Plea Bargain a Concession that DOJ Indicted Thomas Drake for Unclassified Information

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There’s something that’s missing from the coverage of the Thomas Drake plea bargain. Yes, this is a huge victory for Drake. A huge victory for whistleblowers. Yes, it proves that William Welch is an even bigger hack than the failed Ted Stevens case showed him to be.

But what about the two other charged documents?

Remember, what reportedly sunk DOJ’s case was a ruling from Judge Bennett that the government had to provide descriptions of one of the technologies they used to collect telecommunications; the government withdrew–in part or in whole–three of the charged documents in response. But the government originally charged Drake with illegally keeping five documents. The other two were described in the indictment as,

  • A classified email entited “What a Success”
  • A two-page classified document deemed “the Regular Meetings” document

If the charges built on these two documents were halfway decent, Drake wouldn’t have gotten his misdemeanor plea bargain.

But of course they weren’t even halfway decent.

The “What a Success” document was declassified by the government in July 2010, just months after the government indicted Drake.

The “Regular Meetings” document not only was never formally classified–though the government says it should have been and Drake should have known that–but the government tried to withhold from Drake evidence that the document was published on NSANet as an unclassified document.

It is disturbing that the government did not produce the March 22, 2010 memorandum [showing that NSA’s lead investigator had found the document to be posted on NSANet as an unclassified document] to the defense until February 4, 2011, ten months after the Indictment was issued. The information in the memorandum is undisputedly Brady material, and the government should have disclosed it many months ago. None of the documents found in Mr. Drake’s home was marked classified. For some of these documents, the government claims that Mr. Drake had received them originally with classification markings. The significance of the March 2010 memorandum is the government’s concession that the “Regular Meetings” document was published as “unclassified” and had never been deemed “classified” until after it was recovered from Mr. Drake’s home.

Under the Due Process Clause of the Fifth Amendment, the prosecution is required to disclose exculpatory evidence to a defendant in a criminal case. See Brady v. Maryland, 373 U.S. 83 (1963). Here, there can be no dispute that the information in the memorandum is exculpatory. In the Indictment, the government charges that the “Regular Meetings” document is “classified.” See Indictment ¶ 17. The fact that the document was marked “unclassified” and was posted on the NSA intranet as “unclassified” directly contradicts material allegations in the Indictment. See id.; see also id. ¶ ¶ 2, 3, 3 [sic] (“Classified information had to contain markings identifying the level at which it was classified.”); ¶ 8 (alleging Mr. Drake retained and disclosed “classified” documents). In addition, the government clearly seems to be of the opinion that, if a document is classified, this fact supports a successful prosecution under 18 U.S.C. § 793(e) (an opinion with which the defense disagrees). It necessarily follows, therefore, that a memorandum indicating that a document was marked “unclassified” and posted on NSA’s intranet as “unclassified” is potentially exculpatory to a defendant who is alleged to have violated § 793(e).

For this reason, the prosecution was under a constitutional obligation to disclose the memorandum to defense counsel, yet chose not to do so. See Brady, 373 U.S. at 87 (“We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”). What makes the government’s actions even more disturbing is the fact that defense counsel had to specifically ask the government for any evidence that the “Regular Meetings” document was posted on NSANet. This request came months after our initial request for all Brady material and the prosecution’s representation that it had produced all Brady material. It was only after our specific inquiry about a central document in the case that the government produced the March 22, 2010 memorandum. The government’s failure to turn over this exculpatory evidence at the beginning of the case is indefensible. And its decision to charge Mr. Drake with retaining a “classified” document clearly marked “unclassified” is, at a minimum, wrong. [my emphasis]

In other words, the government learned a month before they indicted Drake that this document wasn’t actually classified. But they indicted him for it anyway, and simply didn’t provide him evidence showing that fact until 10 months after they indicted him.

So in addition to dropping charges related to the evidence the government withdrew, the government also vastly restructured charges pertaining to these unclassified documents. Mind you, these documents are what the plea information describes (Drake would have collected the other documents pertaining to the IG complaint before 2006).

From in or about February 2006 through approximately March 2007, the defendant intentionally accessed NSANet, obtained official NSA information, and provided said information orally and in writing to another person not permitted or authorized to receive the same. In doing so, the defendant knew that he exceeded his authorized use of NSANet each time he accessed NSANet and obtained said information for that purpose because such access was not for the official use or business of NSA.

But what they had originally charged as “classified” information became “official NSA information” in the ultimate plea agreement.

Mark Benjamin is right to focus on William Welch’s role in the collapse of this case. But we also ought to be asking why the government indicted a person for leaking “classified” information when it knew that it was not classified.

