Evan Kohlmann: Garbage In, Garbage Out

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Trevor Aaronson has an important piece on one of DOJ’s several “terrorism experts,” Evan Kohlmann. He has long been mocked, to no avail, by defense attorneys working terrorism cases for his lack of credentials and his hack theories about “radicalization;” Aaronson replays some of Kohlmann’s most embarrassing moments on the stand. Even in spite of that, judges keep accepting him as an expert witness. But Aaronson describes how Josh Dratel obtained discovery about another role Kohlmann plays with the FBI.

While representing at trial Mustafa Kamel Mustafa, of the Finsbury Park Mosque in London, New York lawyer Joshua Dratel, who has security clearances, was given classified materials about Kohlmann, a witness in the Mustafa prosecution. “It was the integrity of a prosecutor who learned of [the materials] some way,” Dratel said, crediting a single Justice Department employee for providing a rare full disclosure about Kohlmann.

Dratel has reviewed the classified materials in full, but he is prohibited from discussing their contents publicly. “It’s hard to talk about it without talkingabout it,” he said.

However, the judge in the Mustafa case allowed very limited references to the contents of the classified materials during Dratel’s cross-examination of Kohlmann — providing a clue to what the government is hiding about its star terrorism expert.

“You have done more than consulting for the FBI, correct?” Dratel asked Kohlmann.

“Correct,” Kohlmann said from the witness stand.

“You have done more than act as an expert for the government, correct?” Dratel followed.

“That’s correct, yes,” Kohlmann admitted.

That’s as far as the judge would allow.

Dratel asked Kohlmann whether he had told Tarek Mehanna prosecutors (Carmen Ortiz’ office) of his “precise” relationship with the FBI, but the judge prevented Dratel from obtaining a specific answer.

“In that case, in preparing for that case, or at any time during that case, did you inform the prosecutors in that case of your precise relationship with the FBI?” Dratel continued.

“I don’t know what you mean by ‘precise,’ but the prosecutors in that case I had worked with on a previous case, and they were fully aware of the nature of my work with the FBI,” Kohlmann answered.

“No, the precise nature of your relationship with the FBI,” Dratel said, speaking cryptically due to the classified material and the limits the judge had placed on his questions.

“Objection, your Honor,” the prosecutor interrupted.

“Did you inform them?” Dratel asked Kohlmann

Aaronson doesn’t guess, but I would guess that Kohlmann gets paid by the FBI to troll jihadist forums and identify potential sting targets.

A lot of counterterrorism cases include some evidence about online discussions (sometimes in forums, sometimes on more public sites), which gets turned over as an “unsolicited tip” to FBI officers, who then engage, and — on seemingly thin evidence — obtain a FISA warrant, which then leads to further evidence to support the sting. The judge in the case may never learn the details of this unsolicited tip, particularly if she is never asked to review a FISA warrant.

Defense attorneys never learn the details of those unsolicited tips — that’s part of what the whole FISA process hides — but they would be used in the materials to the FISC.

In other words, I’m guessing that Dratel got evidence that Kohlmann is providing the raw material for FBI’s stings, based on his whackjob theory of radicalization (the reference to Mehanna’s case may mean — and this is purely speculation — Kohlmann took part in some of the same kinds of online discussions that were used to incriminate Mehanna.

If I’m right, though, it would confirm what observers — starting with former FBI Agent Mike German — have long talked about: that the government is funding an echo chamber of “experts” who create the approach to terrorism we use, then reinforce it with their purported expertise.

This insight is crucial to understanding the government’s continuing embrace of radicalization theories. Simply put, the government continues to be the primary sponsor of radicalization studies because they justify counterterrorism policies that maximize its policing powers. As Kundnani has written, “[s]cholarship that associates a particular kind of ‘disposition’, be it ‘cultural,’ ‘psychological’…, with terrorist violence enables intelligence gatherers to use that disposition as a proxy for terrorist risk and to structure their surveillance accordingly.”

Treating terrorism as the spread of an ideological infection within a vulnerable community also allows the government to put aside difficult questions about the role U.S. foreign and national security policies play in generating anti-American grievances, which the Defense Department raised in this 2004 report. Studies supporting government radicalization theories rarely mention U.S. military actions in Muslim countries, lethal drone strikes, torture, or theGuantanamo Bay prison as radicalizing influences, though many terrorist reference them in attempting to justify their actions.

The reliance on radicalization theory also provides benefits to those who support the current political, social, and financial status quo, particularly in regard to U.S. foreign policy. The support for these theories comes from a broad array of organizations.

[snip]

Neo-conservativethink-tanks, private terrorism investigators, and cyber vigilantes that typically support the maintenance of interventionist Middle East policies and aggressive counterterrorism measures also stand to benefit from the government’s reliance on radicalization theory. These self-styled experts have the appearance of independent researchers, but often serve as echo-chambers for government theories of extremist organizations and behavior. As a defense attorney explained to The Nation, “[t]hey all work for the government or they work for government-funded agencies or government-contracted projects… [a]nd so when the government calls them, they are ready sources of government-approved information.”

If Kohlmann is one of the “private terrorism investigators” German mentions — and he certainly fits the bill — then he very likely is dumping garbage of whackjob theory picked targets into the system, and then validating the same whackjob theories on the stand.

