Rebekah Brooks Arrested

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The Guardian is reporting that Rebekah Brooks, Rupert Murdoch’s henchwoman in the UK, has been arrested in the phone hacking scandal.

The Metropolitan police said a 43-year-old woman was arrested at noon Sunday, by appointment at a London police station. Brooks, 43, resigned on Friday as News International’s chief executive. She is a former News of the World editor.

Brooks is due to give evidence before MPs on the home affairs select committee on Tuesday. An arrest by appointment on a Sunday by police is unusual. In a statement the Met said:

“The MPS has this afternoon, Sunday 17 July, arrested a female in connection with allegations of corruption and phone hacking.”

“At approximately 12.00 hrs a 43-year-old woman was arrested by appointment at a London police station by officers from Operation Weeting [phone hacking investigation] together with officers from Operation Elveden [bribing of police officers investigation]. She is currently in custody.”

“She was arrested on suspicion of conspiring to intercept communications, contrary to Section1(1) Criminal Law Act 1977 and on suspicion of corruption allegations contrary to Section 1 of the Prevention of Corruption Act 1906.” [my emphasis]

A couple of comments on this.

Note this was “by appointment,” but done on a Sunday–an unusual move. When Andy Coulson was arrested back on July 8, also by appointment, the Guardian reported that the Met had sped up the arrest because of leaks.

The arrests had been planned to take place before 8 August, when Operation Weeting had agreed to pass all the relevant material in their possession to lawyers acting in the civil cases against News International for victims of phone hacking – thereby giving suspects the opportunity to discover what evidence the police hold against them.

The Guardian understands News International had promised police they would not make public the existence of evidence identifying Coulson and the other journalist, but that detectives began to fear the information would be leaked, after reports appeared suggesting that Coulson approved payments to police officers.

A similar worry–that investigative details were leaking out–might explain the timing here. Or, there may be a reason to have Brooks all good and arrested before her appearance at Parliament on Tuesday.

And speaking of leaks, remember what I pointed out on Friday. At a time when Murdoch seemed intent on protecting Brooks, Saudi Prince Alwaleed bin Talal–the biggest News Corp stockholder after Murdoch–called for her ouster. I guess he’s looking pretty prescient about now, huh? Of course, the Saudis have their own means of figuring out what’s going on in the world.

Rupert gave Brooks $5.6 million on her way out the door. I wonder whether that will dissuade her from getting chatty with the police?

Update: Brooks; spokesperson now suggests this arrest will make it harder for her to be very forthcoming with Parliament on Tuesday.

Mrs Brooks is due to appear in front of the Commons media select committee on Tuesday to answer MPs questions on the hacking scandal.

Mrs Brooks’ spokesman said her arrest would make her appearance at the committee “pretty tricky”.

The spokesperson also claims that Brooks was informed (formally, I’m guessing) she would be arrested after he resignation on Friday.

A spokesman for Mrs Brooks says the Met police notified her on Friday, after her resignation had been agreed, that she would be arrested.

Update: Meanwhile, David Cameron’s chumminess with the Murdoch crew is coming under scrutiny.

Mr Cameron has held more than twice the number of meetings with Murdoch executives as he has with any other media organisation. There were two “social” meetings between Mr Cameron and Ms Brooks, one of which was also attended by James Murdoch, and in return they invited the Prime Minister to a succession of parties.

Mr Cameron and Ms Brooks, who are neighbours in West Oxfordshire, met over Christmas – including a get-together on Boxing Day – just days after Vince Cable was relieved of responsibility for deciding the fate of News Corp’s BSkyB bid. Downing Street has always refused to discuss what they talked about, but officials insist that the subject of the BSkyB takeover was never raised.

While James Murdoch met Mr Cameron twice over the period, on both occasions he avoided the spotlight of Downing Street. That was not a qualm shared by his father, who was invited to visit Mr Cameron at Downing Street days after the general election.

The nice thing about these meetings coming out is that they’ll allow MPs to focus on the underlying scandal here–the quid pro quo between Murdoch and government, particularly as it relates to regulatory approvals.

Problem is, I’m not sure Labour is ready to go there fully yet, given that Tony Blair had the same coziness w/Rupert as Cameron has.

Update: And here’s another reason not to get your hopes up about Tuesday’s Parliamentary appearance.

The MP who will lead the attack on Rebekah Brooks and Rupert and James Murdoch this week over their roles in the phone-hacking scandal has close links with the media empire, it is revealed today.

John Whittingdale, the Conservative chairman of the Culture, Media and Sport committee, admitted he was an old friend of Mr Murdoch’s close aide, Les Hinton, and had been for dinner with Ms Brooks.

The Independent on Sunday has also learnt that Mr Murdoch’s daughter Elisabeth, seen as the future saviour of the company, has also met Mr Whittingdale a number of times. Among her 386 “friends” on Facebook, the only MP she lists is Mr Whittingdale. He is also the only MP among 93 Facebook “friends” of Mr Hinton.