Thomas Drake Signs Plea Agreement; Government Attempt to Expand Espionage Act Fails

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Thomas Drake just signed a plea agreement, admitting to Exceeding Authorized Use of a Computer. (h/t Steven Aftergood) The plea says:

The defendant intentionally accessed a computer and exceeded his authorized access; by doing so, the defendant obtained information from any department of agency of the United States.

[snip]

From in or about February 2006 through approximately March 2007, the defendant intentionally accessed NSANet, obtained official NSA information, and provided said information orally and in writing to another person not permitted or authorized to receive the same. In doing so, the defendant knew that he exceeded his authorized use of NSANet each time he accessed NSANet and obtained said information for that purpose because such access was not for the official use or business of NSA.

Now the plea doesn’t say anything about what sentence they’ve agreed to. The base level is 6, and the calculation works out to 6, which means he’s eligible for no jail time (the maximum punishment is a year). The plea indicates “the Criminal Division will not oppose a non-custodial sentence.” So hopefully the judge will just be done with this and Thomas Drake can get on with his life.

Meanwhile, the people who illegally wiretapped us (according to Drake, in highly inefficient fashion)? They remain free.

While I hope Drake avoids any jail time here, equally important is that the government has once again failed to broaden the Espionage Act to cover garden variety leaks.

“Collections Sites” and the Thomas Drake Case

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I wanted to look at the the three documents that the government is withdrawing in whole or in part in the Thomas Drake case. Ellen Nakashima implies that three of the documents are three of the five charged documents.

According to people following the case, the government may have to drop two Espionage Act counts that relate to information that Drake submitted to the Defense Department inspector general between 2002 and 2004 to buttress colleagues’ complaints about waste, fraud and abuse of a bungled NSA data-sifting program, Trailblazer. He and his former NSA colleagues thought the complaints were confidential.

The evidence for those two counts is contained in Exhibits 42 and 43, according to the sources. Prosecutor William M. Welch II, in a letter Sunday to Bennett, a U.S. District Court judge in Baltimore, said those exhibits will be withdrawn. The letter was first reported by Politico.

Another exhibit, numbered 41, also consisting of information Drake submitted to the inspector general, is intended to support a third Espionage Act count that may also be dropped, the sources said. That exhibit will be redacted, the prosecution has said.

In filings, Drake’s lawyers make it clear that Counts 1 and 2 relate to emails Drake kept; Counts 3, 4, and 5 relate to documents he had in boxes in his basement in connection with the DOD Inspector General complaint.

To negate evidence that Mr. Drake “willfully retained” the documents in Counts 3-5, and to show that any misstatements resulted from confusion, mistake, or faulty memory, the defense intends to present evidence of the sheer volume of documents that Mr. Drake possessed and shared with the DOD-IG. The volume of the documents will provide a contrast with the slight number of DOD-IG related documents recovered from the basement and, thus, will evidence the likelihood of negligence, inadvertence, mistake, or carelessness.

In other words, the documents in Counts 3, 4, and 5 appear to be the documents the government has chosen to withdraw rather than provide adequate substitutions for. Those documents are described as:

  • A four-page document “bearing the features of an email” titled “Volume is our Friend”
  • A three-page document “bearing the features of an email” titled “Trial and Testing”
  • A five-page document “bearing the features of an email” titled “the Collections Sites”

Note, while there’s no way to guarantee that the government has maintained the same chronology in numbering Counts as it has Exhibits, it is withdrawing Exhibits 42 and 43, while it is just redacting all mention to the technology in question in Exhibit 41, suggesting that if the order was maintained, it’d be the “Trial and Testing” and “Collections Sites” documents the government had withdrawn completely.

But in any case, it appears that the emails in question deal with the volume of telecommunications data collected, the trial and testing of the system (remember that the key IG complaint was that Michael Hayden had selected Trailblazer over ThinThread in spite of the fact that the latter did better in testing), and places where telecommunications data were collected.

With that in mind, take a look at the following passages of the key Siobhan Gorman story in question:

ThinThread would have:

* Used more sophisticated methods of sorting through massive phone and e-mail data to identify suspect communications.

[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.

[snip]

With the explosion of digital communications, especially phone calls over the Internet and the use of devices such as BlackBerries, the NSA was struggling to sort key nuggets of information from the huge volume of data it took in.

By 1999, as some NSA officials grew increasingly concerned about millennium-related security, ThinThread seemed in position to become an important tool with which the NSA could prevent terrorist attacks. But it was never launched. Neither was it put into effect after the attacks in 2001. Despite its success in tests, ThinThread’s information-sorting system was viewed by some in the agency as a competitor to Trailblazer, a $1.2 billion program that was being developed with similar goals. The NSA was committed to Trailblazer, which later ran into trouble and has been essentially abandoned.