I don’t know the precise specifics of what Dratel has been alerted to, but it sure does seem like we’re closer to proving that Kohlmann and his ilk are providing Garbage In Garbage Out that drives the war on terror.

CryptoWars, the Obfuscation

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The US Courts released its semiannual Wiretap Report the other day, which reported that very few of the attempted wiretaps last year were encrypted, with even fewer thwarting law enforcement.

The number of state wiretaps in which encryption was encountered decreased from 41 in 2013 to 22 in 2014. In two of these wiretaps, officials were unable to decipher the plain text of the messages. Three federal wiretaps were reported as being encrypted in 2014, of which two could not be decrypted. Encryption was also reported for five federal wiretaps that were conducted during previous years, but reported to the AO for the first time in 2014. Officials were able to decipher the plain text of the communications in four of the five intercepts.

Motherboard has taken this data and concluded it means the Feds have been overstating their claim they’re “going dark.”

[N]ew numbers released by the US government seem to contradict this doomsday scenario.

[snip]

“They’re blowing it out of proportion,” Hanni Fahkoury, an attorney at the digital rights group Electronic Frontier Foundation (EFF), told Motherboard. “[Encryption] was only a problem in five cases of the more than 3,500 wiretaps they had up. Second, the presence of encryption was down by almost 50 percent from the previous year.

“So this is on a downward trend, not upward,” he wrote in an email.

Much as I’d like to, I’m not sure I agree with Motherboard’s (or Hanni Fahkoury’s) conclusion.

Here’s what the data show since 2012, which was the first year jurisdictions reported being unable to break encryption (2012; 2013):

Screen Shot 2015-07-02 at 11.07.09 AM

You’ll see lots of parenthetical entries and NRs. That’s because this data is not being reported systematically. Parenthetical references are to encrypted feeds not reported until years after they get set, and usually those have been decrypted by the time they’re reported. NRs show that we have not getting these numbers, if they exist, from federal law enforcement (and the numbers can’t be zero, as reported here, because FBI has been taking down targets like Silk Road). The reporting on this ought to raise real questions about the quality of the data being reported and perhaps might spark some interest in mandating better reporting of this data so it can be tracked. But it also suggests that — at a time when law enforcement are just beginning to find encryption they can’t break (immediately) — there’s a lot of noise in the data. Does 2013’s 2% of encrypted targets and half-percent that couldn’t be broken represent a big problem? It depends on who the target is — a point I’ll come back to.

Congress will soon have that opportunity (but won’t avail themselves of it).

Even as US Courts were reporting still very low levels of encryption challenges faced by law enforcement, both the Senate Judiciary Committee and the Senate Intelligence Committee announced hearings next Wednesday where Jim Comey will have yet another opportunity to try to present a compelling argument that he should have back doors into our communication. SJC even saw fit to invite witnesses with opposing viewpoints, which the “intelligence” committee saw no need to do.

In an apparent attempt to regain some credibility before these hearings (Jim Comey is nothing if not superb at working the media), Comey went to Ben Wittes to suggest his claimed concern with increasing use of encryption has to do with ISIS’ increasing use of encryption. Ben quotes from Comey’s earlier comments to CNN then riffs on that in light of what Comey just told him in a conversation.

“Our job is to find needles in a nationwide haystack, needles that are increasingly invisible to us because of end-to-end encryption,” Comey said. “This is the ‘going dark’ problem in high definition.”

Comey said ISIS is increasingly communicating with Americans via mobile apps that are difficult for the FBI to decrypt. He also explained that he had to balance the desire to intercept the communication with broader privacy concerns.

“It is a really, really hard problem, but the collision that’s going on between important privacy concerns and public safety is significant enough that we have to figure out a way to solve it,” Comey said.

Let’s unpack this.

As has been widely reported, the FBI has been busy recently dealing with ISIS threats. There have been a bunch of arrests, both because ISIS has gotten extremely good at the inducing self-radicalization in disaffected souls worldwide using Twitter and because of the convergence of Ramadan and the run-up to the July 4 holiday.

As has also been widely reported, the FBI is concerned about the effect of end-to-end encryption on its ability to conduct counterterrorism operations and other law enforcement functions. The concern is two-fold: It’s about data at rest on devices, data that is now being encrypted in a fashion that can’t easily be cracked when those devices are lawfully seized. And it’s also about data in transit between devices, data encrypted such that when captured with a lawful court-ordered wiretap, the signal intercepted is undecipherable.

[snip]

What was not clear to me until today, however, was the extent to which the ISIS concerns and the “going dark” concerns have converged. In his Brookings speech, Comey did not focus on counterterrorism in the examples he gave of the going dark problem. In the remarks quoted by CNN, and in his conversation with me today, however, he made clear that the landscape is changing fast. Initial recruitment may take place on Twitter, but the promising ISIS candidate quickly gets moved onto messaging platforms that are encrypted end to end. As a practical matter, that means there are people in the United States whom authorities reasonably believe to be in contact with ISIS for whom surveillance is lawful and appropriate but for whom useful signals interception is not technically feasible.

Now, Ben incorrectly blurs the several roles of FBI here. FBI’s interception of ISIS communiques may be both intelligence and law enforcement. To the extent they’re the former — to the extent they’re conducted under FISA — they won’t show up in US Courts’ annual report.

