Where Does the Bulk Collection Under NSLs Happen?

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Back in January, I noted that both the President’s Review Group and those behind the Leahy-Sensenbrenner USA Freedom Act seemed very concerned that the government is using NSLs to conduct bulk collection (which is the term I used, based off the fact that both made parallel changes to Section 215 and NSL collection). Both required (recommended, in the case of PRG) that the government fix that by requiring that NSL’s including language asserting that the particular information sought has a tie to the investigation in question, and some limits on the amount of information collected.

Here’s how the PRG phrased it.

Recommendation 2 We recommend that statutes that authorize the issuance of National Security Letters should be amended to permit the issuance of National Security Letters only upon a judicial finding that:

(1) the government has reasonable grounds to believe that the particular information sought is relevant to an authorized investigation intended to protect “against international terrorism or clandestine intelligence activities” and

(2) like a subpoena, the order is reasonable in focus, scope, and breadth.

The thing is, because NSLs haven’t shown up in any troves of leaked documents, we don’t know why USA Freedom original backers and PRG are so concerned NSLs today collect data beyond reasonable breadth (though IG reports done years ago raised big concerns, many of them about whether FBI was meeting the legal standards required).

We don’t know what kind of bulk collection they’re engaging in.

Because FBI — not NSA — primarily uses NSLs, we don’t know what the problem is.

I raise this now because — in addition to having planned on writing this post since January — of questions about whether the HjC HJC and HPSCI “reform” bills will really end what you and I (as distinct from the Intelligence Community) would consider bulk collection.

And NSL reporting — unlike that for Section 215 — provides some hints on where the bulk collection might be.

Here’s what the most recent FISA report to Congress says about (most) NSLs issued last year.

Requests Made for Certain Information Concerning Different United States Persons Pursuant to National Security Letter Authorities During Calendar Year 2013 (USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177 (2006))

Pursuant to Section 118 of the USA PATRIOT Improvement and Reauthorization Act, Pub. L. 109-177 (2006), the Department of Justice provides Congress with annual reports regarding requests made by the Federal Bureau of Investigation (FBI) pursuant to the National Security Letter (NSL) authorities provided in 12 U.S.C. § 3414, 15 U.S.C. § 1681u, 15 U.S.C. § 1681v, 18 U.S.C § 2709, and 50 U.S.C. § 436.

In 2013, the FBI made 14,219 requests (excluding requests for subscriber information only) for information concerning United States persons. These sought information pertaining to 5,334 different United States persons.2

2 In the course of compiling its National Security Letter statistics, the FBI may over-report the number of United States persons about whom it obtained information using National Security Letters. For example, NSLs that are issued concerning the same U.S. person and that include different spellings of the U.S. person’s name would be counted as separate U.S. persons, and NSLs issued under two different types of NSL authorities concerning the same U.S. person would be counted as two U.S. persons.

The report would seem to say that the 14,219 requests were based off requests about 5,334 US persons. That’s not really bulk collection, at least on its face! So where is the bulk collection PRG and USAF seem worried about?

It’s possible this report hides some bulk collection in a different Agency. The law requiring this report only requires DOJ to report on the number of requests DOJ made in the previous year.

 In April of each year, the Attorney General shall submit to Congress an aggregate report setting forth with respect to the preceding year the total number of requests made by the Department of Justice for information concerning different United States persons under–

(A) section 2709 of title 18, United States Code (to access certain communication service provider records), excluding the number of requests for subscriber information;

[the law goes on to list the other NSL provisions]

While DOJ’s report should cover both FBI and DEA, I suppose it’s possible that some other entities — not just NSA but also Treasury, NCTC, and CIA — are submitting NSLs themselves, particularly in the case of financial records (though I think Treasury doesn’t have to use NSLs to do this).

The other obvious place the language of the report hides bulk collection is in subscriber records. The law exempts subscriber information requests from the reporting pertaining to US persons. The FBI could be applying for what amount to phone books of all the subscribers of all the phone companies and Internet service providers in the United States and it wouldn’t show up in this report, even though those requests might pertain to hundreds of millions of US persons.