Both programs aimed to better sort through the sea of data to find key tips to the next terrorist attack, but Trailblazer had more political support internally because it was initiated by Hayden when he first arrived at the NSA, sources said.

NSA managers did not want to adopt the data-sifting component of ThinThread out of fear that the Trailblazer program would be outperformed and “humiliated,” an intelligence official said.

Without ThinThread’s data-sifting assets, the warrantless surveillance program was left with a sub-par tool for sniffing out information, and that has diminished the quality of its analysis, according to intelligence officials.

Sources say the the NSA’s existing system for data-sorting has produced a database clogged with corrupted and useless information.

The mass collection of relatively unsorted data, combined with system flaws that sources say erroneously flag people as suspect, has produced numerous false leads, draining analyst resources, according to two intelligence officials. FBI agents have complained in published reports in The New York Times that NSA leads have resulted in numerous dead ends. [my emphasis]

In other words, one of the key differences between ThinThread and Trailblazer was in the data-sorting technique used.

Jane Mayer’s piece on Drake reveals some details about why ThinThread was better at sorting.

As [ThinThread’s inventor Bill] Binney imagined it, ThinThread would correlate data from financial transactions, travel records, Web searches, G.P.S. equipment, and any other “attributes” that an analyst might find useful in pinpointing “the bad guys.” By 2000, Binney, using fibre optics, had set up a computer network that could chart relationships among people in real time. It also turned the N.S.A.’s data-collection paradigm upside down. Instead of vacuuming up information around the world and then sending it all back to headquarters for analysis, ThinThread processed information as it was collected—discarding useless information on the spot and avoiding the overload problem that plagued centralized systems. Binney says, “The beauty of it is that it was open-ended, so it could keep expanding.”

[snip]

Working with N.S.A. counterterrorism experts, he had planned to set up his system at sites where foreign terrorism was prevalent, including Afghanistan and Pakistan. “Those bits of conversations they found too late?” Binney said. “That would have never happened. I had it managed in a way that would send out automatic alerts. It would have been, Bang!”

[snip]

An agency spokesman declined to comment on how the agency “performs its mission,” but said that its activities are constitutional and subject to “comprehensive and rigorous” oversight. But Susan Landau, a former engineer at Sun Microsystems, and the author of a new book, “Surveillance or Security?,” notes that, in 2003, the government placed equipment capable of copying electronic communications at locations across America. These installations were made, she says, at “switching offices” that not only connect foreign and domestic communications but also handle purely domestic traffic. As a result, she surmises, the U.S. now has the capability to monitor domestic traffic on a huge scale. “Why was it done this way?” she asks. “One can come up with all sorts of nefarious reasons, but one doesn’t want to think that way about our government.”Binney, for his part, believes that the agency now stores copies of all e-mails transmitted in America, in case the government wants to retrieve the details later. In the past few years, the N.S.A. has built enormous electronic-storage facilities in Texas and Utah. Binney says that an N.S.A. e-mail database can be searched with “dictionary selection,” in the manner of Google. After 9/11, he says, “General Hayden reassured everyone that the N.S.A. didn’t put out dragnets, and that was true. It had no need—it was getting every fish in the sea.” [my emphasis]

In other words, aside from the built-in privacy protections, ThinThread performed better than Trailblazer because it sorted data as it was collected at remote sites chosen because of some tie to terrorism. Trailblazer, on the other hand, actually copied all the data passing through switching offices, some of which carried entirely domestic traffic. Only after collecting all this data did Trailblazer start sorting through to find the terrorists.

It seems possible that these differences are made clear in the documents the government just withdrew (particularly the “Collections Sites” one).

An important part of the complaint Thomas Drake and others were making is that the government chose to collect and store everyone’s telecommunications data rather than collecting data in more logical places and eliminating all the unnecessary data. And they did so, the whistleblowers suggest, so the government could go back in and pull up your communications history at some time in the future.

And that revelation may well be what the government is trying to prosecute Drake for, while hiding the underlying truth.

Thomas Drake to Government: “Bring It”

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Apparently, the government is scrambling in the Thomas Drake case.

According to Ellen Nakashima, they offered him two plea bargains yesterday, both involving no jail time. He rejected both.

Drake has repeatedly told friends that he will never “plea bargain with the truth.”

Drake turned down a deal to plead guilty to unauthorized retention of classified documents. It was a deal similar to the one accepted in 2005 plea by former national security adviser Samuel R. “Sandy” Berger after he removed and shredded classified material relating to the Clinton administration’s record on terrorism from the National Archives.

“Why should you plead to something you didn’t do?” said Bill Binney, a friend and former colleague who, with Drake, tried to raise concerns about what they saw NSA corruption and constitutional violations. “That’s the whole point. People of character don’t do that.”