This also provides further reason to believe that Brooks was arrested to give her cover for Tuesday.

It is understood that the committee has legal advice that as Ms Brooks, and the Murdochs, have not been arrested by officers investigating hacking, they must reveal, under oath, what they knew.

Update: Ut oh. The Murdoch men seem to have developed a scheduling conflict with their Tuesday testimony. Nevermind–it looks like they’re still scheduled.

Update: London’s police chief Paul Stephenson just resigned.

Rand Paul’s Timely Questions

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Charlie Savage has a report describing how Rand Paul’s hold the reconfirmation of Robert Mueller threatens to push the process beyond the time when Mueller’s ten year appointment date.

[A] necessary first step — enacting legislation that would create a one-time shortened term and make an exception to a 10-year limit on the amount of time any person may serve as director — has been delayed by Senator Rand Paul of Kentucky, a libertarian-leaning Republican who was elected last year. He is invoking a Senate rule that allows any member to block a swift vote on a bill.

There may be significantly less time to complete the steps necessary to avoid a disruption at the F.B.I. than had been generally understood.

The widespread understanding has been that Mr. Mueller’s term will expire on Sept. 3, because he started work as F.B.I. director on Sept. 4, 2001.

But the administration legal team has decided that Mr. Mueller’s last day is likely to be Aug. 2, because President George W. Bush signed his appointment on Aug. 3, 2001. Coincidentally, Aug. 2 is also the day the government will hit a debt ceiling if Congress does not raise it.

I’ll be curious, though, whether the questions Paul has submitted to be answered before the vote might also lead to a delay, too In addition to questions about:

Circumstances implicating the Iraqis indicted in Bowling Green, KY
Investigative lapses of Zacarias Moussaoui that happened under Mueller’s predecessor
A Resource Guide: Violence Against Reproductive Health Care Providers calling boycotts “intimidation” (that might be more easily answered if the government would get over its squeamishness about calling Scott Roeder a terrorist)
A Missouri fusion center report suggesting support for Ron Paul (and Bob Barr!) might be a political risk factor for domestic terrorism

Paul also asks for the FBI to describe how many time it used each of the following tools, whether against citizens or non-citizens, and how many convictions resulted:

John Doe roving wiretaps
Section 215 orders (including its use for library records)
National Security Letters
Suspicious Activity Reports

He also asked, with respect to SARs, whether they got minimized after being investigated.

Now, Paul did not ask for this data in the most savvy fashion. For example, he did not specify on his Section 215 request that he wanted details on the secret program that uses cell phone data to collect geolocation. Nor did he ask generalized questions about minimization. Nor did he specify he wanted this data in a form which he could release publicly.

But these questions are, to a significant extent, the kind of disclosures that Democrats and Paul had been pushing to add to the PATRIOT Act.

In the past, DOJ has not exactly been forthcoming with some of this information. Even assuming they’ll answer Paul in classified form (particularly his question about SARs minimization), it’s not clear how quickly they’ll be able to produce some of this information.

All of which adds to the possibility that Paul’s request might hold up Mueller’s re-confirmation past August 2. If that happens–Tom Coburn has suggested–there are a range of surveillance authorizations that might be open to challenge because no confirmed FBI Director had approved them.

Nice to see someone wring some transparency out of this silly reconfirmation process.

 

William Welch’s Gimmick and the Harassment of James Risen

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As Josh Gerstein reports, Leonie Brinkema has unsealed her November 2010 ruling quashing the government’s subpoena of James Risen to testify before the grand jury. Gerstain describes several interesting details revealed in the ruling–including that the government withheld information, including details surrounding the 2005 testimony of, apparently, a Senate staffer. Go check out those details.

There are a couple of things I wanted to add to Gerstein’s analysis, though.

First, when the subpoena was first announced, I suggested that it appeared that the government’s inclusion of ticky tack charges like mail fraud seemed like an effort to invent a reason to require Risen’s testimony.

It appears likely they planned to [subpoena Risen again] all along and crafted the charges against Sterling accordingly. For example, they claim they need Risen to testify, in part, to authenticate his book and the locale where alleged leaks took place.

Risen can directly identify Sterling as the individual who illegally transmitted to him national defense information concerning Classified Program No. 1 and Human Asset No. 1. Because he is an eyewitness, his testimony will simplify the trial and clarify matters for the jury. Additionally, as set forth below, Risen can establish venue for certain of the charged counts; can authenticate his book and lay the necessary foundation to admit the defendant’s statements in the book; and can identify the defendant as someone with whom he had a preexisting source relationship that pre-dated the charged disclosures. His testimony therefore will allow for an efficient presentation of the Government’s case.