I assume to some extent it is doing this, because there must be a reason subscriber records were excluded from this law. And this would count as bulk collection even according to the Intelligence Community definition of the term.

Via the PRG, we can get a sense of how many such subscriber requests there are. It says FBI issued 21,000 NSLs in FY 2012.

FBI issued 21,000 NSLs in Fiscal Year 2012, primarily for subscriber information.

While the reporting period is different, DOJ reported that FBI obtained 15,229 NSLs in 2012. Which means the balance — so around 5,500 NSLs — would be for subscriber data. Even if only a significant fraction of those are for all of companies’ subscribers, that’s still a fairly comprehensive list of subscriber information across a broad range of providers.

Those 5,500 requests could each be 50 US persons or 120 million US persons; we don’t know. That would be pretty significant bulk collection. But not the same kind of privacy risk PRG seems to have in mind (and if that were the only problem, why change all 4 NSL statutes, as USA Freedom Act did and to the extent it makes a difference still does)?

Still, we know that even the other NSLs — the ones for which we have real data about how many US persons the NSLs “pertained to” — affected far more US persons. That’s because the Exigent Letters IG Report made it clear that two providers (one of these is AT&T, which did it routinely; see page 75ff) provided community of interest information — multiple hops of call records — in response to NSLs. In discovering that, DOJ’s IG complained that FBI was routinely getting information — the derivative call records — that it had not done a relevancy determination for, but it didn’t object across the board.

That concern about ensuring that records obtained via a national security request are “relevant” according to the plain meaning of the term sure seems quaint right now, doesn’t it?

But the potential that FBI is using NSLs to obtain derivative records off of the original selector would sure explain why PRG and Pat Leahy and others are concerned about NSLs (and what we would call — but IC wouldn’t — “bulk collection”).

I assume they can only do this with complicit providers (and I suspect this explains the rise of Section 215 orders with attached minimization requirements in recent years).

But if it happens in significant number at all, it would explain why Leahy and PRG consider it an equivalent problem to Section 215. Because it would mean FBI was using NSLs — not just with telecom and Internet records, but possibly with other things (though I don’t see how you could do this on credit reports) — to get data on associations several levels removed from the target of the NSL.

Here’s the immediate takeaway, though.

Aside from the phone book application (which is significant and I think would be curtailed given the HJC bill, unless FBI were to make requests of AT&T using “AT&T” as the selection term) and financial records (which I’m still thinking through), NSLs appear to include a great deal of “bulk” collection (that is, collection of innocent persons’ data based on association). But they appear to do so from specific identifiers.

And that will not be curtailed by the HJC bill, not at all. It is clear these requests for NSLs are already currently based off selectors — it shows in this reporting.

So at least for two uses of NSLs — credit reports and call details (but not subscriber records) — the House bill simply codifies the status quo.

Update: Here’s the financial records language on NSLs:

Financial institutions, and officers, employees, and agents thereof, shall comply with a request for a customer’s or entity’s financial records made pursuant to this subsection by the Federal Bureau of Investigation when the Director of the Federal Bureau of Investigation (or the Director’s designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director) certifies in writing to the financial institution that such records are sought for foreign counter intelligence  [2] purposes to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States.

It’s clearly intended to work for things that would be a selection term — “customer” or “entity” (which in this context would seem to be different from a customer!) — but I’m not sure it requires that the collection be based off the customer selection term.

Unread Reports as the Big Data Dump? Not Really.

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The very same week the President released his breathless report on Big! Data!, the Washington Post has a story criticizing the sheer number and types of reports Congress requires from the Federal bureaucracy.

It started out with a good idea. Legislators wanted to know more about the bureaucracy working beneath them. So they turned to a tool as old as bureaucracy itself — the interoffice memo. They asked agencies to send in written reports about specific things they were doing.

Then, as happens in government, that good idea was overused until it became a bad one.

[snip]

But as the numbers got bigger, Congress started to lose track. It overwhelmed itself. Today, Congress is not even sure how many of those 4,291 reports are actually turned in. And it does not try to save copies of all the ones that are.

So some agencies cheat and send in nothing. And others waste time and money sending in reports — such as the one on dog and cat fur — that simply disappear into the void.