Let me just take this moment to remind everyone what a train wreck William Welch–the prosecutor who screwed up the Ted Stevens prosecution, among others–has been for DOJ. On the eve of prosecution, the evidence he has to prove someone illegally kept classified information are three documents thrown in the trash can, two other documents that are currently unclassified, and a bunch of people in government speaking openly about the information that appeared in the three trashed documents.

I guess it wasn’t such a good idea to put such a relentless, but incompetent, prosecutor in charge of your leak cases, huh Holder?

Thomas Drake’s Public Domain Motion

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There’s something else that has been going on as the case against Thomas Drake has gotten narrowed because the government withdrew some of its exhibits. Drake’s lawyers have been arguing that some of this information–and, I believe, some of the information that subsequently got withdrawn–has already been discussed by government officials.

I noted this filing the other day. It basically challenged the government’s claim that this information was “closely held” by pointing out that NSA itself, the Director of National Intelligence, Congress, DOJ, and “the White House” had already introduced the information the government accuses Drake of leaking into the public domain.

In his memorandum, Mr. Drake submitted evidence that information found in the documents in his home and considered classified by the National Security Agency is not “closely held.” Indeed, the evidence shows that the allegedly classified information has been officially released and discussed by numerous agencies and officials of the United States government, including NSA, the Director of National Intelligence, the United States Congress, the Department of Justice, and the White House. This “public domain” evidence was provided to the Court in response to the Court’s request during the Section 6(c) hearing. During the hearing, counsel represented that the defense will introduce evidence that some of the allegedly classified information found in the documents charged in the Indictment can be found in the public domain.

But there’s another key detail in this passage: it describes this information as “information found in the documents in his home and considered classified by the National Security Agency.”

While this is quite vague, I think it may suggest that the information in question consisted of the three documents from the box in Drake’s basement which he retained as part of his Inspector General complaint. I say that because the NSA no longer considers the emails he allegedly kept classified, and because the documents physically in Drake’s home were the ones in the box in his basement.

And that’s potentially significant because those appear to be the documents that Ellen Nakashima appears to confirm are the same ones the government has withdrawn in full or in part.

So if I’m right, it means the following happened:

June 2: Drake’s team warns it will introduce that entities including the DNI and the White House introduced the charged information into the public domain already

June 2: On the same day Drake’s team says it will show the information is already in the public domain, it also submits a sealed document with 8 exhibits

June 3: Judge Bennett rules that the government has to provide more explicit descriptions of the technology in question to allow Drake to defend himself

June 5: The Government announced it was withdrawing a series of documents, including (if I understand Nakashima correctly) two of the charged documents

June 7: Judge Bennett makes an additional ruling on admissibility of classified information

June 7: Drake’s team submits another sealed document

June 8: Government files response to June 2 sealed document with 8 exhibits

June 8: Drake’s team modifies the June 7 sealed document

Now, obviously, we can’t read anything into all this sealed discussion. Some of it may be a response to the government’s withdrawal of several documents. Some of it may relate to entirely unrelated pre-trial issues (mixed in here is also a sealed Drake subpoena).

But I wonder whether Drake didn’t submit exhibits proving his point–that the White House, DNI, and others had already discussed some of this information on June 2. And I’m wondering whether one of the government’s concerns, here, is that Drake will show the extent to which this discussion already happened.

Recall that the reason the AIPAC trial got dismissed–which in the way it used the Espionage Act resembles this one–was because the defendants were going to subpoena people like Condi Rice to show they were already leaking the charged information. The only hint Drake might have subpoenaed one of these people is the sealed subpoena. But by focusing attention on the public statements of top officials (I suspect these would have occurred in the context of the FISA Amendments Act debate), Drake would not only do serious damage to the government’s case, but also focus attention on precisely what the government claims is so secret.

Perhaps just as importantly, it would demonstrate the degree to which the government selectively prosecutes only some leakers.

In any case, if any of this is accurate (and it’s very speculative at this point), it may suggest that one reason the government wanted to withdraw these documents was because it would neutralize Drake’s public domain arguments.

The Government’s Thomas Drake Case Crumbles

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As I noted the other day (and Josh Gerstein first reported), the government has chosen to withdraw two exhibits and redact discussion of a certain technology from another in the Thomas Drake case.

Ellen Nakashima appears to reveal that those three documents were three of the five charged documents.

According to people following the case, the government may have to drop two Espionage Act counts that relate to information that Drake submitted to the Defense Department inspector general between 2002 and 2004 to buttress colleagues’ complaints about waste, fraud and abuse of a bungled NSA data-sifting program, Trailblazer. He and his former NSA colleagues thought the complaints were confidential.