Locale issues stem from mail fraud charges that appeared ticky tack charges up to this point. But the government is now arguing that that information–as distinct from whether Sterling served as a source for the information at issue–is critical to these ticky tack charges. Which, it seems they hope, would get them beyond any balancing test on whether Risen’s testimony is crucial for the evidence at question.

As it turns out, Brinkema’s opinion makes it clear that the biggest window she left the government to call Risen at trial was authentication.

Although the government might have a plausible argument that such authentication may be necessary at trial, it cannot argue that the government has a compelling interest in authenticating chapter 9 during grand jury proceedings.

But given that she has rejected the government’s venue articles, it appears the mail fraud charges are a cheap attempt to enlarge the possible window of necessity of calling Risen for authentication.

In other words, it appears likely that Welch is just using a gimmick to try to force Risen to testify.

Which brings us to Risen’s claim the government is harassing him. Of note, Brinkema dismisses the claim that a new Attorney General couldn’t harass Risen, because some of the other lawyers on the case might be Bush dead-enders.

The issuance of the 2010 subpoena under a new Attorney General does not remove the specter of harassment, because we do not know how many of the attorneys and government officials who sought Risen’s testimony in 2008 are still in their jobs and to what extent, if any, they advised the new Attorney General about approving the subpoena.

She also notes that requesting all his book proposals supports a harassment charge; I would suggest it does so more so when you consider the possibility they were harassing Risen for the warrantless wiretap story that would also have been in the book proposal. But Brinkema doesn’t consider the way the Obama Administration has made some crazy ass arguments to defend Bush against illegal wiretap charges, which shows Obama’s DOJ is protecting the program itself as fiercely as Cheney did. In addition, she doesn’t consider Welch’s history of being a sloppy, overly aggressive prosecutor (though her disapproval of the broad scope of the Welch subpoena suggests she’d be open to such an argument).

But given my suspicion that a community of interest subpoena in this case might have served as a fishing expedition for the government’s investigation in the warrantless wiretap case, I’m particularly interested in the date the grand jury was convened in this case.

A grand jury sitting in the Eastern District of Virginia began investigating the disclosures about the [MERLIN] operation in

or about March 2006.

That’s not surprising, mind you. But it does date when a grand jury subpoena asking for a community of record might have been issued. And it does suggest that this investigation started at the same time as the government was going apeshit over their exposure on the illegal wiretap front.

“SWIFT” Boating the Russian Mafia

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Remember that GCHQ/MI6 agent, Gareth Williams, who was found dead in a duffel bag last year?

At first, the narrative around his death centered on rumors he had been killed in a weird gay sex game. Amid such sensational reporting, other articles revealed Williams worked closely with the NSA on wiretapping Rashid Rauf, one of the men involved in the 2006 plot to bring down planes with small bottles of liquid. Williams’ work with NSA is all the more interesting when you consider American manipulation of that investigation and their subsequent squeamishness about sharing the intercepts.

But now there’s a new theory out now (from the Daily Mail, which was early to the now discredited sex crime theory): that Williams was killed by the Russian mafia because he was working on a way to track money laundering.

But now security sources say Williams, who was on secondment to MI6 from the Government’s eavesdropping centre GCHQ, was working on equipment that tracked the flow of money from Russia to Europe.

The technology enabled MI6 agents to follow the money trails from bank accounts in Russia to criminal European gangs via internet and wire transfers, said the source.

‘He was involved in a very sensitive project with the highest security clearance. He was not an agent doing surveillance, but was very much part of the team, working on the technology side, devising stuff like software,’ said the source.

He added: ‘A knock-on effect of this technology would be that a number of criminal groups in  Russia would be disrupted.

‘Some of these powerful criminal networks have links with, and employ, former KGB agents who can track down people like  Williams.’

The rest of the Daily Mail article on this hypes how scary and omnipresent the Russian mafia are.

But money laundering is money laundering. Terrorists do it. Organized crime does it. Spy services do it. Corporations do it (often legally). And banksters do it, among others.

And there doesn’t appear to be anything about this description to suggest the Russian mafia would be specifically targeted by the technology. Indeed, the description of their exposure as a “knock-on effect” suggests everything would be targeted (which sort of makes sense; you can’t track money laundering unless you track the “legitimate” part of finance that makes it clean).

Which is why I find this latest narrative–with its complete lack of attention on the technology, instead focusing exclusively on the Russian mob–so interesting. Because finding a way to track money laundering, of any sort, would just be a new way to do what US intelligence has already been doing with SWIFT.

You’ll recall that SWIFT is the messaging system that tracks international money transfers; our use of it to track terrorist finance was first exposed by James Risen and Eric Lichtblau in 2006. In 2009, the US and EU got in a big squabble over whether the US would continue to have access when the servers moved to Europe. They ultimately signed a deal on access. But in March it became clear we were cheating on that deal–among other things by making all specific search requests orally, thereby bypassing the audit provisions demanded by the Europeans.

