Thank You Nicholas Merrill

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Today we learn the name of the guy who challenged the more abusive aspects of the National Security Letter program: Nicholas Merrill.

Now, following the partial lifting of his gag order 11 days ago as a result of an FBI settlement, Merrill can speak openly for the first time about the experience, although he cannot disclose the full scope of the data demanded.

[snip]

On a cold February day in 2004, an FBI agent pulled an envelope out of his trench coat and handed it to Merrill, who ran an Internet startup called Calyx in New York. At the time, like most Americans, he had no idea what a national security letter was.

The letter requested that Merrill provide 16 categories of “electronic communication transactional records,” including e-mail address, account number and billing information. Most of the other categories remain redacted by the FBI.

Two things, he said, “just leaped out at me.” The first was the letter’s prohibition against disclosure. The second was the absence of a judge’s signature.

Thanks to Merrill’s–and the ACLU’s–challenge of the gag order on NSLs, the authority has been slightly circumscribed (even as the Obama Administration tries to expand it).

Merrill’s ISP sounds pretty small in the grand scheme of things. So why was Merrill the guy fighting for our Constitution and not–say–Ma Bell?

Jay Rockefeller’s Surveillance Machines

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I don’t mean to be churlish. After all, Jay Rockefeller tried to conduct some kind of oversight over Bush’s illegal wiretap program. He even went so far as to write out by hand a letter to Dick Cheney telling him the wiretap program sounded like the data mining the Senate was in the process of specifically defunding. And Rockefeller was honest about his own capabilities to conduct oversight without the help of his more technical staffers.

As you know, I am neither a technician nor an attorney. Given the security restrictions associated with this activity, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate much less endorse these activities.

But is there any better demonstration that members of the Gang of Four cannot exercise oversight over such programs without staffer assistance than the way former Gang of Four member Rockefeller talks about the machines that collect and store data on you?

Committee Chairman Jay Rockefeller (D-W.Va.), who appeared not to be a frequent customer of Amazon or eBay, was worried that an online retailer “records every book you purchase” and “these machines, as I call them, are storing all of this information about you.”

Apparently, the members of Congress protecting citizens from the powers of these surveillance machines are completely unfamiliar with the way they work and the data they’re already collecting. Yet both the Bush and Obama Administrations want to make sure they’re the only ones who learn about the surveillance those surveillance machines are doing.

Obama Administration Wants to Make Domestic Surveillance Power Grab

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The White House wants to add just four words to the law that empowers the government to collect information on you w/o a warrant. But it would represent a huge expansion of the what the government could (legally) collect on you.

The administration wants to add just four words — “electronic communication transactional records” — to a list of items that the law says the FBI may demand without a judge’s approval. Government lawyers say this category of information includes the addresses to which an Internet user sends e-mail; the times and dates e-mail was sent and received; and possibly a user’s browser history. It does not include, the lawyers hasten to point out, the “content” of e-mail or other Internet communication.But what officials portray as a technical clarification designed to remedy a legal ambiguity strikes industry lawyers and privacy advocates as an expansion of the power the government wields through so-called national security letters. These missives, which can be issued by an FBI field office on its own authority, require the recipient to provide the requested information and to keep the request secret. They are the mechanism the government would use to obtain the electronic records.

Make no mistake. This is one of the most important pieces of civil liberties news in a long time. The Obama Administration is asking Congress to sanction the collection of internet records without a warrant–the kind of shit they used to do without a warrant, until people expressed their opposition.

But then Democrats took over and now they want legal sanction and now–Voila, a request that presumably provides cover.

Go read this article. I’ll have more to say about it, but for the moment, Julian Sanchez makes sense.

Surveillance, Spying, and Racial Profiling in Obama Era

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I’m watching a panel on online surveillance with Safir Ahmed (who edited Anatomy of Deceit and all of Markos’ books), Josh Gerstein, Farhana Khera, Michelle Richardson, and Adam Serwer.

Safir starts with a question about what has changed.

Gerstein: We don’t have a really good idea of what they’re doing with surveillance and racial profiling. We haven’t seen a lot of substantive changes. Gitmo closure, 9/11 trials, photos of detainee abuse. Admin fighting wiretapping lawsuits as aggressively as the Bush Administration did. Very against any dialogue with those on terrorist list. Privacy and Civil Liberties board, Obama hasn’t appointed anyone. Obama Admin a lot more careful about using terms like Islamic terrorism.

Khera (reported to Russ Feingold, dealt w/PATRIOT, Exec Director of Muslim Advocates): WaPo Top Secret just scratched the surface of the problem of IIC. Profiling at the border. Describes a woman scheduled to get married to a British man of Pakistani decent. US govt refused him a visa. She had to cancel wedding.