The evidence for those two counts is contained in Exhibits 42 and 43, according to the sources. Prosecutor William M. Welch II, in a letter Sunday to Bennett, a U.S. District Court judge in Baltimore, said those exhibits will be withdrawn. The letter was first reported by Politico.

Another exhibit, numbered 41, also consisting of information Drake submitted to the inspector general, is intended to support a third Espionage Act count that may also be dropped, the sources said. That exhibit will be redacted, the prosecution has said.

So two, maybe three charges out the door there. And, as Nakashima reminds, the other two charged documents are the ones NSA declassified not long after they were found on Drake’s computer.

Apparently, the government plans to get up before a jury with three documents in a trash can, two others that appear to be a classic case of overclassification. Another charge alleges that Drake lied about passing classified information to Siobhan Gorman; the government will have to prove that with either now-declassified information or information they can’t enter into evidence. Then there’s the charge that alleges that Drake lied about bringing classified documents home; if I understand Nakashima’s story right, then the government is in the process of throwing out the three purportedly classified documents they found at his home.

There are a few more charges: for example, after complaining to the jury that Drake left classified documents lying around at his home, they’re going to ask the jury to convict him for destroying classified information so it wouldn’t just be lying around his home.

Mind you, they might dink and dunk a charge here or there. But in the process they’re going to look like loony-bins, sniffing around in a guy’s basement for not-really classified information.

Using Domestic Surveillance to Get Rapists to Spy for America

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The reauthorization of the PATRIOT Act focused a lot of attention on the fact that the Administration is interpreting the phrase “relevant to an authorized [intelligence] investigation” in Section 215 of the PATRIOT Act very broadly. As Ron Wyden and Mark Udall made clear, the government claims that phrase gives it the authority to collect business records on completely innocent people who have no claimed tie to terrorism.

There’s something that’s been haunting me since the PATRIOT reauthorization about how the government has defined intelligence investigations in the past. It has to do with Ted Olson’s claim–during the In Re Sealed Case appeal in 2002–that the government ought to be able to use FISA to investigate potential crimes so as to use the threat of prosecuting those crimes to recruit spies (and, I’d suggest, informants). When Olson made that claim, even Laurence Silberman (!) was skeptical. Silberman tried to think of a crime that could have no imaginable application in an intelligence investigation, and ultimately came up with rape. But Olson argued the threat of a rape prosecution might help the Feds convince a rapist to “help us.”

OLSON: And it seems to me, if anything, it illustrates the position that we’re taking about here. That, Judge Silberman, makes it clear that to the extent a FISA-approved surveillance uncovers information that’s totally unrelated — let’s say, that a person who is under surveillance has also engaged in some illegal conduct, cheating —

JUDGE LEAVY: Income tax.

SOLICITOR GENERAL OLSON: Income tax. What we keep going back to is practically all of this information might in some ways relate to the planning of a terrorist act or facilitation of it.

JUDGE SILBERMAN: Try rape. That’s unlikely to have a foreign intelligence component.

SOLICITOR GENERAL OLSON: It’s unlikely, but you could go to that individual and say we’ve got this information and we’re prosecuting and you might be able to help us. I don’t want to foreclose that.

JUDGE SILBERMAN: It’s a stretch.

SOLICITOR GENERAL OLSON: It is a stretch but it’s not impossible either. [my emphasis]

Olson went on to claim that only personal revenge in the guise of an intelligence investigation should be foreclosed as an improper use of FISA.

JUDGE SILBERMAN: In your brief you suggested only that the face of the application indicated something was wrong. I don’t quite understand what would be wrong though. The face of the application, suppose the face of the application indicated a desire to use foreign surveillance to determine strictly a domestic crime, that would be — but then you wouldn’t have an agent, you wouldn’t have an agency. You must have some substantive requirement here if significant purpose is given its literal meaning, you must have some logic to the interpretation of that section which falls outside of the interpretation of an agent of a foreign power.

SOLICITOR GENERAL OLSON: And I suppose if the application itself revealed that there was a purpose to take personal advantage of someone who might be the subject of an investigation, to blackmail that person, or if that person had a domestic relationship and that person was seeing another person’s spouse or something like that, if that would be the test on the face of things. In other words, I’m suggesting that the standard is relatively high for the very reason that it’s difficult for the judiciary to evaluate and secondguess what a high level executive branch person attempting to fight terrorism is attempting to do.

This is not just Ted Olson speaking extemporaneously. The government’s appeal actually makes its plan to use FISA-collected information to recruit spies (and informants), in the name of an intelligence investigation, explicit:

Although “foreign intelligence information” must be relevant or necessary to “protect” against the specified threats, the statutory definition does not limit how the government may use the information to achieve that protection. In other words, the definition does not discriminate between protection through diplomatic, economic, military, or law enforcement efforts, other than to require that those efforts be “lawful.” 50 U.S.C. 1806(a), 1825(a). Thus, for example, where information is relevant or necessary to recruit a foreign spy or terrorist as a double agent, that information is “foreign intelligence information” if the recruitment effort will “protect against” espionage or terrorism.