I increasingly suspect the furor around the SWIFT disclosures has to do with a concern over maintaining the perceived sanctity of tax havens even as it becomes clear our government has routinely been accessing money transfer information using nothing more than administrative subpoenas.  And I increasingly suspect the ongoing squabble between Europe and the US over SWIFT access has to do with America’s asymmetrical access to what has been described as the Rosetta stone of money transfers.

I’ve become convinced, the response to NYT’s reporting on SWIFT was (and remains) so much more intense than even their exposure of the illegal wiretap program. The shell game of international finance only works so long as we sustain the myth that money moves in secret; but of course there has to be one place, like SWIFT, where those secrets are revealed. And so, in revealing that the US was using SWIFT to track terror financing, the NYT was also making it clear that there is such a window of transparency on a purportedly secret system.And the CIA has, alone among the world’s intelligence services, access to it.

There are hints in Lichtblau’s book that back my suspicion that revealing SWIFT was so problematic because it reveals monetary transfers aren’t as secret as the banksters would like you to think they are. One reason people grew uncomfortable with the program was because “some foreign officials feared that the United States could turn the giant database against them.” (234) Others worried that the US might be “delving into corporate trade secrets of overseas companies.” (248) And when Alan Greenspan helped persuade SWIFT to continue offering US access to the database, he admitted how dangerous it was.

If the world’s financiers were to find out how their sensitive internal data was being used, he acknowledged, it could hurt the stability of the global banking systems. (246)

Now, Lichtblau doesn’t describe explicitly what these risks entail, but this all seems to be about letting the CIA see, unfettered, the most valuable secrets in the world, financial secrets. The world’s globalized elite has to trust in the secrecy of their banking system, but in fact the CIA (of all entities!) has violated that trust.

It turns out (the LAT reported this contemporaneously with the NYT reporting; I’ve just now read this in the context of Risen’s affidavit to quash his Sterling subpoena) that the CIA once developed a clandestine way to access SWIFT but were persuaded not to use it because doing so would “compromis[e] the integrity of international banking.”

CIA operatives trying to track Osama bin Laden’s money in the late 1990s figured out clandestine ways to access the SWIFT network. But a former CIA official said Treasury officials blocked the effort because they did not want to anger the banking community.

Historically, “there was always a line of contention” inside the government, said Paul Pillar, former deputy director of the CIA’s counterterrorism center. “The Treasury position was placing a high priority on the integrity of the banking system. There was considerable concern from that side about anything that could be seen as compromising the integrity of international banking.”

Ah, for the halcyon days when people believed international banking had any integrity to compromise!

My point, though, is that the US has had the potential capability to track Russian mobsters since SWIFT let us access the databases after 9/11, particularly now that we’re making all our specific requests orally. So far as I know, no one has ended up dead in a duffel bag over that access.

Moreover, there would be a great deal of people who would like to prevent the UK from getting their own back door into the global finance system, if that’s really the reason Williams was killed. (Note, Williams was also reportedly about to join the UK’s cybersecurity team, which might offer other reasons to want him dead.) Sure, the Russian mafia are among that group, but so would be many others with the means to murder a spook.

Now, it may be that this entire new narrative is just as sketchy as the sex crime one was. Or it may be that this is a preemptive attempt to suggest only Russian mobsters have anything to hide.

But I do find this latest narrative mighty intriguing.

NSA Managers Modified or Supressed Studies on ThinThread and Trailblazer

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As bmaz reported while I was looking at flowers in Northern MI, POGO liberated via FOIA the Inspector General report central to the Thomas Drake case.

While much of the report is redacted (except for, perhaps unsurprisingly, a number of comments about limitations to ThinThread that have been decontextualized by redactions), a few interesting details remain.  First, the management control program (see PDF 48) was not included in the scope of the review; it appears that privacy protections were not a significant part of the review (even while this article claims they were included in the investigation). That’s interesting because both do show up in Siobhan Gorman’s reporting. Further, the government was trying to withhold Drake’s own materials that might not have related to the substance of the initial IG complaint (and it destroyed a notebook Drake had submitted). While all that is very vague and now mooted by the plea deal in the case, it suggests the government tried hard to prevent Drake from providing evidence of further problems with Trailblazer beyond those laid out–and endorsed–in the IG complaint.

I’m much more interested, however, in a claim not made in Gorman’s reporting that is left unredacted in the IG Report: that NSA management modified or suppressed studies on the program. As a threshold matter, Michael Hayden and his buddies seem to have been cognitively unaware at times of where DOD’s IG cited the initial Hotline complaint that launched this investigation (the report cites the complaint on PDF 5 and PDF 11; on PDF 122, the IG Report notes NSA management’s conflation of the complaint with the report results specifically with regard to claims about cost) and where it confirmed that complaint. Yet the extensive discussion of test results starting on PDF 21 make it clear the investigation examined test results in detail. Furthermore, this IG response to Management complaints on PDF 123 make it clear that the IG confirmed the complaint that management fiddled with studies.