Richardson (now at ACLU, used to work for Conyers): Anything that goes over the internet, they’re collecting. One thing we can look at is PATRIOT Act. Obama did oppose reasonable limits on PATRIOT. Section 215. Can be hard drive of your work computer, can be entire database of information. No limit of what they can get. Opposed efforts to reform NSL authority. Laws have moved in one direction since 9/11: toward collecting information on innocent people. Raises efforts to require review of programs in Intell Communities. FISA Amendments Act expiring during Presidential year.

Serwer: Two big changes to highlight. Aftermath of Christmas bomber, DHS and Justice now regularly meet with Muslim groups to talk about national security, wasn’t going on under Bush. During Bush Admin, you had Dems in Congress strident about opposing abuses. Now Dems who once attacked PATRIOT now insisting that these powers are needed. SJC which had some of the most articulate critics of Bush passed their version of PATRIOT w/o any of changes that Feingold suggested. Feingold: What is this the prosecutors committee. (An implicit damnation of Whitehouse and Leahy, who were two who changed their stance on these issues.) DOJ now suing AZ over draconian illegal immigration law, but FBI guidelines allow profiling in surveillance. Muslim community most important asset, but that conflicts w/putting Muslim community under constant surveillance.  Most important thing in WaPo piece–can’t figure out if this is making us safer. Information overload problem.

Read more →

An Anonymous Government Official Doesn’t Want You to Know that Lockheed Works for NSA

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Tomorrow and Wednesday, the WaPo will continue its series on the Intelligence Industrial Complex. It will describe the contractors in the BWI/Fort Meade area that contribute to the NSA’s surveillance programs. According to the DNI’s Director of Communications, that story will describe the contractors in the vicinity, but not say explicitly that those contractors clustered around Fort Meade are working for the NSA.

The Post advises that “links” between individual contractors and specific agencies have been deleted, although the Post will still cite contractors and their locations.

Here’s the WaPo’s description of how it acceded to spy officials’ requests not to include maps like this one–showing one of Lockheed Martin’s extensive locations in the neighborhood of Fort Meade (anyone who has taken the train to BWI will pass another of these locations)–in its database.

Because of the nature of this project, we allowed government officials to see the Web site several months ago and asked them to tell us of any specific concerns. They offered none at that time. As the project evolved, we shared the Web site’s revised capabilities. Again, we asked for specific concerns. One government body objected to certain data points on the site and explained why; we removed those items. Another agency objected that the entire Web site could pose a national security risk but declined to offer specific comments.

We made other public safety judgments about how much information to show on the Web site. For instance, we used the addresses of company headquarters buildings, information which, in most cases, is available on companies’ own Web sites, but we limited the degree to which readers can use the zoom function on maps to pinpoint those or other locations.

Nevertheless, an anonymous official–who sounds an awful lot like Acting Director of National Intelligence David Gompert did in his official statement–is already out bitching about the contractor database the WaPo published as part of this series.

The database the Washington Post compiled during its “Top Secret America” two year investigation is “troubling,” one administration official told me this morning, saying it could become a road map for adversaries – a charge reporter William Arkin denied on “GMA.”

“We’ve been through months now of negotiations and discussions with the government. I don’t think there is anything here that would do harm to national security,” Arkin told me. “And frankly I’m an American as well and I don’t want to do any harm to American national security.”

The official also told me that President Obama and his team are committed to intelligence reform — calling it a “central issue” – and said the system basically worked preventing another major attack and taking out 10 of the top 20 Al Qaeda leaders. But Arkin argued otherwise – saying it is important to counter what “the government would like to put out as the good news.”

Now, this anonymous official (who sounds like David Gompert did) may have been smart enough to know that George Stephanopoulos would obediently grant him anonymity to conduct the pushback ODNI was planning even before they read the article (nice stenography, Steph!). But he apparently believes our adversaries limit their research to the DeadTree press and couldn’t figure out that Lockheed Martin works for NSA (among other agencies) via other means.  This anonymous official apparently believes our adversaries couldn’t do what Tim Shorrock did when he established the ties between Lockheed and NSA.

NATIONAL SECURITY AGENCY. Lockheed Martin has extremely close and long-standing ties with the NSA. In the mid-1950s it built the U-2 spy plane that played a key role in the Cold War and conducted some of the NSA’s initial research in signals collection. “The U-2 has been the backbone of our nation’s airborne intelligence collection operations for several decades and continues to provide unmatched operational capabilities in support of Operation Enduring Freedom,” Lockheed Martin states in its 2008 annual report. The U-2 “is expected to continue to provide leading-edge intelligence collection capabilities for years to come.”