[snip]

Whether the government intends to prosecute a foreign spy or recruit him as a double agent (or use the threat of the former to accomplish the latter), the investigation will often be long range, involve the interrelation of various sources and types of information, and present unusual difficulties because of the special training and support available to foreign enemies of this country. [my emphasis]

Ultimately, the FISA Court of Review rejected this broad claim (though without discounting the possibility of using FISA to get dirt to use to recruit spies and informants explicitly).

The government claims that even prosecutions of non-foreign intelligence crimes are consistent with a purpose of gaining foreign intelligence information so long as the government’s objective is to stop espionage or terrorism by putting an agent of a foreign power in prison. That interpretation transgresses the original FISA. It will be recalled that Congress intended section 1804(a)(7)(B) to prevent the government from targeting a foreign agent when its “true purpose” was to gain non-foreign intelligence information–such as evidence of ordinary crimes or scandals. See supra at p.14. (If the government inadvertently came upon evidence of ordinary crimes, FISA provided for the transmission of that evidence to the proper authority. 50 U.S.C. 1801(h)(3).) It can be argued, however, that by providing that an application is to be granted if the government has only a “significant purpose” of gaining foreign intelligence information, the Patriot Act allows the government to have a primary objective of prosecuting an agent for a non-foreign intelligence crime. Yet we think that would be an anomalous reading of the amendment. For we see not the slightest indication that Congress meant to give that power to the Executive Branch. Accordingly, the manifestation of such a purpose, it seems to us, would continue to disqualify an application. That is not to deny that ordinary crimes might be inextricably intertwined with foreign intelligence crimes. For example, if a group of international terrorists were to engage in bank robberies in order to finance the manufacture of a bomb, evidence of the bank robbery should be treated just as evidence of the terrorist act itself. But the FISA process cannot be used as a device to investigate wholly unrelated ordinary crimes. [my emphasis]

Understand what this exchange meant in 2002: the government claimed that it could use FISA to collect information on people that they could then use to persuade those people to become spies or informants. That all happened in the context of broadened grand jury information sharing under PATRIOT Act. Indeed, the FISA application in question was submitted at almost exactly the same time as OLC wrote a still-secret opinion interpreting an “implied exception” to limits on grand jury information sharing for intelligence purposes.

[OLC] has concluded that, despite statutory restrictions upon the use of Title III wiretap information and restrictions on the use of grand jury information under Federal Rule of Criminal Procedure 6(e), the President has an inherent constitutional authority to receive all foreign intelligence information in the hands of the government necessary for him to fulfill his constitutional responsibilities and that statutes and rules should be understood to include an implied exception so as not to interfere with that authority. See Memorandum for the Deputy Attorney General from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Effect of the Patriot Act on Disclosure to the President and Other Federal Officials of Grand Jury and Title III Information Relating to National Security and Foreign Affairs 1 (July 22, 2002);

It seems possible the government was hoping to take grand jury allegations, use FISA to investigate them, and in turn use what they found to recruit spies and informants. The one limit–and it is a significant one–is that the government would first have to make a plausible argument that the potential target in question was an agent of a foreign power.

Of course, at precisely that same time–and apparently unbeknownst to Ted Olson (I have emailed Olson on this point but he did not respond)–the government was using new data mining and network analysis approaches to establish claimed ties between Americans and al Qaeda. And the bureaucracy Royce Lamberth and James Baker had implemented to prevent such claimed ties to form the basis for FISA applications–an OIPR chaperone for all FISA applications–was rejected by the FISCR in this case. So while FISA required the government show a tie between a target and a foreign power, there was little to prevent the government from using its nifty new data mining to establish that claim. And remember, NSA twice explicitly chose not to use available means to protect Americans’ privacy as it developed these data mining programs; it made sure it’d find stuff on Americans.

(Interesting trivia? Olson used the phrase “lawful” to describe the limits on what FISA allows the President to do at least 6 times in that hearing.)

Moreover, while the FISCR ruling held (sort of–but probably not strongly enough that John Yoo couldn’t find a way around it) that the government couldn’t use FISA to gather dirt to turn people into spies and informants, it never actually argued the government couldn’t use other surveillance tools, including the PATRIOT Act, to dig up dirt to use to recruit spies and informants, at least not in this FISCR ruling. The limit on using FISA for such a purpose came from court precedents like Keith, not any apparent squeamishness about using government surveillance to dig up dirt to recruit spies.