But they probably should, if Comey is to have any credibility on this front.

Moreover, Ben simply states that “there are people in the United States whom authorities reasonably believe to be in contact with ISIS for whom surveillance is lawful and appropriate.” But there’s no evidence presented to support this. Indeed, most of the so-called ISIS prosecutions have shown 1) where probable cause existed, it largely existed in the clear, in Twitter conversations and other online postings and 2) there may not have been probable cause before FBI ginned it up.

It ought to raise real questions about whether Comey’s going dark problem is a law enforcement one — with FBI being unable to to access evidence on real criminals — or is an intelligence one — with FBI being unable to access First Amendment protected speech that nevertheless may be important for an understanding of the threat ISIS poses domestically. Again, the data is not there, one way or another, but given the law enforcement data, we ought to demand real numbers for intelligence intercepts. Another pertinent question is whether this encrypted data is easily accessible to NSA (ISIS recruiters are almost entirely going to be legitimate NSA targets located overseas), but not to FBI?

And all this presumes that Comey is telling the truth about ISIS and not — as he and just about every member of the Intelligence Community has done routinely — used terror threats to be able to get authorities to wield against other kinds of threats, especially hackers (which is not to say hackers aren’t a target, just that the IC likes to pretend its authorities serve an exclusively CT purpose when they clearly do not). The law enforcement data, at least, show that even members of very sophisticated drug distribution networks are using encryption at a really low level. Is ISIS’ ability to coach potential recruits into using encrypted products on Twitter really that much better, or is Comey really talking about hackers who more obviously have the technical skills to encrypt their communications?

Thus far, Comey would have you believe that intelligence — counterterrorism — targets encrypt at a much higher rate than even drug targets. But the data also suggest even federal law enforcement (that is, Comey’s agency, among others) aren’t tracking this very effectively, and so can’t present reliable numbers.

Before we go any further in this cryptowar debate, we ought to be able to get real numbers on how serious the problem is.

Floating Security

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Screen Shot 2015-06-29 at 11.25.57 AMGreetings! I’m back, just in time to refill the liquor cabinet. Thanks to Rayne, Jim, bmaz, and Ed for their fascinating posts while I was gone (and if you haven’t read it, I especially recommend Ed’s series on paradigms in economics).

As I mentioned before I left, I just took a vacation with my mom, who turned 75 during our trip. Because seeing Russia and Scandinavia were on her bucket list but she has mobility limitations, we decided to go on a Baltic cruise for the trip (it was my first cruise). Which meant, among other things, we we sailing from Germany past Poland and Kaliningrad to Lithuania on the last days of a NATO war game involving the Baltics, and we were docked in St. Petersburg for 3 days.

While I don’t know whether it was related to the war games, on the night of June 17-18, the ship took what a long-time sailor told us the next day seemed like an evasive maneuver at 2 AM that woke everyone I spoke to up. The following day, at around 6 (almost no one was awake because it was our one sailing day), the crew noted a ship tracking us on our starboard side that seemed very unusual to them. It pulled up ahead of the cruise ship far enough I couldn’t get a good picture or binocular check (it had a mostly red flag) when I returned, but was there for about 6 hours. I suck ass at military ship identification but it might have been a frigate. In any case, the New Cold War™ has not yet heated up sufficiently to turn our cruise ship into the Lusitania, so you’re all stuck with me.

I was just as interested in the security procedures for the ship. There are obvious measures (as those of you who have taken cruises surely know): a card check as you get on and off the boat every time, with metal detectors every time you get back on the boat. What I found interesting, though, were the less obvious measures, something you’d need to have for something that would otherwise be such an easy target but for which you wouldn’t want passengers to realize it. For example, there were undercarriage checks (the kind that are meant to be obvious in places like Brazil) that were not obviously visible. There were deck guards (one of whom got sheepish when I got into a conversation about the sunset he was taking a picture of), which are probably intended to minimize teenage pregnancies as much as anything else, but which keep a low profile on outer decks late at night. You couldn’t see security cameras anywhere, but I’m sure they were omnipresent. I’m really interested in the security checks employees undergo, as there can be up to 1,000 tip-dependent employees from developing nations on board. In any case, I imagine the cruise ship tracks everyone’s movement on board through use of key cards.

I was also interested in how cruise ship security intersected with Russian security (Russia has a 3-day exception to its visa requirement for cruise ship passengers who use a tour guide in Russia and return to their ship every night, but it requires going through customs every time you leave the ship and there is fine print that got a few people in trouble). Every time you left the ship, you’d first be scanned off the ship, then interact with a surly Russian border guard (I tried to little avail to butter them up with my very rudimentary Russian). On return, you’d go through a Russian metal detector to get into the port facility — but the guards only made you put bags through their x-ray machine, not all metal, and they pretty much ignored when you set off the metal detector. In other words, while Russia made a show of preventing weapons or bombs from entering the cruise ship terminal, it was pretty ineffective (there was a toll entry to get to the port itself by car, bus, or truck, though, which may limit what kinds of people could even get to the port). Then, you’d be checked out of Russia by the same surly border guards. Next you’d be checked into the boat and put through another metal detector upon entering the ship (though there were a few weak points to this process that I won’t mention). Though admittedly, the ship security was probably also designed as much to find booze and food that passengers were taking onto the ship, both of which had ostensible security purposes, but also served the cruise’s business model of ensuring captive consumption of booze on board.