(C) Management Comments. NSA management comments also questions [sic] the Executive Summary’s statement that “NSA modified or suppressed studies and [redacted] and stated that the audit report did not identify where the information was obtained.

(C) Audit Response. We have documented information to support this statement; however, because of fear of reprisal, we agreed to keep the sources anonymous.

In other words, not only did the IG confirm the tests showed ThinThread performed better than Trailblazer, but it appears to confirm that NSA management tried to hide that fact.

While Gorman’s reporting doesn’t say the studies were suppressed, she did report on the existence and results of those studies.

In what intelligence experts describe as rigorous testing of ThinThread in 1998, the project succeeded at each task with high marks. For example, its ability to sort through massive amounts of data to find threat-related communications far surpassed the existing system, sources said. It also was able to rapidly separate and encrypt U.S.-related communications to ensure privacy.

[snip]

A number of independent studies, including a classified 2004 report from the Pentagon’s inspector-general, in addition to the successful pilot tests, found that the program provided “superior processing, filtering and protection of U.S. citizens, and discovery of important and previously unknown targets,” said an intelligence official familiar with the program who described the reports to The Sun. The Pentagon report concluded that ThinThread’s ability to sort through data in 2001 was far superior to that of another NSA system in place in 2004, and that the program should be launched and enhanced.

NSA management’s apparent suppression of studies showing ThinThread’s better performance is all the more interesting given the reference–on PDF 48–of an earlier NSA Inspector General report concluding that Trailblazer had had “improperly based contract cost increases, non-conformance in the management of the Statement of Work, and excessive labor rates for contractor personnel.” In other words, SAIC–which implemented Trailblazer and had close ties to Michael Hayden’s aides–was bilking the federal government at the same time as Hayden and others were apparently suppressing studies showing that SAIC’s solution was not the most effective solution.

Our Intelligence Industrial Complex in action!

The evidence that NSA management was suppressing studies that showed ThinThread performed better than Trailblazer adds one more wrinkle to the government’s attempt to prosecute Thomas Drake. The IG clearly worried that revealing who made this complaint would lead to retaliation from NSA management. Yet, as it turns out, one of the documents for which Drake was charged was titled, “Trial and Testing,” suggesting it pertained to such testing issues.

I guess the IG had reason to worry after all.

James Risen’s Community of Interest

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I’ll probably have several things to say about the James Risen filings of the past week. But for the moment, I wanted to focus on his assertions about the government’s access of his phone records.

Remember, these assertions are not new: Josh Gerstein reported them in February.

Risen said the government never notified him that they were seeking his phone records. But he said he got an inkling in 2008 that investigators had collected some information about his calls.

“We heard from several people who had been forced to testify to the grand jury that prosecutors had shown them phone records between me and those people—not the content of calls but the records of calls,” he said. “As a result of what they told us, my lawyers filed a motion with the court as asking how the Justice Department got these phone records and whether or not they had gotten my phone records.”

“We wanted the court to help us decide whether they had abided by the attorney general’s guidelines,” Risen said. “We never got an answer from the court or the government.”

But Risen’s affidavit discussion of the government accessing his phone records includes a few interesting new details. First, the earliest chronological mention he makes of the government accessing his phone records–he makes it very clear he’s talking about records, not content–dates to 2006.

Around the same time that the Government was making public statements about potentially prosecuting journalists, Brian Ross and Richard Esposito of ABC News reported on May 15, 2006, that senior federal law enforcement officials had informed them that the government was tracking the phone numbers of journalists without the journalists’ knowledge as part of an effort to root out the journalists’ confidential sources. According to the article, the journalists’ phones were not being “tapped,” but the government was tracking the incoming and outgoing numbers called and received on the journalists’ phones. The story stated that the government was examining the phone calls and contacts of journalists from ABC News, The New York Times, and the Washington Post as part of a “widespread CIA leak investigation.” I was mentioned by name as one of the reporters whose work the government was looking into.

More interesting, Risen notes that someone who testified before the warrantless wiretapping grand jury–not the Sterling grand jury–was shown copies of his phone records.

I have reason to believe that the story by Brian Ross and Richard Esposito is true. Since that story was published, I have learned from an individual who testified before a grand jury in this District that was examining my reporting about the domestic wiretapping program that the Government had shown this individual copies of telephone records relating to calls made to and from me.

Which ties in with Risen’s claim that this subpoena (and the other two) is about persecuting–and possibly imprisoning–him in retaliation for the warrantless wiretap story (again, not the MERLIN story Sterling allegedly served as a source for).