To support its case, WaPo focuses on one report requiring Customs and Border Patrol to report on how much dog and cat fur products are being shipped into the US, which is probably a needless report (which is also probably why WaPo picked it out of the 4,291 it identified).

And WaPo — a member of the Fourth Estate that purportedly serves as a check on power — comes to this very dangerous conclusion.

The problem is that there is no system to sort the good ones from the useless ones. They all flow in together, which makes it hard for congressional staffers to spot any valuable information hidden in the flood.

First, the press is part of that system! Rather than throwing cat and dog fur, perhaps WaPo could have tried to distinguish those that were critical from those that are questionable and those that are clearly frivolous.

Moreover, it is the height of irresponsibility to absolve Congressional staffers — whose bosses are the only ones that can eliminate useless reports — of responsibility for reading the reports they get. Either the staffers must be held accountable for reading the reports, or for eliminating them. That’s how you fix the system. That’s why we’re paying them.

Ultimately, too, I’m not sure I buy the WaPo’s argument that these are useless reports. 4,291 seems like a not unreasonable amount of data for legislators to receive and read about the world’s biggest (perhaps now second biggest) economy, about DOD’s $526 billion budget, about the many federal benefit programs, about the expanding police state.

And if you look at the actual list (rather than WaPo’s admittedly snazzy but not very informative infographic on them), many — perhaps even most — of the reports make a lot of sense.

Consider the reports listed for General Services Administration, an entity with an annual budget of $26 billion, which has the ability to effect great change as the source of enormous spending, and one that has routinely experienced significant spending scandals.

  1. Activities and status of advisory committees in existence during the previous calendar year
  2. A report on the status of the high-performance green building initiatives under this subtitle
  3. Administration’s alternative fueled vehicle program
  4. A description of lost opportunities for waste-heat recovery from the project described in paragraph (A)
  5. A report on the use of photovoltaic energy in public buildings
  6. Violations by Federal agencies of Federal Records Act of 1950, as codified 1950
  7. Reports by Inspector General of particularly serious or flagrant problems, abuses, or deficiencies in the administration of programs and operations of the agency
  8. Activities of the Inspector General
  9. Accessibility to public buildings by the physically handicapped
  10. Prospectus proposing a building project or lease
  11. Location, space, cost, and status of each public building, the construction, alteration, or acquisition of which is to be under authority of the Act, and which was uncompleted as of the date requested
  12. Building project surveys as requested by either the Senate or House
  13. Use of underutilized public buildings and property for facilities to assist the homeless
  14. Summary of excess property disposal reports
  15. Evaluation of the operation of programs for donation of Federal surplus personal property; excess personal property transferred
  16. Excessive stocking of property, above reasonable inventory levels, by executive agencies
  17. Administration of the Federal Property and Administrative Services Act of 1949
  18. Contracts to facilitate the national defense entered into, amended, or modified
  19. Acquisition cost of surplus real or related personal property conveyed for care or rehabilitation of criminal offenders during previous fiscal year
  20. Results of investigations of the cost of travel and the operation of privately owned vehicles to Federal employees while engaged in official business
  21. Annual determination of the average actual cost per mile for the use of a privately owned motorcycle, automobile, and airplane
  22. A plan to comply with Section 432 relating to energy and water conservation at General Services Administration facilities

Reports 1, 6, 7, 8, 10, 11, 12, 17, and 18 are simply reports Congress needs to ask for to ensure there’s some visibility into the Agency, to ensure they’ll be informed if GSA finds something wrong itself. Reports 2, 3, 4, 5, 9, 13, 14, 19, and 22 measure the efficacy of efforts to use GSA’s buying power to do some social good  (and report 9, on ADA accessibility, involves significant legal compliance).  Reports 15 and 16 address an area susceptible to graft.  Reports 20 and 21 are not only key to cost-benefit analysis of how Federal employees travel, but they apparently are tied to one of GSA’s most requested links. Some of these are also reports tied to an action, like buying a building. And all that amounts to less than 1 report for every $ billion American taxpayers give to GSA. If anything, there are a few more reports — that might identify obviously politicized or excessive spending, which is a persistent problem with GSA — that are missing.