In any case, the cruise ship obviously didn’t trust Russia’s security measures, but the latter probably rely much more on their own intelligence and policing.

All of which is to say the cruise ship is an exercise in a mix between security theater (the not entirely perfect metal detector on board) and more obscure but presumably more effective measures. Given the volume of passengers that have to be processed in quick order, it would seem to be proof that such an approach is possible in other areas (including aviation), but we choose not to use it. Or maybe cruise ships are 1) better able to do a cost-benefit analysis and 2) subject to fewer US laws. I’m now interested in more about how cruise ships carry out their security, though expect much of it is secret.

One final observation. I found Lithuania (Klaipeda, right on the border with Kaliningrad) to be the most fascinating stop, in part because it has been a cruise destination for a shorter period of time than, say, Tallinn, and so has not been transformed as much. Mom and I took a ferry to the Curonian Spit, then took a taxi down the spit and then back to Klaipeda; our taxi drivers were a son and then his father in succession. That’s where my (as I noted, very rudimentary) Russian was most interesting. At the ferry, I was told clearly not to use it at all by a maybe 55-year old woman. The son, who had excellent Hollywood English, was more measured. His father, who reminded that he had had to use Russia all through school and military service, was very happy to have a quasi conversation in Russian with me (we occasionally resorted to Polish and Czech at times, as better mutually comprehensible languages). I found the mixed feelings about Russian, in a place with a very audible Russian minority, to be fascinating. But then, Lithuania is ground zero for the New Cold War™ and I can understand how rising tensions exacerbate underlying divisions.

Anyway, that’s the sum of my impressions from being unable to entirely turn off the security side of my brain.

Cyber-spawn Duqu 2.0: Was Malware Infection ‘Patient Zero’ Mapped?

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Cybersecurity_MerrillCollegeofJournalismKaspersky Lab reported this morning a next-generation version of Duqu malware infected the information security company’s network.

Duqu is a known reconnaissance malware. Its complexity suggests it was written by a nation-state. The malware appears closely affiliated with the cyber weapon malware Stuxnet.

WSJ reported this particular version may have been used to spy on the P5+1 talks with Iran on nuclear development. Dubbed ‘Duqu 2.0,’ the malware may have gathered audio, video, documents and communications from computers used by talk participants.

Ars Technica reported in depth on Kaspersky’s discovery of the malware and its attributes. What’s really remarkable in this iteration is its residence in memory. It only exists as a copy on a drive at the first point of infection in a network, and can be wiped remotely to destroy evidence of its occupation.

The infosec firm killed the malware in their networked devices by mimicking a power outage. They detached from their network suspect devices believed to contain an infecting copy.

Kaspersky’s Patient Zero was a non-technical employee in Asia. Duqu 2.0 wiped traces of its own insertion from the PC’s drive.

Neither WSJ or Ars Technica noted Kaspersky’s network must have been subject to a program like TREASUREMAP.

…Because the rest of the data remained intact on the PC and its security patches were fully up to date, researchers suspect the employee received a highly targeted spear phishing e-mail that led to a website containing a zero-day exploit. … (bold mine – source: Ars Technica)

How was a single non-technical point of contact in Asia identified as a target for an infected email? Read more →

Intelligence Committees Still Trying to Force Agencies to Follow Reagan’s Rules

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34 years ago Ronald Reagan issued the Executive Order that still governs most of our country’s intelligence activities, EO 12333.

As part of it, the EO required any agency using information concerning US persons to have a set of procedures laying out how it obtains, handles, and disseminates information (see the language of 2.3 below).

Only — as the Privacy and Civil Liberties Oversight Board started pointing out in August 2013 — some agencies have never complied. In February, PCLOB revealed the 4 agencies that are still flouting Reagan’s rules, along with what they have been using:

The Department of Homeland Security’s notoriously shoddy Office of Intelligence and Analysis: Pending issuance of final procedures, I&A is operating pursuant to Interim Intelligence Oversight Procedures, issued jointly by the Under Secretary for Intelligence and Analysis and the Associate General Counsel for Intelligence (April 3, 2008).

United States Coast Guard (USCG)- Intelligence and counterintelligence elements: Pending issuance of final procedures, operating pursuant to Commandant Instruction – COMDINST 3820.12, Coast Guard Intelligence Activities (August 28, 2003).

Department of Treasury Office of Intelligence and Analysis (OIA): Pending issuance of final procedures. While draft guidelines are being reviewed in the interagency approval process, the Office of Intelligence and Analysis conducts intelligence operations pursuant to EO 12333 and statutory responsibilities of the IC element, as advised by supporting legal counsel.

Drug Enforcement Administration, Office of National Security Intelligence (ONSI): Pending issuance of final procedures, operates pursuant to guidance of the Office of Chief Counsel, other guidance, and: Attorney General approved “Guidelines for Disclosure of Grand Jury and Electronic, Wire, and Oral Interception Information Identifying United States Persons” (September 23, 2002); Attorney General approved “Guidelines Regarding Disclosure to the Director of Central Intelligence and Homeland Security Officials of Foreign Intelligence Acquired in the Course of a Criminal Investigation” (September 23, 2002).

