snowden’s leaks started being published. Kirk did so less than a day after the Guardian published the Verizon order from the phone dragnet, in an Appropriations Committee hearing on the Department of Justice’s budget (see at 2:00). After Susan Collins raised the report in the context of drone killing, Kirk asked for assurances that members of Congress weren’t included in the dragnet.

Kirk: I want to just ask, could you assure to us that no phones inside the Capitol were monitored, of members of Congress, that would give a future Executive Branch if they started pulling this kind of thing up, would give them unique leverage over the legislature?

Holder: With all due respect, Senator, I don’t think this is an appropriate setting for me to discuss that issue–I’d be more than glad to come back in an appropriate setting to discuss the issues that you’ve raised but in this open forum–

Kirk: I’m going to interrupt you and say, the correct answer would say, no, we stayed within our lane and I’m assuring you we did not spy on members of Congress.

The first substantive question Congress asked about the dragnet was whether they were included in it.

After that, a few moments of chaos broke out, as other Senators — including NSA’s representative on the Senate Intelligence Committee, Barb Mikulski — joined in Kirk’s concerns, while suggesting the need for a full classified Senate briefing with the AG and NSA. Richard Shelby jumped in to say Mikulski should create the appropriate hearing, but repeated that what Senator Kirk asked was a very important question. Mikulski agreed that it’s the kind of question she’d like to ask herself. Kirk jumped in to raise further separation of powers concerns, given the possibility that SCOTUS had their data collected.

The very first concern members of Congress raised about the dragnet was how it would affect their power.

And then there was a classified briefing and …

… All that noble concern about separation of power melted away. And some of the same people who professed to have real concern became quite comfortable with the dragnet after all.

It’s in light of that sequence of events (along with Snowden’s claim that Members of Congress are exempt, and details about how data integrity analysts strip certain numbers out of the phone dragnet before anyone contact-chains on it) that led me to believe that NSA gave some assurances to Congress they need not worry that their power was threatened by the phone dragnet.

The best explanation from external appearances was that Congress got told their numbers got protection the average citizen’s did not, perhaps stripped out with all the pizza joints and telemarketers (that shouldn’t have alleviated their concerns, as some of that data has been found sitting on wayward servers with no explanation, but members of Congress can be dumb when they want to be).

And they were happy with the dragnet.

Then, 7 months later, Bernie Sanders started asking similar — but not the same –questions. In a letter to Keith Alexander, he raised several issues:

  • Phone calls made
  • Emails sent
  • Websites visited
  • Foreign leaders wiretapped

He even defined what he meant by spying.

“Spying” would include gathering metadata on calls made from official or personal phones, content from websites visited or emails sent, or collecting any other data from a third party not made available to the general public in the regular course of business.

In response, Alexander rejected Sanders’ definition of spying (implicitly suggesting it wasn’t fair), while using a dodge he repeatedly has: the Americans in question are not being targeted, even while they might be collected “incidentally.”

Nothing NSA does can fairly be characterized as “spying on Members of Congress or other American elected officials.”

[snip]

NSA may not target any American for foreign intelligence collection without a finding of probable cause that the proposed target of collection is a foreign power or an agent of a foreign power. Moreover, as you are aware, whenever an NSA activity results in the incidental collection of information about Americans, that information is handled pursuant to the very robust procedures designed to protect privacy interests — procedures that must be approved by the Attorney general or the Foreign Intelligence Surveillance Court, as appropriate. All those protections apply to members of Congress, as they do to all Americans.

Alexander then addressed just one of the three kinds of spying Sanders raised: phone data (which, if I’m right that NSA strips Congressional numbers at the data integrity stage, is the one place Alexander can be fairly sure Sanders’ contacts won’t be found).

Your letter focuses on NSA’s acquisition of telephone metadata…

And used the controls imposed on the raw data of the phone dragnet as an excuse for not answering Sanders’ question.

Among those protections is the condition that NSA can query the metadata only based on phone numbers reasonably suspected to be associated with specific foreign terrorist groups. For that reason, NSA cannot lawfully search to determine if any records NSA has received under the program have included metadata of the phone calls of any member of Congress, other American elected officials, or any other American without that predicate.

Alexander totally ignored Sanders’ two other specified concerns: emails sent and websites visited.

Which is mighty convenient, because for a very large segment of that collection (the internet metadata collected under EO 12333 and via PRISM, though not the data collected domestically before 2011 or domestic upstream collection), NSA believes it doesn’t even need Reasonable Articulable Suspicion to search on US person identifiers. Read more →

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Christmas Eve at Emptywheel

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Well, it is that time of year again. We have reached another Christmas eve here at the Wheelhouse. Here at Casa de Bmaz we are still finishing up some shopping, doing some cooking and getting ready for happy hour. Marcy and Mr. Wheel are in the Keystone state visiting family and Jim White and family are preparing for a sunny Christmas day down in Florida.

Don’t have a lot to say here, just a hello and thanks for making this forum the best in the blogosphere. Times change, but the consistency and quality of our friends, colleagues and commenters is amazing. Thank you.

One last note, today marks the second anniversary of the passing of our colleague and friend Mary Perdue, or as she was simply known here “Mary”. There are two days that I will forever associate with Mary, Kentucky Derby day because of her love for horses and Christmas Eve. So, as we did last year at this time, raise a glass, have a laugh, think of the Constitution and salute.

If you are around, chime in with what you are up to, what you are eating and cooking, what you are drinking and what you are thinking.

Have a Merry Christmas and Happy Holidays folks!

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