The company’s extensive contracts with the NSA first became public in 1997. That year, Margaret Newsham, a contract engineer working for Lockheed Space and Missile Corporation at an NSA listening post in the United Kingdom, disclosed to Congress the existence of Echelon. This global surveillance network is run by the NSA and its counterparts in Britain, Australia, New Zealand, and Canada. She made the disclosure after hearing NSA intercepts of international calls placed by Sen. Strom Thurmond, the conservative South Carolina Republican. Her revelations sparked a spate of Congressional inquiries into whether the NSA was illegally listening in on domestic conversations. The discussions, led by a Republican civil libertarian, Rep. Bob Barr of Georgia, presaged the intense debate that would follow the 2005 revelations about President Bush’s “Terrorist Surveillance Program.” In July 1998 a report commissioned by the European Parliament confirmed that, through Echelon, the United States, and its closest allies had the capability to intercept most European phone calls, emails, and data communications, as well as the technology to decode almost any encrypted communication. This revelation sparked deep suspicion in European capitals that NSA was using Echelon to capture European business intelligence and trade secrets and pass them to U.S. companies.

Under a contract signed in 2005, Lockheed Martin provides an integrated electronic security system to protect NSA facilities in the Washington area. A similar system is in place at the Pentagon and dozens of U.S. military facilities abroad.

And then there are the other ways to figure this out. I first copped on to Lockheed’s ties to NSA when I noted there seemed to be a closer tie between Lockheed campaign contributions and Democrats who voted in favor of retroactive immunity on the FISA Amendments Act than contributions from AT&T.

Of course, presumably this anonymous official does know that our adversaries are not as dumb as he claims.

Which suggests it’s not our adversaries the anonymous official is really worried about. God forbid the citizens of this country–the average readers of the WaPo rather than those with training in intelligence that makes such research a cinch–find out who has been analyzing all the phone data collected in the guise of counterterrrorism.

The Intelligence Industrial Complex Prepares for War

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In my review of Tim Shorrock’s important Spies for Hire, I summarized one of the most important parts of the narrative he tells in the book.

Shorrock describes, for example, [Mike] McConnell’s key role in the formation of the Intelligence and National Security Alliance (INSA), a trade organization that serves as a bridge between large intelligence contractors (like Booz Allen, SAIC, Computer Sciences Corporation, and ManTech) and the officers from CIA, NSA, and DHS who join them on the board of the organization. “INSA,” Shorrock explains, “is one of the only business associations in Washington that include current government officials on their board of directors.” Shorrock describes how INSA worked with the DNI (back when John Negroponte was DNI and McConnell was head of INSA and a VP at Booz Allen) to foster information sharing in the intelligence community–including with contractors. He reports that, for the first time in 2006, INSA’s contractors were consulted on the DNI’s strategic plans for the next decade. And Shorrock describes one intelligence veteran wondering “if INSA has become a way for contractors and intelligence officials to create policy in secret, without oversight from Congress.”

McConnell, after nurturing this enhanced relationship between contractors and government intelligence services, ascended to serve as DNI. He was, Shorrock points out, “the first contractor ever to be named to lead the Intelligence Community.” Once confirmed, McConnell immediately buried a report assessing the practice of outsourcing intelligence. And he worked to further expand the ties between government spying and its contractors.

[snip]

[The warrantless wiretap program] not just about Bush and Cheney ignoring laws and spying on citizens (though it is that). It’s that, in the name of fighting terrorism, the Bush Administration is creating a monstrous new Intelligence-Industrial Complex in which intelligence contractors and the government collaborate–with little oversight–to snoop at home and abroad.

Now, Shorrock’s book got far too little attention, IMO. But he did lay out in great detail the many problems with the degree to which we have outsourced our national security infrastructure to contractors (and Jeremy Scahill has, of course, tirelessly chronicled that as well).

Which is why I’m amused by the panic revealed in a memo the Office of the Director of National Intelligence released a few weeks ago preparing all members of the intelligence community for an upcoming Dana Priest series covering the same terrain. The memo reveals:

  • The Director of Communications for ODNI, Art House, briefed Intelligence Community public affairs officers on the article back in January
  • House briefed the Deputies Committee for the intelligence community on the Priest series the week the memo was released
  • House has laid out a response plan to Priest’s article including his agency and the NSC, to be coordinated with all the IC agencies
  • House is already planning “a meeting or conference call to review procedural action before, during and after publication, and to compare substantive points that might be offered in rebuttal to the article”

Perhaps that’s just good messaging strategy–the kind that (as it happens) becomes a lot less effective when it is laid out ahead of time.