The Senate Intelligence Committee presumably had what was supposed to be a meeting on the government’s very broad interpretation of data it considers “relevant to an authorized [intelligence] investigation” today. We know that one of the concerns is that the government claims it can use Section 215 to collect information on people with no ties to terrorism. Ted Olson’s claim we could use FISA to recruit informants make me wonder how they’re using the information they collect on people with no ties to terrorism. After all, the ability to collect bank records on someone–or geolocation–might provide an interesting evidence with which to embarrass them into becoming an informant.

Is Apparent US Conspiracy with Cisco about Wiretapping?

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Canada has just discovered how much corporations own our legal system, how our legal system criminalizes whistleblowers, and our utter and total disdain for the rule of law.

At issue is the apparent conspiracy between Cisco and the US government to respond to an anti-trust lawsuit launched by Peter Alfred Adekeye, a former Cisco employee. He sued because of the way Cisco forced customers to buy a maintenance contract for things like bug fixes.

This lawsuit is about Cisco’s deliberate and continuing attempt to monopolize for itself (and its “partners” (Cisco-authorized resellers of Cisco equipment and services nationwide) with which it does not significantly compete) the service and maintenance of Cisco enterprise (Cisco networking equipment for all segments (e.g., internet service providers, government, academia, small, medium and large business, etc.) with the exception of home networking equipment) hardware, principally routers, switches and firewalls. Cisco possesses a market share of approximately 70% in the networking equipment industry.

[snip]

To protect its over $6 billion yearly stream of service and maintenance revenue, Cisco has cleverly and uniquely conditioned the provision of its software “updates” on the customer’s purchase of a hardware maintenance service agreement called “SMARTnet,”

[snip]

The effect of this leveraging of monopoly power and unlawful tie-in and/or bundling is to effectively preclude any non-Cisco affiliated Independent Service Organization (“ISO”) from competing for the business of servicing Cisco networking hardware, thus preserving for itself all but a pittance of that line of commerce which is separate and distinct from the “updates” of its software.

In response, Cisco counter-sued, accusing Adekeye of illegally accessing Cisco services. And Cisco either lied persuasively or got DOJ to conspire in the intimidation campaign, because DOJ then charged Adekeye with 97 violations that–the Canadian judge who just blew this up suggested–should have only amounted to one single violation.

The US also refused to allow Adekeye to enter the US after 2008, meaning he couldn’t testify in the litigation. Finally, in 2010, he flew to Canada to testify. At that point, the US had him arrested by the Mounties, based on false claims (among other things) that he was a shady Nigerian. He was held for four weeks, and then made to stay in Canada on restrictive bail conditions ever since as the US tried to have him extradited.

Justice [Ronald] McKinnon thought this case met the test and was flabbergasted by Adekeye’s “shocking” arrest during a judicial proceeding: “It is simply not done in a civilized jurisdiction that is bound by the rule of law.”

This was an egregious abuse of process and brought the administration of justice into disrepute, he concluded.

In his piece on this Sirota suggests that, if the US did conspire with Cisco, it probably did so in response to lobbying.

But I wonder if there’s not something more going on? Here’s how James Bamford described the government’s efforts to partner with Cisco on wiretapping in his book, The Shadow Factory.

One of the ways to covertly penetrate both the Internet and fiber-optic communications is to target their weakest point, the point where the systems interconnect–the routers.

[snip]

By discovering the weak spots and vulnerabilities of in this “postal service,” the NSA has the ability to target and intercept much of the electronic mail.

Thus, as [Deputy Director for Services Terry] Thompson further explained at the 1999 meeting, one of the NSA’s goals should be to hire away, on a short-term basis, people from key companies such as Cisco. Having hired them, the agency could use their knowledge and expertise to “reverse engineer” the systems and find ways to install back doors.

Just a gut level feel. If Adekeye’s initial suit hinted at something that played a key role in maintaining NSA’s access to all communications crossing Cisco’s routers, or if a successful suit would have made it harder to suck the worlds telecommunications off the network, that might explain the government’s seeming conspiracy with Cisco.

Alternately, maybe our government is just that fucking crazy.

Read more →

Thomas Drake: The Government Hides Its Toys

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As Josh Gerstein just reported, the government has decided to withdraw some evidence against Thomas Drake rather than come up with CIPA substitutions that would give Drake the ability to defend himself. At issue is “NSA’s targeting of a particular telecommunications technology,” which the government wants to hide. To avoid mentioning it, they are now withdrawing four documents entirely and redacting references to the document in two other documents.

In Gerstein’s article, Steven Aftergood cautions that this won’t necessarily help Drake avoid prosecution.

The prosecutors’ decision has echoes of the 2009 Justice Department decision to drop its long-running prosecution of two pro-Israel lobbyists after a series of adverse rulings from a federal judge in Virginia. However, in Drake’s case, no charges have been dropped, just a portion of the proof the government wanted to offer.