Last year’s House Intelligence Committee version of NSA reform (the one I called RuppRoge) would have included language requiring agencies to finish these procedures — mandated 34 years ago — within 6 months. And now, over a year later, Dianne Feinstein’s latest attempt at reform echoed that language.

Which strongly suggests these agencies are still deadbeats.

As I said in February, I’m most concerned about DEA (because DEA is out of control) and, especially, Treasury (because Treasury’s intelligence activities are a black box with little court review). Treasury is making judgements that can blacklist someone financially, but it has thus far refused to institute procedures to protect Americans’ privacy while it does so.

And no one seems to be rushing to require them to do so.

2.3 Collection of Information. Agencies within the Intelligence Community are authorized to collect, retain or disseminate information concerning United States persons only in accordance with procedures established by the head of the agency concerned and approved by the Attorney General, consistent with the authorities provided by Part 1 of this Order. Those procedures shall permit collection, retention and dissemination of the following types of information:
(a) Information that is publicly available or collected with the consent of the person concerned;
(b) Information constituting foreign intelligence or counterintelligence, including such information concerning corporations or other commercial organizations. Collection within the United States of foreign intelligence not otherwise obtainable shall be undertaken by the FBI or, when significant foreign intelligence is sought, by other authorized agencies of the Intelligence Community, provided that no foreign intelligence collection by such agencies may be undertaken for the purpose of acquiring information concerning the domestic activities of United States persons;
(c) Information obtained in the course of a lawful foreign intelligence, counterintelligence, international narcotics or international terrorism investigation;
(d) Information needed to protect the safety of any persons or organizations, including those who are targets, victims or hostages of international terrorist organizations;
(e) Information needed to protect foreign intelligence or counterintelligence sources or methods from unauthorized disclosure. Collection within the United States shall be undertaken by the FBI except that other agencies of the Intelligence Community may also collect such information concerning present or former employees, present or former intelligence agency contractors or their present or former employees, or applicants for any such employment or contracting;
(f) Information concerning persons who are reasonably believed to be potential sources or contacts for the purpose of determining their suitability or credibility;
(g) Information arising out of a lawful personnel, physical or communications security investigation;
(h) Information acquired by overhead reconnaissance not directed at specific United States persons;
(i) Incidentally obtained information that may indicate involvement in activities that may violate federal, state, local or foreign laws; and
(j) Information necessary for administrative purposes.
In addition, agencies within the Intelligence Community may disseminate information, other than information derived from signals intelligence, to each appropriate agency within the Intelligence Community for purposes of allowing the recipient agency to determine whether the information is relevant to its responsibilities and can be retained by it.

Mike Morell’s Performance of “Intelligence”

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Given that Bill Harlow co-wrote George Tenet and Jose Rodriguez’ autobiographical novels, it’s fairly clear he continues to propagandize for the CIA years after he left the Agency as Public Affairs officer. Still, his past autobiographical novels were perhaps more convincing than the roll out of Mike Morell’s autobiographical novel, The Great War of Our Time, which Harlow also co-wrote. That’s pretty remarkable given that Morell had more retained credibility than either of the other two. This propaganda tour actually seems to be eroding Morell’s credibility.

Part of the problem is interviews like this, where Morell says both that we should be “all in” with Saudi Arabia (an asinine judgement, in my opinion, perhaps betraying CIA’s close ties to the Saudis) and that we should support secular Bashar al-Assad, which is totally inconsistent with his first stance.

And he makes those two claims in an interview where he also claims that numbers on collateral damage tied to drone strikes are “propaganda.”

“The other thing I’ll say is that this is the most precise weapon in the U.S. arsenal.  Collateral damage is not zero — and gosh, I wish it were zero, but it’s not — but it’s very close to zero.

“Number three, the numbers that you see about huge numbers of collateral damage just aren’t true.  They are put out there as propaganda by people who want this program to go away, and al-Qaida is one of those groups.”

It’s a great display of Morell’s approach to lying.

First, most people don’t claim there are huge numbers of collateral damage. TBIJ — which is both one of the more partisan voices against drone strikes but which also does some of the most meticulous work tracking drone killing over years — shows that civilians amount for around 14%  of those killed (a lower number than some more hawkish counts). The number itself is not, as Morell depicts it, “huge.” But it is, nevertheless, a relatively large amount, one what brings with it a lot of blowback. And the numbers — which again, are similar to those tracked my multiple independent sources — are much higher than CIA publicly claims.

It is CIA, and not drone killing trackers, engaged in propaganda here.

Yet by refuting something his opponents hadn’t asserted, Morell gets to claim to have debunked it.

While I have no idea what part of Sy Hersh’s story on Osama bin Laden are true, Morell’s use of the same method to debunk Hersh suggests he’s engaged — at least partly — in non-denial denial.

Jeff Stein deals with one problem with Morell’s debunking. CIA’s former Deputy Director claims that if we had tipped the Pakistanis (who are dealt with as a monolith in Morell’s story) they would have told Osama bin Laden. Wouldn’t that require knowledge of where he was, and some ongoing interest in protecting him? If so, that actually confirms a key premise of Hersh’s (and other reporters’) stories.