Admittedly, that’s just one random agency. But aside from some entities the Federal government runs itself (like American Samoa and DC) as well as some Commissions over which there have been political fights in the past I’m not seeing a whole lot of waste here — though there may be some inefficiency in how the information is requested. I might grant that in the era of big data we need to automate this — in effect, give Congress a better way to Big! Data! the bureaucracies it oversees (though that would be awfully susceptible to abuse), but I don’t see a lot of information that shouldn’t be required from the bureaucracy.

I’m reminded how, 2 years ago, James Clapper claimed ODNI had to produce too many reports and should be permitted to eliminate 30 of them. He tried to get rid of the annual report on how many people have security clearance (one of the few ways we can measure the ballooning secret government). He tried to get rid of reports on Department of Homeland Security’s notoriously useless intelligence agency. He tried to eliminate reports on Chinese spying on the US and nuclear lab security, both persistent security issues. He tried to eliminate a report informing Congress what the privacy staffs of intelligence agencies are doing. In short, in the guise of onerous reporting, he tried to eliminate crucial oversight  (as well as a paper trail that could be FOIAed) on several areas of great public concern.

Or consider this: DOD cannot pass an audit. The biggest military in the world still is not required to account for the money it spends, both to itself and Congress.

And yet a newspaper is saying we require too much reporting from the great big bureaucracy?

I don’t buy it.

The Associations behind FBI’s No Fly Informant Coercion

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Before I disappeared on my trip last week, the WaPo and others reported on a new suit against the FBI for using the No Fly list to coerce Muslims to become informants, one of whom, Naveed Shinwari, talked about it with Democracy Now as well.

WaPo included a quote from a former senior FBI official dismissing the notion that someone might be added to the No Fly lists to coerce them to inform.

A former senior FBI official said that there are criteria for putting people on the list and that refusing to work as a confidential informant is not one of them.

“That’s not a reason,” the former official said. “It has nothing to do with potential threats to aviation.”

That is, FSFBIO claims there are criteria that must be met before placing someone on the No Fly list.

Let’s take the FSFBIO at his (or her) word, and imagine that the FBI singled out the four plaintiffs in this suit for some reason, and only then used the No Fly status as leverage to try to coerce an informant. Because the sort of things that appear to have gotten the FBI interested in these plaintiffs is just as telling as that, after learning the men weren’t threats, the FBI then tried to use their No Fly status to flip them.

At least according to the complaint, the FBI seems to have focused on these men because of who they knew or what they may have done online.

Naveed Shinwari

Naveed Shinwari, whom Amy Goodman interviewed above, was first questioned in Dubai on his way back from his wedding in Afghanistan in February 2012. At that point, they asked general questions about his trip to Afghanistan, including whether he had visited any training camps on his trip.

But a month later, the FBI asked about videos he had watched online.

Agents Dun and Langenberg began the meeting by asking Mr. Shinwari to think about the reasons why he may have been placed on a watch list. Mr. Shinwari said that he did not know. The agents then asked Mr. Shinwari about videos of religious sermons that he had watched on the internet. Mr. Shinwari responded that he watched the videos to educate himself about his faith.

Last December though, in response to Shinwari’s second TRIP complaint (DHS’ ineffective recourse process), DHS suggested the whole thing had been a mistake.

The letter stated, in part, that Mr. Shinwari’s experience “was most likely caused by a misidentification against a government record or by random selection,” and that the United States government had “made updates” to its records.

Since then, Shinwari has flown domestically once, but says he has become reluctant to share his religious and political views with others.

Awais Sajjad

Like Shinwari, Awais Sajjad may have first come to attention of FBI because of a trip to a wedding — that of his brother — in Pakistan.

He was first prevented from flying when trying to visit his father and grandmother in Pakistan in September 2012. In that interrogation, he was asked about his friends in the US. But in a follow-up interrogation a month later, the FBI asked for specifics about a trip he had made the previous year.

Once inside Mr. Sajjad’s home, the agents asked Mr. Sajjad many questions, including questions about his last trip to Pakistan in 2011, why he went and which cities he visited on that trip. Mr. Sajjad replied that he went to Pakistan to attend his brother’s wedding.