I believe that the investigation that led to this prosecution started because of my reporting on the National Security Agency’s warrantless wiretapping program. The Bush White House was furious over that story. I believe that this investigation started as part of an effort by the Bush Administration to punish me and silence me, following the publication of the NSA wiretapping story.

So to sum up, Risen asserts his phone records were collected around 2006 in retaliation for the warrantless wiretap story. And he says he first learned that definitively when he learned warrantless wiretap grand jury witnesses had been shown his phone records. He says this Sterling investigation is just retaliation for that the wiretap story.

Recall that I made a wildarsed guess back in February that James Risen was the reporter whose phone contacts had been picked up using a community of interest grand jury subpoena (a subpoena that picks up all a person’s phone contacts, as well as all the contacts of his contacts). As DOJ’s Inspector General reported, an FBI case agent had worked with onsite telecom analysts to make the first subpoena in a leak case “as encompassing as possible.” There are contradictory stories about whether the case agent would have known that such a subpoena would have picked up a known reporter’s contacts. But when the prosecutor learned that such a subpoena would include the reporter’s contacts, the FBI sealed the reporter’s records in the case agent’s case files. But it appears DOJ did nothing about the records on the telecom side. Plus, a great deal of the discussion on what they did with the records in the FBI database is redacted. In the last days before Obama came into office, DOJ got an OLC opinion and interpreted it very liberally to claim they did not have to inform the reporter that his or her records had been collected. So we–and more importantly, the reporter–still don’t know whose records were collected improperly.

My suggestion Risen might be the journalist in question was a wildarsed guess. But here are two of the reasons I thought it was possible that Risen was the journalist in question.

  • The subpoena would have had to have been issued between early 2002, when DOJ first contracted to have the telecom involved onsite, and January 2008, when the telecoms moved out of CAU. If it were indeed a community of interest subpoena, then it would have had to have been issued before early 2007, when the FBI discontinued the program. While we don’t know whether the Sterling investigation began after Risen first tried to report the story in April 2003 or after he published his book in January 2006, both would fall in the time frame during which CAU was active.
  • The investigative team was clearly focused on one target, which would be the case in the Sterling investigation but not–for example–in the warrantless wiretap investigation. In addition, the investigative team knew of at least one reporter who had had contact with the target; given both a 2000 article Risen had written about Sterling and the unsuccessful attempt to publish [the MERLIN story] in 2003 would have alerted the CIA that Risen was in contact with Sterling.

I’ll add one more timing detail. If Risen were the reporter whose records had been collected, then the OLC opinion would have come after the time in 2008 when Risen’s lawyers asked the government whether it had complied with guidelines about reporters’ phone contacts–a question the government has never answered.

Now, none of this means Risen was the reporter in question. By the same token, this use of a community of interest subpoena was only discovered because the prosecutor discovered the implications of its use–as an exigent letter–in another case he was working; there may well be other instances where agents got community of interest subpoenas in leak cases knowing they’d pick up reporters’ contacts that, for a variety of reasons, never got reported.

Furthermore, Risen was in a rather unique position in 2006: his reporting was the target of two leak investigations. This one, in which the government had a good idea of at least one of his sources. And the warrantless wiretap one, in which the government presumably had much less of an idea of his sources. A community of interest subpoena on Jeff Sterling–which would pull up Risen’s calls with Sterling but also his calls with warrantless wiretap sources–would serve both investigations. And the unredacted IG language seems to address sealing his records only in the Sterling case.

With that in mind, look at what the government claimed about Risen’s phone records in this case.

In addition, as a point of clarification, the government has not subpoenaed the telephone records of any reporter in this particular investigation.

Note two parts of this denial: first, the government says it hasn’t subpoenaed the phone records of any reporter. Presumably they mean no reporter has been the target of a subpoena. But with a community of interest subpoena, of course, the government would get Risen’s call data without subpoenaing him directly.

Furthermore, the government makes this claim only about the Sterling investigation. It says nothing about any other investigation of leaks to Risen.

Risen may or may not have been this reporter whose records were accessed via a community of interest subpoena. But his discussion of how the two investigations–the wiretap investigation and the MERLIN investigation–relate, as well as the detail that witnesses in the wiretap grand jury were the ones questioned about his call records, suggest one possible explanation: that using a community of interest subpoena in the Sterling investigation served as an investigative boost for the wiretap investigation.

Netroots Nation: Marcy Wheeler Introduces Guest of Honor Russell Feingold

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As most of you know by now, Netroots Nation 2011 is in full swing in the beautiful hamburg of Minneapolis Minnesota. Earlier today, our own Jane Hamsher appeared front and center with Dan Choi on a DADT panel. Tonight FDL takes center stage again, in a big way, with our own Marcy Wheeler having the distinct pleasure of introducing the guest of honor for the main festivities for the evening, Senator Russell Feingold.