Then there’s Morell’s debunking of the walk-in story.

He claims that we learned of bin Laden’s location not from following the courier and from excellent intelligence analysis, but from a Pakistani intelligence officer who walked into the U.S. Embassy and gave us bin Laden’s whereabouts in exchange for “much of the $25 million reward offered by the U.S.” The truth is that while walk-ins have long been useful in providing intelligence to us world-wide, none of the information that led to finding the location where bin Laden was came from walk-ins.

NBC has already confirmed that there was a walk-in — just that he wasn’t key to identifying OBL’s location.

Editor’s Note: This story has been updated since it was first published. The original version of this story said that a Pakistani asset told the U.S. where bin Laden was hiding. Sources say that while the asset provided information vital to the hunt for bin Laden, he was not the source of his whereabouts.

Morell’s statement is utterly consistent with NBC’s reporting.

Morell claims to debunk Hersh’s claim that CIA obtained DNA from OBL.

bin Laden was very ill, and that early on in his confinement at Abbottabad, the ISI had ordered Amir Aziz, a doctor and a major in the Pakistani army, to move nearby to provide treatment.

[snip]

The planners turned for help to Kayani and Pasha, who asked Aziz to obtain the specimens. Soon after the raid the press found out that Aziz had been living in a house near the bin Laden compound: local reporters discovered his name in Urdu on a plate on the door. Pakistani officials denied that Aziz had any connection to bin Laden, but the retired official told me that Aziz had been rewarded with a share of the $25 million reward the US had put up because the DNA sample had showed conclusively that it was bin Laden in Abbottabad.

But Morell focuses on obtaining DNA from the compound and from OBL’s children, not from OBL himself.

Mr. Hersh says we obtained DNA samples from people in the bin Laden compound before the assault was launched. Wrong again. We would have liked to have obtained samples from the children in the compound to confirm that they were bin Laden’s children, but we did not. [my emphasis]

And Morell claims Hersh’s claim that SEALs couldn’t have thrown OBL body parts out the helicopter over the Hindu Kush …

The remains, including his head, which had only a few bullet holes in it, were thrown into a body bag and, during the helicopter flight back to Jalalabad, some body parts were tossed out over the Hindu Kush mountains – or so the Seals claimed.

… Because he received a burial at sea.

Finally—and most absurdly perhaps—Mr. Hersh cites his sources as telling him that SEALs threw bin Laden body parts off their helicopter over the Hindu Kush and suggests that the burial at sea from the USS Carl Vinson never happened. Bin Laden’s body received a proper Muslim burial at sea. How do I know? I heard the president give the order, and I saw photographs and video of the burial at sea.

Now, to be fair, this is one claim from Hersh I’m most skeptical of (though I realize now the SEALs might have thrown some body parts out the helicopter to leave DNA evidence that OBL was killed there, which was the purported cover story). But Morell’s debunking is no such thing, because it is perfectly possible a shrouded corpse could be buried at sea even if it were missing some body parts. (I’ll also note that JSOC hid what I believe to be trophy photos after this story started breaking, which suggests the SEALs did something with the corpse that would cause problems if it were publicized, though I always assumed they just hammed it up.)

In other words, as Morell does for his drone propaganda, he usually doesn’t debunk what Hersh wrote, but instead something else.

Which is a suggestion that he’s engaged in another cover story.

As FBI Considers Declaring State Secrets over Its Religion Training, ICE Releases Its Martyrdom Border Entry Questions

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Three years ago, CAIR-MI sued the Department of Homeland Security and FBI because Muslims crossing the US-Canadian border keep getting asked questions about their religion. The suit has proceeded with CAIR getting discovery that largely remains secret.

But in a cross-motion filed last week, the government got really squirrelly relating to some information on how it deals with border questioning. It’s worried about three things: two FBI training documents and the redacted parts of a Sample Questionnaire ICE uses at the border.

At least one of the FBI training documents provides guidance on how the Bureau investigates certain things (likely Sensitive investigative subjects), including religion. The second is a training program attended by an Agent who had asked sensitive questions to one of the plaintiffs.

As set forth in Defendants’ Privilege Log of FBI Documents, FBI #2 is an “FBI operational training providing guidance on certain categories of investigations, one portion of which included questions related to religion.” See Pl. Mot. Exh. E. The Log further explains that the document “contains law enforcement sensitive information, the disclosure of which would impede or impair the effectiveness of an investigation and/or an investigative technique, method or procedure; and national security information.” The Log described FBI #4 as “Training attended by CBP Officer Janos during his affiliation with the FBI Task Force (described in response to Interrogatory 9),” and explained that it is a law enforcement sensitive document, the disclosure of which could harm the effectiveness of an investigation or an investigative technique, and “contains personally identifying information about individuals not party to this action.”

The government says that if the judge rules the first training program relevant to this suit, they may claim state secrets over it.

Therefore, if the Court determines thatthe national security information included in this document is both relevant toPlaintiffs’ equal protection claim and not protected from disclosure by the lawenforcement privilege, then Defendants request at least 60 days to considerwhether that information is subject to an assertion of the state secrets privilege,

Since 2008, when DOJ made it okay to use religion as one factor in investigations, there have been questions about how it might play into those investigations. But apparently, DOJ would rather invoke state secrets than tell us.