But what I’m perhaps most amused by is this paragraph:

This series has been a long time in preparation and looks designed to cast the IC and the DoD in an unfavorable light.  We need to anticipate and prepare so that the good work of our respective organizations is effectively reflected in communications with employees, secondary coverage in the media and in response to questions. [my emphasis]

Nowhere in this memo–at least as republished by Marc Ambinder–does House even hint that Priest has her details wrong (and given that she’s been working on it for two years, I’d be surprised if she did). The only real risk that House raises is the “unauthorized disclosure of sensitive and classified information.”

Yet the conclusion he draws from months of preparation for an article by Priest that is presumably factually correct is that it is “designed to cast the IC and the DoD in an unfavorable light.”

I’ve got a ton of respect for Priest’s reporting and therefore would guess that the article is designed to reveal the truth about the IC and DoD. And yet the intelligence community, inside its bunker, perceives a search for the truth as a design to portray it unfavorably.

What an apt explanation, then, for the problem with excessive contracting: when a reporter avails herself of Constitutionally protected rights to act as a watchdog on our government and its contractors, the government itself assumes that must be an attack. Hell, the IC has had time to preemptively respond to some of the problems Priest is about to reveal (and, as I said, Shorrock gave them a head start two years ago).

But instead, it has decided to go to war.

Right Wing Finally Talking about Rule of Law

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Don’t get me wrong. I’m happy that–after all these years–someone on the right is calling out Presidents Bush and Obama on their abuse of power (watch the video to hear Andrew Napolitano complain about Obama’s targeting of Anwar al-Awlaki).

Nader: Is that what you mean also about throwing people in jail without charges violating habeas corpus?

Napolitano: Well that is so obviously a violation of the natural law, the natural right to be brought before a neutral arbiter within moments of the government taking your freedom away from you. And the Constitution itself, as the Supreme Court in the Boumediene case pretty much said, wherever the government goes, the Constitution goes with it and wherever the Constitution goes are the rights of the Constitution as a guarantee and habeas corpus cannot be suspended by the president ever. It can only be suspended by the Congress in times of rebellion which in read Milligan says meaning rebellion of such magnitude that judges can’t get into their court houses. That has not happened in American history.

So what President Bush did with the suspension of habeas corpus, with the whole concept of Guantanamo Bay, with the whole idea that he could avoid and evade federal laws, treaties, federal judges and the Constitution was blatantly unconstitutional and is some cases criminal.

Nader: What’s the sanction for President Bush and Vice President Cheney?

Napolitano: There’s been no sanction except what history will say about them.

Nader: What should be the sanctions?

Napolitano: They should have been indicted. They absolutely should have been indicted for torturing, for spying, for arresting without warrants.

I agree with everything Napolitano says and I’m glad he’s pitching a book saying it. Welcome to the lonely battle of fighting for the rule of law.

But the time for the right wing to make these arguments was probably 2004, not 2010.

As April Strawberry Blossoms into Perfect Citizen

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A number of you have asked what I make of Siobhan Gorman’s latest story describing a program called “Perfect Citizen” that aims to monitor and map out attempted cyber-intrusions of our critical infrastructure.

Before I say anything about the content of the story, I should note that the nuclear power plant control room depicted with the story–from the plant at Limerick, PA–is just a few miles from where I spend Christmas and about 25 miles from where my mom lives. Maybe that has affected my thoughts on the matter.

But, given what Gorman has reported, I’m not all that bugged about Perfect Citizen. Here’s the operative bit:

Intelligence officials have met with utilities’ CEOs and those discussions convinced them of the gravity of the threat against U.S. infrastructure, an industry specialist said, but the CEOs concluded they needed better threat information and guidance on what to do in the event of a major cyber attack.

Some companies may agree to have the NSA put its own sensors on and others may ask for direction on what sensors to buy and come to an agreement about what data they will then share with the government, industry and government officials said.

While the government can’t force companies to work with it, it can provide incentives to urge them to cooperate, particularly if the government already buys services from that company, officials said.

Perhaps I’m missing something, but it seems that a somewhat coercive but nevertheless voluntary monitoring of cybersecurity for things like the nuclear plant near my Aunt’s home isn’t such a bad thing. Perhaps an analogy is whether or not it’d be okay to monitor health professionals and first responders during an epidemic for signs of sickness, as one of the best ways to track and minimize the spread of the disease. Or better yet, whether or not it’d be okay to pressure oil companies to put monitors on their drilling platforms to make it easier for Department of Interior to keep track and prevent spills.