Russ Feingold is a hero, and for good reason, to progressives. Russ was one, if not the only one, of the Democratic Senate, make that Senate as a whole, who really stood up for civil liberties in the face of the bipartisan onslaught that has occurred over the last decade, both under George Bush and Barack Obama.

So, please join me, Firedoglake, Netroots Nation, and the progressive enterprise as Marcy Wheeler welcomes one of us: Senator Russell Feingold. The video is a live stream of the event, I am not sure when Marcy and Russ will be up.

Robert Mueller: Civil Liberties Don’t Need a “Fresh” Review

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This exchange last Thursday between Senator Al Franken and FBI Director Robert Mueller was frustrating enough–Senator Franken’s questions were the only ones on civil liberties Mueller faced, and the Director seemed pretty miffed to be questioned on the subject in the first place.

But I’m even more troubled by the exchange now that we’ve learned about the FBI’s new investigative guidelines that allow, among other things, database searches without any record and new powers to coerce informants.

After all, Mueller’s response to Franken’s concern about NSLs boasted that they had implemented a compliance system for NSLs and “other areas” where FBI might “fall into the same habits.” (What do you suppose those other areas are? Is he addressing FISC concerns?)

But perhaps as important if not more important, we set up a compliance program to address not just [National] Security Letters, but other areas such as National Security Letters where we could fall into the same, the same pattern, or habits. And so the National Security Letters I believe we addressed appropriately at the time, and it was used as a catalyst to set up a compliance program that addresses a concern in other areas comparable to what we had found with regard to National Security Letters.

Getting rid of the records on database searches would seem to eliminate any compliance system. And Mueller knew he was planning to do so (as did, I presume, Franken) when he gave this answer.

And in response to Franken’s question about infiltration of mosques and peace groups, Mueller assured Franken that FBI complied with its own guidelines.

I’m not certain it needs a fresh, a fresh, uh, look because I’m very concerned whenever those allegations arise. I will tell you that I believe that in terms of surveillances of religious institutions we have done it appropriately and with appropriate predication under the guidelines in the applicable statutes, even though there are allegations out there to the contrary. I also believe that when we have undertaken investigations of individuals expressing their First Amendment rights, we have done so according to our internal guidelines and the applicable statutes. And so, whenever these allegations come forward, I take them exceptionally seriously, make sure our inspection division or others look into it to determine whether or not we need to change anything. And I will tell you that addressing terrorism, and the responsibility to protect against attacks, brings us to the point where we are balancing day in and day out civil liberties and the necessity for disrupting a plot that could kill Americans and it’s something that we keep in mind day in and day out.

But of course, FBI is about to change those guidelines, making it easier for the Agents to attend political meetings undercover and track innocent people. And it doesn’t much matter if FBI complies with its own guidelines if those guidelines support abusive investigations. Mueller is basically insisting that he doesn’t need to reconsider FBI’s actions because FBI complies with its own guidelines and therefore the underlying guidelines themselves don’t need any more scrutiny.

And that canard about balancing civil liberties with the necessity of disrupting a plot (there’s zero evidence of course, that the FBI’s surveillance of peace groups has any tie to a plot, save against political speech)? Not only is this not a zero sum game, but the FBI doesn’t take similar civil liberties-infringing actions to disrupt right wing plots.

When he was gently, respectfully challenged to defend his civil liberties record, Mueller instead resorted to that same old terror fear-mongering. Given the new permissive guidelines, such an attitude is even more troubling.

IMF Blames State Actor for Hack

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Over the weekend, I expressed some curiosity over who hacked the IMF. They at least say it was a state actor.

Security experts said the source seemed to be a “nation state” aiming to gain a “digital insider presence” on the network of the IMF, the inter-governmental group that oversees the global financial system and brings together 187 member countries.

Tom Kellermann, a cybersecurity expert who has worked for the IMF and was in charge of cyberintelligence in the World Bank’s treasury team, said the intrusion could have yielded a treasure trove of non-public economic data used by the IMF to promote exchange rate stability, support balanced international trade, and provide resources to remedy members’ balance-of-payments crises. “It was a targeted attack,” said Kellermann, who serves on the International Cyber Security Protection Alliance.

[snip]

An internal memo issued on 8 June from the IMF’s chief information officer, Jonathan Palmer, told staff that suspicious file transfers had been detected and that an investigation had shown a desktop computer “had been compromised and used to access some Fund systems”. Significantly, he said that he had “no reason to believe that any personal information was sought for fraud purposes”.

The article mentions alleged Chinese hacks in three other places, suggesting they may be trying to cast blame.

But now this has gotten me thinking. If you were to talk about a country establishing a “digital insider presence” on computer networks looking to collect sensitive financial data, you could be describing this alleged hacker or … the United States’ wiretappers. And that’s even before we threaten to wiretap the SWIFT database so we can take what SWIFT won’t just give us.