But then, as part of the same interrogation, they asked if he watched bomb-making videos on YouTube.

On the way, they asked Sajjad whether he had watched bomb-making videos on YouTube, to which he replied that he had not, that he only watches movies and music videos.

More recently, in an interview without the presence of his counsel, the FBI asked what Sajjad would do if his family members were involved in a terrorist attack.

They asked him hypothetical questions regarding what he would do if he were to find out that any of his relatives or friends were involved in a terrorist attack.

At that same interview, however, one of the FBI Agents told Sajjad he was not a threat to America.

Agent John Doe #13 told Mr. Sajjad that he had been watching Mr. Sajjad for the last two years and knew that Mr. Sajjad did not do anything wrong and was not a “terrorist” or a threat to America.

As far as Sajjad knows, he remains on the No Fly list.

Muhammad Tanvir

The FBI first approached Muhammad Tanvir back in 2007, when out of the blue they came to his workplace to interview him. At that very first interview, they asked about “an old acquaintance” who apparently had tried to enter the US illegally.

They asked him about an old acquaintance whom the FBI agents believed had attempted to enter the United States illegally.

Then, as he returned from a 2008 trip to visit his wife in Pakistan, agents (possibly DHS) interrogated him for 5 hours and confiscated his passport. Just before he was supposed to go back to DHS to get it back, the FBI showed up to his workplace again. This time, they asked questions about Taliban training camps, but also his rappelling skills.(!)

The FBI agents asked Mr. Tanvir about terrorist training camps near the village where he was raised, and whether he had any Taliban training. The agents also referred to the fact that at his previous job as a construction worker, Tanvir would rappel from higher floors while other workers would cheer him on. They asked him where he learned how to climb ropes. Mr. Tanvir responded that he never attended any training camps and did not know the whereabouts of any such camps. He also explained to the FBI agents that he grew up in a rural area, where he regularly climbed trees and developed rope-climbing skills.

Immediately after that interview, DHS returned Tanvir’s passport, saying he had been cleared. But he was prevented from flying after that point — in 2010 domestically,and twice in 2011 and once in 2012 to Pakistan — because he had gotten placed on the No Fly List. All that time, the FBI continued to pressure him to inform.

Read more →

ISI Goes After Geo’s Broadcast License in Response to Accusations on Mir’s Shooting

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On Saturday, Hamid Mir, the most popular news anchor on Geo, Pakistan’s largest television news outlet, survived an assassination attempt. He remains hospitalized with at least six bullet wounds. Controversy has swirled since the attack, with Mir’s brother Amir Mir, also a journalist, accusing Pakistan’s ISI of being behind the attack. ISI has responded by approaching the broadcast regulatory authority in Pakistan, demanding that Geo’s license be revoked.

The Committee to Protect Journalists has denounced the move by the ISI:

The Committee to Protect Journalists is greatly concerned by actions brought by Pakistan’s Inter Services Intelligence Directorate (ISI) against Geo Television today. In its complaint to the Pakistan Electronic Media Regulatory Authority, the ISI accused Geo’s parent company, the Independent Media Corporation, of conducting a “false and scandalous campaign undermining the integrity and tarnishing the image of state institution (ISI) and its officers.”

The media regulator has the authority to shut down broadcasters based on such complaints, and has done so under previous administrations of Pakistan.

“We call on the Pakistan Electronic Media Regulatory Authority not to act on this spurious complaint, and we call on Pakistan’s security services to recognize the critical role of the media and exercise tolerance and maturity,” said Bob Dietz, CPJ’s Asia program coordinator. “The ISI is free to rebut allegations in the media but should not try to censor coverage.”

Declan Walsh covered the move by the ISI in the New York Times on Tuesday:

Mr. Mir survived the attack and is being treated for gunshot wounds to the chest and shoulder. But as he was still receiving emergency treatment, Geo prominently broadcast heated accusations from Mr. Mir’s brother, the journalist Amir Mir, who accused the ISI of being responsible for the attack.