That said, I do have a number of questions.

First, the NSA has been very squirrely about whether or not Congress has been briefed on this. Read more →

Obama Administration Grants Europeans Rights Americans Don’t Have

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You know what happens when your elected representatives fight for your privacy? Counterterrorism investigators actually grant you some!

At issue is SWIFT–the database that tracked most international money transfers which the Bush Administration mined in its counterterrorism fight. When SWIFT’s server moved to the EU, the US tried to demand the same access as it had had previously. But the EU Parliament–strengthened by the Lisbon treaty–rejected the terms the US initially demanded. And as negotiations went on, the EU insisted on safeguards for its citizens.

Well, the EU finally signed an agreement with the US, and here are the protections the EU won for its citizens (h/t LES):

Elimination of bulk data transfers

The key to the deal for Parliament was the eventual elimination of “bulk” data transfers. In exchange for backing the agreement, MEPs won an undertaking that work on setting up an EU equivalent to the US “Terrorism Finance Tracking Program” (TFTP), which would preclude the need for bulk data transfers, will start within 12 months. Once Europe has a system enabling it to analyse data on its own territory, it need only transfer data relating to a specific terrorist track.

A new role for Europol

Another innovation of the new agreement is that it empowers “Europol”, the EU’s criminal intelligence agency based in The Hague, to block data transfers to the USA. Europol will have to check that every data transfer request by the US Treasury is justified by counter-terrorism needs and that the volume of data requested is as small as possible.

An EU representative in the USA to monitor data processing

The new version of the agreement also provides that the use of data by the Americans, which must be exclusively for counter-terrorism purposes, is to be supervised by a group of independent inspectors, including someone appointed by the European Commission and the European Parliament. This person will be entitled to request justification before any data is used and to block any searches he or she considers illegitimate.

The agreement prohibits the US TFTP from engaging in “data mining” or any other type of algorithmic or automated profiling or computer filtering. Any searches of SWIFT data will have to be based on existing information showing that the object of the search relates to terrorism or terrorism finance.

Right of redress for European citizens

In February 2010, MEPs demanded that under any new version of the agreement European citizens should be guaranteed the same judicial redress procedures as those applied to data held on the territory of the European Union. The new proposal says this time that US law must provide a right of redress, regardless of nationality.

Data retention and deletion

Extracted data may be retained only for the duration of the specific procedures and investigations for which they are used. Each year, the US Treasury must take stock of any data that have not been extracted, and hence individualised, which will no longer be of use for counter-terrorism purposes, and delete them.  Such data must be deleted after five years at the latest.

There will be two checks–at the Europol level and via an EU representative working in the US–to make sure the data is being accessed appropriately. Within a year, Europe will assume the role the US is now playing. And the agreement at least grants redress in court and limits on data retention (though like those in Europe who opposed this deal, I’m skeptical of the efficacy of these requirements).

That’s more than we American citizens get under some of the provisions of the PATRIOT Act.

Then again, some of our representatives tried to win greater protections for US persons last year. But short of doing what the EU did–withdrawing US access to the data–Congress was unable to win concessions from the Administration.

Elena Kagan on Illegal Wiretapping

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From Elena Kagan’s first comments about Cheney’s illegal wiretapping program yesterday (at 2:10), it sounds almost like she’d vote for rule of law in the al-Haramain case (though the case is probably in the gray area of cases on which she should recuse herself).

DiFi: And we have just had a case. It came–by a District Court Judge in California, as of March 31 of this year, the al-Haramain case, and Senator Specter and I have discussed this. It’s my understanding that what the judge did here was find the Terrorist Surveillance Program illegal, and essentially say that the plaintiff was entitled to damages from the government. So I guess the question might be whether that case goes up to the Supreme Court or not. But clearly the judge here dealt with something that was outside of the scope of law–which was the Terrorist Surveillance Program–and made a finding that it was, in fact, illegal.

Kagan: I believe that is what the judge said in that case and that case is still pending of course and might come before the Court. I think that the appropriate analysis to use with respect to that case or many others in this area would be the Youngstown analysis which makes very important what Congress has done. Where Congress authorizes the President, it’s one thing, where Congress has said nothing, it’s still another, where Congress has specifically barred the activity in question, you’ve got a much much higher bar for the President to jump over in order to find the action Constitutional.

After all, as DiFi with her historic concern for FISA being the “exclusive means” to conduct wiretapping seems intent to remind Kagan,  warrantless wiretapping was specifically barred.

But maybe not. Read more →