I’m not suggesting, mind you, that we’re the ones who hacked IMF. Presumably we can just go and get what we want. But given that we are taking financial information on foreign powers that flows across the telecommunications backbones that transit our country, what’s to distinguish our spying from other countries’ hacking?

Did Thomas Drake Get iJustice?

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There’s an interesting discussion at the end of Josh Gerstein’s article on the Drake plea agreement. He points out that after Judge Bennett ruled that the government needed more descriptive substitutions for some of its exhibits, DOJ did not appeal the decision.

Experts said it was unlikely that Bennett’s rulings accounted entirely for the government’s sudden willingness to accept a sharply reduced charge. In a court filing Friday, prosecutors said “the government respectfully disagrees with the Court’s rulings” regarding what information Drake was entitled to use in his defense.

“In light of the Court’s ruling, which would mean that highly classified information would appear, without substitution, in exhibits made publicly available, the NSA has concluded that such disclosure would harm national security,” prosecutors wrote.

In cases involving classified evidence, the government has the right to pursue a pre-trial appeal challenging a judge’s rulings about what evidence the defense can present and any “substitutions” used to camouflage secret information.

Despite its disagreement with Bennett, who was appointed to the bench by Bush, the Justice Department did not challenge the judge’s rulings and instead commenced jury selection for the trial.

He also describes Jesselyn Radack, who in her role at Government Accountability Project, had supported Drake in his whistleblower stance, saying,

Radack told reporters that when [prosecutor William] Welch initiated plea talks a week ago he said he was doing so at [DOJ Criminal Division head Lanny] Breuer’s urging. She attributed the government’s flexible stance in part to sympathetic media coverage Drake received in recent weeks from The New Yorker and “60 Minutes,” among others.

Now, I have no idea whether Radack was close enough to the DOJ side of things to be able to judge their motivation. But I am struck that Lanny Breuer instructed Welch to seek a plea deal. And if Radack’s timing is correct, then DOJ started seeking a plea deal on the same day that Bennett ruled on the CIPA substitutions, but before DOJ actually withdrew its exhibits.

Radack attributes DOJ’s changed stance to reporters’ coverage of Drake’s case (ironically, in fact, to New Yorker and 60 Minutes pieces that almost certainly contained far more classified information in them than Drake was alleged to have kept).

But POGO’s Danielle Brian recalls that she raised Drake’s treatment with President Obama back in March.

I knew my topic was likely to be sensitive. I began by thanking the President for his strong support of whistleblower protections, and noted that it was not for lack of effort on the part of the White House that the legislation didn’t pass at the end of the last Congress.

I noted, however, that the current aggressive prosecution of national security whistleblowers is undermining this legacy. That we need to create safe channels for disclosure of wrongdoing in national security agencies. That we need to work harder to shrink the amount of over-classified materials that unnecessarily prompt leak prosecutions.The President shifted in his seat and leaned forward. He said he wanted to engage on this topic because this may be where we have some differences. He said he doesn’t want to protect the people who leak to the media war plans that could impact the troops. He differentiated these leaks from those whistleblowers exposing a contractor getting paid for work they are not performing. I was careful not to interrupt the President, but waited until he was done. I pointed out that few, if any, in our community would disagree with his distinction—but that in reality the current prosecutions are not of those high-level officials who regularly leak to the press to advance their policy agendas. Instead, the Department of Justice (DOJ) is prosecuting exactly the kind of whistleblower he described, for example one from the National Security Agency.

The President then did something that I think was remarkable. He said this is an incredibly difficult area and he wants to work through how to do a better job in handling it.

And Brian also mentioned something I thought of, too: Thomas Drake’s chance encounter with Eric Holder at the Apple store where he works.

Former National Security Agency (NSA) official Thomas Drake, who is being prosecuted under the Espionage Act for allegedly “retaining” allegedly “classified” information (deemed so AFTER the evidence was seized from his house and subject to a Forced Classification Review), was busy at work at the Apple Store.  Attorney General Eric Holder was at the iPhone table.

Drake said,

Attorney General Holder [Holder looks up]–I’m Thomas Drake, the former National Security Agency official who’s been in the news.

Holder looked directly at him. Drake then asked,

Do you know why they have come after me?

Holder answered,

Yes, I do.

Drake asked,

But do you know the rest of the story?

Holder looked away, and then just left the store with his small entourage, including his security detail.

That encounter appears to have happened in late May.

Mind you, it shouldn’t take personal encounters like this for the Administration to realize it was going to look really stupid trying to convict a guy for keeping two unclassified documents in his email archive. But in the same way that it took PJ Crowley asking the President about Bradley Manning, did it take Thomas Drake asking Eric Holder about his own case to make that case to the Administration?