Then there’s the other thing the government doesn’t want to reveal: its list of questions it asks (under what circumstances, it won’t say) at the border. Some of those got released in a redacted list to the plaintiffs, released last week as part of a declaration explaining why the questions that get asked of selected people crossing the border can’t be released altogether.

But along with asking questions about who the interviewee’s faith leader is (these questions lay at the heart of the suit), they also ask about martyrdom (though one question remains redacted).

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It’s hard to imagine how such questions would ever elicit a useful response — unless the desired response is just to make people nervous. Someone ideological enough to have lost associates as suicide bombers would respond affirmatively rather than hiding their own associations?

But particularly given DHS’ excuse that because, as written, this questionnaire’s religious questions are religion neutral, the questions on martyrdom are absurd. Not because just Jihadists foster the claim of suicide bombing (though I think even that claim could be true), but also because so many completely innocent Muslims have been killed in recent years for living in the wrong place at the wrong time. Do those people count as martyrs? Or is this another attempt to instill an odd multileveled evaluation of deaths, in which the only dead Muslims are those extremists who’ve deliberately killed themselves, and not the million who create the animus?

Or does DHS just plan on deporting someone years from now because someone didn’t identify a relative killed in an asymmetric war as a “martyr,” the word DHS itself picked?

It’s clear DHS is asking religious questions (though it’s not clear whether CAIR will have the ability to show that, because only Muslims get pulled into secondary, the questions end up getting posed only to Muslims). But with this odd martyrdom question, it’s also hard to see how these are effective questions.

Now That’s Some Disturbance in the Force

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At some time around 9:30 PM ET at the INSA Leadership Dinner, John Brennan suggested that maybe the CIA Director — that is, maybe he — should have a 10 year term.

D/CIA John Brennan says it might make sense to have the CIA director and DNI serve similar terms to the FBI director’s 10-year term.

At 4:30 AM Saudi time (so 9:30 PM ET), Saudi King Salman announced a major royal shake-up. Rather than his brother Muqrin bin Abdulaziz being Deputy and heir to the throne, American favorite and very close Brennan buddy Mohammed bin Nayef will be heir.

Saudi King Salman is announcing a major royal shake-up at 4:30 am. Muqrin is out, M. Bin Nayaf is the new heir, his own son deputy heir.

That’s a rather interesting power move by two closely affiliated types (though I assume that the CIA Director can’t do these things by fiat … yet).

Update: Adding, King Salman’s insomnia induced Kingdom restructuring also apparently made Ambassador to the US (the guy whom Manssor Arbabsiar was purportedly trying to kill) Adel al-Jubeir Foreign Minister.

Michael Horowitz’ Monthly Complaint about FBI and DEA Stonewalling

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The House Oversight Committee is having a hearing on the problems law enforcement agencies have with sexual harassment and misconduct, as reported by DOJ’s Inspector General. DEA Administrator Michele Leonhart will be offering amusing testimony about how the DEA has given its Agents clear instructions that they’re really the best evah™ but they need to stop breaking the law.

But because I’m an IG nerd, I’m as interested in what has become a monthly event during DOJ Inspector General Michael Horowitz’ tenure, when he provides details of FBI and DEA’s latest stonewalling of oversight. Here’s today’s version:

Further, we cannot be completely confident that the FBI and the DEA provided us with all information relevant to this review. When the OIG finally received from the FBI and DEA the requested information without extensive redactions, we found that it still was incomplete. For example, we determined that the FBI removed a substantial number of cases from the result of their search and provided additional cases to the OIG only after we identified some discrepancies. These cases were within the scope of our review and should have been provided as requested. Likewise, the DEA also provided us additional cases only after we identified some discrepancies. In addition, after we completed our review and a draft of the report, we learned that the DEA used only a small fraction of the terms we had provided to search its database for the information needed for our review. Rather than delay our report further, we decided to proceed with releasing it given the significance of our findings.

We also determined that the DEA initially withheld from us relevant information regarding an open case involving overseas prostitution. During a round of initial interviews, only one interviewee provided us information on this case. We later learned that several interviewees were directly involved in the investigation and adjudication of this matter, and in follow-up interviews they each told us that they were given the impression by the DEA that they were not to talk to the OIG about this case while the case was still open. In order to ensure the thoroughness of our work, the OIG is entitled to receive all information in the agency’s possession regardless of the status of any particular case.

As I have testified on multiple occasions, in order to conduct effective oversight, an Inspector General must have timely and complete access to documents and materials needed for its audits, reviews, and investigations. This review starkly demonstrates the dangers inherent in allowing the Department and its components to decide on their own what documents they will share with the OIG, and even whether the Inspector General Act requires them to provide us with requested information. The delays experienced in this review impeded our work, delayed our ability to discover the significant issues we ultimately identified, wasted Department and OIG resources during the pendency of the dispute, and affected our confidence in the completeness of our review.

This was not an isolated incident. Rather, we have faced repeated instances over the past several years in which our timely access to records has been impeded, and we have highlighted these issues in our reports on very significant matters such as the Boston Marathon Bombing, the Department’s use of the Material Witness Statute, the FBI’s use of National Security Letters, and ATF’s Operation Fast and Furious.