During extended commentary, Geo also repeatedly broadcast a photograph of the ISI chief, Lt. Gen. Zahir ul-Islam, while a senior journalist employed by the station called for the general to resign.

Hamid Mir, whose pugnacious style has frequently stirred up controversy, has been a fierce critic of the military, and in February he privately told station managers that he had received a threat from ISI operatives about his work, according to the station. In November 2012, a bomb was found strapped to the underside of his car outside his home in Islamabad.

/snip/

On Tuesday, evidently, the generals decided they had had enough criticism.

In a four-page letter to the state-run Pakistan Electronic Media Regulatory Authority, the Defense Ministry not only asked for Geo’s broadcasting license to be revoked, but called for the body to initiate criminal proceedings against Geo editors and management.

This had to be a difficult story for Walsh to cover, considering that he was mysteriously kicked out of Pakistan last May, just as elections were taking place. Walsh also this morning tweeted a link to an article in the Guardian that contains an explosive quote from the president of Geo News:

Geo’s president – a former newspaper editor named Imran Aslam – became wistful when defending his channel’s coverage after the assassination attempt on Mir. “There was a time that if they didn’t like what you wrote they censored you. They cut out a word or a line. If they got really angry they got your editor fired. Now they just shoot you.” A bullet in the head is the new form of censorship in Pakistan.

Interestingly, just after the bomb was defused on Mir’s car in November of 2012, coverage suggested that it may have been planted by the TTP, especially since Mir had been covering the TTP’s shooting of Malala Yousafzai. In an AP story carried in the Washington Post, we have this on Mir’s more recent reporting:

In recent weeks, Mir’s show gave prominent coverage to a group campaigning against the disappearances and torture of insurgents and their supporters in southwestern Baluchistan province — allegedly at the hands of ISI.

Geo is reporting that Hamid Mir is expected to make a public statement later today. I will keep an eye out for it.

Update: The Express Tribune just posted on Mir’s statement:

In a statement read out by his brother on Thursday, senior journalist Hamid Mir said that he faced threats from both state and non-state actors, Geo News reported.

On Saturday, April 21, unknown assailants shot at Mir in Karachi, critically injuring him.

Through his first official statement since the attack, Mir claimed that he had recently been approached by intelligence officers who informed him that he was on a hit-list.

He said he is making this statement despite the pressure he is facing from various quarters.

The ISI was upset with me for my coverage of Mama Qadir’s Long March, he added.

I forwarded the numbers from which I received death threats to the police, the statements reads, but the police did not do anything about it.

RuppRoge Fake Dragnet Fix Requires Intel Community to Update 30 Year Old EO 12333 Procedures

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One good aspect of the RuppRoge Fake Dragnet Fix is its measure requiring all elements of the Intelligence Community to comply with the EO that governs them.

At issue is this clause in EO 12333 requiring that any element of the Intelligence Community collecting data on US persons have Attorney General approved procedures for handling that data.

2.3 Collection of information. Elements of 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 Intelligence Community element concerned or by the head of a department containing such element and approved by the Attorney General, consistent with the authorities provided by Part 1 of this Order, after consultation with the Director.

This is something PCLOB asked Eric Holder and James Clapper to make sure got done back in August. In their letter, they disclosed some agencies in the IC have been stalling on these updates almost 3 decades.

The Privacy and Civil Liberties Oversight Board just sent a letter to Eric Holder and James Clapper requesting that they have all the Intelligence Committee agencies update what are minimization procedures (though the letter doesn’t call them that), “to take into account new developments including technological developments.”

As you know, Executive Order 12333 establishes the overall framework for the conduct of intelligence activities by U.S. intelligence agencies. Under section 2.3 of the Executive Order, intelligence agencies can only collect, retain, and disseminate information about U.S. persons if the information fits within one of the enumerated categories under the Order and if it is permitted under that agency’s implementing guidelines approved by the Attorney General after consultation with the Director of National Intelligence.

The Privacy and Civil Liberties Oversight Board has learned that key procedures that form the guidelines to protect “information concerning United States person” have not comprehensively been updated, in some cases in almost three decades, despite dramatic changes in information use and technology. [my update]

In other words, these procedures haven’t been updated, in some cases, since not long after Ronald Reagan issued this EO in 1981.