“From the government’s point of view, this ruling is not a reason to reconsider the prosecution. They’re not pulling back. They’re simply reordering their case,” said Steven Aftergood, a classified information expert with the Federation of American Scientists.

“In the fantasy of Drake suppoorters, the [judge’s] ruling could have been a pretext for withdrawing the prosecution, as happened in the [American Israel Public Affairs Committee] case but that’s not choice they’ve made. They’ve said, ‘We’ll go ahead and work around that obstacle,'” Aftergood added.

That may well be the case. But I’m curious to see how Drake’s lawyers respond to this. The government has been trying (somewhat unsuccessfully) to exclude documents discussing the relative merits of ThinThread over Trailblazer on relevancy and hearsay grounds, including the IG Report at issue in the case. Mind you, none of them apparently discussed this technology (the government is withdrawing its own exhibits, not objecting on CIPA grounds to Drake’s). And Judge Richard Bennett obviously thought a somewhat revelatory description of this technology was important to Drake’s defense.

Ultimately, after all, Drake is planning to argue that the reason he saved certain documents was to demonstrate the inefficacy (and probably privacy problems) of the government’s plans. By withdrawing these documents–which obviously must have been relevant to the five charged documents–are they hurting Drake’s ability to make this argument?

The Government Asked to Use Silent Witness Rule in Thomas Drake Case

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This document, Judge Richard Bennett’s rulings on the admissibility of a number of documents presented in CIPA hearings, is interesting for several reasons, some of which I may return to. But I wanted to highlight that the government is trying to introduce evidence under a silent witness rule, something I hadn’t seen mentioned before. [Update: Josh Gerstein covered this back in March. I stand corrected.]

In his ruling on item 14, Volume I, Exhibit 11, Bennett writes,

A ruling on the relevance and admissibility of Classified Statements 1 and 2 should be deferred until the Court rules on the government’s request to invoke the silent witness rule. The government agrees that these written statements of its expert witness will be inadmissible if the Court does not invoke the silent witness rule. The defense objects to the use of the silence [sic] witness rule and the introduction of these statements. The parties’ arguments relating to these documents are reserved.

In other words, the government has requested, but Bennett is still considering, the use of the silent witness rule for some evidence in this case.

As Steven Aftergood explained back in 2007 when the government won approval for it in the AIPAC leak case, the silent witness rule basically allows the government to present evidence to the jury that the public won’t see.

Last week, Judge Ellis approved limited use at trial of the so-called “silent witness rule,” an unconventional tactic that permits prosecutors to withhold evidence from the public and to disclose it only to the parties, the witnesses and the jury. Because this amounts to closing the trial, it runs the risk of infringing on constitutional guarantees that trials will be public.

The silent witness rule “is a novel evidence presentation technique that has received little judicial attention is the context of the use of classified information in trials,” Judge Ellis noted. “No published decision has explicitly approved or endorsed use of the rule in this context.”

This ability to do this–to limit what the public can see at the trial–is a tactic the government uses at Gitmo.

I’m just saying.

It’s impossible to tell what the government is trying to introduce. Elsewhere, references to the government’s expert witness seem always to refer to Catherine Murray, their classification expert, whose review of the charged documents are a central dispute in this trial.

That’s interesting, because in a defense filing submitted yesterday, they made it clear that Drake intends to show that information alleged to be classified in this case was introduced in the public domain, thereby proving that it has not been “closely held.”

Indeed, the evidence shows that the allegedly classified information has been officially released and discussed by numerous agencies and officials of the United States government, including NSA, the Director of National Intelligence, the United States Congress, the Department of Justice, and the White House.

The very end of that filing focuses on the government’s expert (note the reference to a singular expert; the connection between the public domain question and the substitutions at issue here is not entirely clear).

To defend himself against these charges, Mr. Drake must be allowed to cross-examine the government’s expert witness and to test her opinion that the documents in Mr. Drake’s home are classified. He must be able to elicit and present evidence that the documents he possessed did not contain national defense information, that he did not believe they contained national defense information, that he did not specifically intend to violate the law when he brought them home, and that his statements to federal agents in regard to the documents were not false.

Now these two issues–the two statements from a government expert who may or may not be Catherine Murray that the government wants to introduce into evidence without letting the country’s citizens see it, and the defense claim that the government is trying to hide Murray’s statements that relate in some way to information in the public domain–may well be entirely unrelated. As I said, Murray’s review of the documents will be at the center of the trial for many reasons.

But it is worth noting that in addition to all the other novel, expansive claims about the government’s ability to keep stuff–even unclassified stuff–secret  in this case, the government is also trying to add yet another layer of secrecy here.