The Congress recognized the significance of this impairment to the OIG’s independence and ability to conduct effect oversight, and included a provision in the Fiscal Year 2015 Appropriations Act — Section 218 — which prohibits the Justice Department from using appropriated funds to deny, prevent, or impede the OIG’s timely access to records, documents, and other materials in the Department’s possession, unless it is in accordance with an express limitation of Section 6(a) of the IG Act. Despite the Congress’s clear statement of intent, the Department and the FBI continue to proceed exactly as they did before Section 218 was adopted – spending appropriated funds to review records to determine if they should be withheld from the OIG. The effect is as if Section 218 was never adopted. The OIG has sent four letters to Congress to report that the FBI has failed to comply with Section 218 by refusing to provide the OIG, for reasons unrelated to any express limitation in Section 6(a) of the IG Act, with timely access to certain records.

We are approaching the one year anniversary of the Deputy Attorney General’s request in May 2014 to the Office of Legal Counsel for an opinion on these matters, yet that opinion remains outstanding and the OIG has been given no timeline for the issuance of the completed opinion. Although the OIG has been told on occasion over the past year that the opinion is a priority for the Department, the length of time that has now passed suggests otherwise. Instead, the status quo continues, with the FBI repeatedly ignoring the mandate of Section 218 and the Department failing to issue an opinion that would resolve the matter. The result is that the OIG continues to be prevented from getting complete and timely access to records in the Department’s possession. The American public deserves and expects an OIG that is able to conduct rigorous oversight of the Department’s activities. Unfortunately, our ability to conduct that oversight is being undercut every day that goes by without a resolution of this dispute.

At some point, Congress is going to have to decide whether it will use the power of the purse — as they have authorized by statute — to force DEA and FBI to meet the same standards of disclosure that mere citizens would be required if DEA and FBI were investigating them.

Until then, we should just assume FBI and DEA are breaking the law.

FBI’s Cell Phone Investigative Kiosk Would Allow Fourth Amendment Violations

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Jim Comey wants to sacrifice individual security to ensure the FBI can access cell phones easily.

But in an audit of a forensic lab in Philadelphia, DOJ’s Inspector General found that the FBI is not keeping adequate control of the kiosks that FBI uses to do initial reviews of data on cell phones.

As the report describes, cell phone kiosks serve as a “preview” tool of the contents of the data stored on a phone.

Cell Phone Investigative Kiosks (Kiosks) are available at select FBI field offices and RCFLs. A Kiosk is a preview tool that allows users to quickly and easily view data stored on a cell phone, extract the data to use as evidence, put it into a report, and copy the report to an electronic storage device such as a compact disk. Kiosks are not designed to take the place of full-scale cell phone examinations performed by certified Forensic Examiners; however, the evidence produced by a Kiosk is admissible in a court of law. Kiosk users are required to take a one-time hour-long training course and be familiar with computers. In addition, FBI policy requires Kiosk users to confirm they possess the proper legal authority for the search of data on cell phones or loose media.

The FBI only recently started tracking who had access to these kiosks. And when DOJ IG audited this office’s use of the kiosk, it found that 27% of the people who were accessing it hadn’t filled out the requisite paperwork to ensure only appropriate people used it.

We found that the PHRCFL did not have adequate controls over the access and use of its Kiosks. FBI policy requires Kiosk users to confirm they possess the proper legal authority for the search of data on cell phones or loose media. During our fieldwork, the FBI did not provide any information to show that PHRCFL Kiosk users were required to sign-in, identify the case related to the evidence being examined, or, as required by FBI policy, confirm that they possessed the proper legal authority to search for evidence on the cell phone. In addition, the FBI did not provide us with any information regarding controls in place at the PHRCFL to ensure that users do not use the Kiosks for non-law enforcement matters.

[snip]

we conducted limited testing of 25 visits during FYs 2012 through 2014 to verify compliance with the procedures in place. When the PHRCFL began using the Acknowledgment Form in May 2012, its visitor’s log contained a field for the purpose of each visitor’s visit. We selected names from the visitor’s log whose stated purpose for the visit was Kiosk usage and compared those names and dates to the corresponding Acknowledgment Forms. For the 17 visits we selected between May 2012 and January 2013, we found that approximately 24 percent of the PHRCFL Kiosk-related visitor log entries did not have corresponding Acknowledgment Forms.

[snip]

We believe that although the Kiosks are an efficient tool for law enforcement officers to use to examine digital evidence that may not require the extensive examination of a certified Forensic Examiner, Kiosks are vulnerable to potentially serious abuse. For example, without proper controls, it is possible that a Kiosk user could use this tool to view private cell phone information for non-law enforcement purposes. It also is possible for a user to use a Kiosk without proper legal authority, thereby engaging in a Fourth Amendment violation.

Later in the report, the IG noted that none of the centralized databases tracking other uses of the forensic office track use of the kiosk. That, combined with the paperwork failures, would sure permit FBI to do a whole lot of illegal cell phone searching that would not be tracked.

Which might explain why the numbers FBI shows for searching cell phones don’t actually match Director Comey’s stated concerns about iPhone encrypting its phone.