RuppRoge aims to require the IC elements to comply.

(1) REQUIREMENT FOR IMMEDIATE REVIEW.–Each head of an element of the intelligence community that has not obtained the approval of the Attorney General for the procedures, in their entirety, required by section 2.3 of Executive Order 12333 (50 U.S.C. 3001 note) within 5 years prior to the data of the enactment of the End Bulk Collection Act of 2014, shall initiate, not later than 180 days after such enactment, a review of the procedures for such element.

Mind you, asking agencies to initiate a review 6 months after passage of a bill to update procedures that are 30 years old isn’t exactly lighting a fire under IC arse. But then, the delay probably stems from some agencies hoarding agency records on US persons that are even older than the EO.

CIA Hacks Its Overseers

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In January, Ron Wyden and Mark Udall suggested that CIA was hacking into US computers.

Wyden asked (43;04) John Brennan whether the federal Computer Fraud and Abuse Act applied to the CIA.

Wyden: Does the federal Computer Fraud and Abuse Act apply to the CIA?

Brennan: I would have to look into what that act actually calls for and its applicability to CIA’s authorities. I’ll be happy to get back to you, Senator, on that.

Wyden: How long would that take?

Brennan: I’ll be happy to get back to you as soon as possible but certainly no longer than–

Wyden: A week?

Brennan: I think that I could get that back to you, yes.

Minutes later, Mark Udall raised EO 12333′s limits on CIA’s spying domestically (48:30).

Udall: I want to be able to reassure the American people that the CIA and the Director understand the limits of its authorities. We are all aware of Executive Order 12333. That order prohibits the CIA from engaging in domestic spying and searches of US citizens within our borders. Can you assure the Committee that the CIA does not conduct such domestic spying and searches?

Brennan: I can assure the Committee that the CIA follows the letter and spirit of the law in terms of what CIA’s authorities are, in terms of its responsibilities to collect intelligence that will keep this country safe. Yes Senator, I do.

It appears the target of this hacking was the Senate Intelligence Committee itself.

The CIA Inspector General’s Office has asked the Justice Department to investigate allegations of malfeasance at the spy agency in connection with a yet-to-be released Senate Intelligence Committee report into the CIA’s secret detention and interrogation program, McClatchy has learned.

The criminal referral may be related to what several knowledgeable people said was CIA monitoring of computers used by Senate aides to prepare the study. The monitoring may have violated an agreement between the committee and the agency.

[snip]

The committee determined earlier this year that the CIA monitored computers – in possible violation of an agreement against doing so – that the agency had provided to intelligence committee staff in a secure room at CIA headquarters that the agency insisted they use to review millions of pages of top-secret reports, cables and other documents, according to people with knowledge.

Sen. Ron Wyden, D-Oregon, a panel member, apparently was referring to the monitoring when he asked CIA Director John Brennan at a Jan. 9 hearing if provisions of the Federal Computer Fraud and Abuse Act “apply to the CIA? Seems to me that’s a yes or no answer.”

NYT adds that CIA started spying on SSCI after learning it had accessed documents they didn’t want them to.

The action, which Mr. Udall did not describe, took place after C.I.A. officials came to suspect that congressional staff members had gained unauthorized access to agency documents during the course of the Intelligence Committee’s years-long investigation into the detention and interrogation program.

This is effectively the same treatment the CIA extends to Gitmo lawyers and defendants, where it spies to see what they’re saying about its torture methods.

But I bet it will be treated with more seriousness.

Of Neo-Fascists and Smiley-Face Neoliberals

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Back before February 4, weeks before the most violent crackdown that killed protestors that led to Viktor Yanukovych’s ouster, Assistant Secretary of State Victoria Nuland and US Ambassador to Ukraine had a conversation about how to divvy up power between 3 opposition figures in a post-Yanukovych Ukraine. Nuland deemed “Yats” the necessary post-Yanukovych leader.

Nuland: [Breaks in] I think Yats is the guy who’s got the economic experience, the governing experience. He’s the… what he needs is Klitsch and Tyahnybok on the outside. He needs to be talking to them four times a week, you know. I just think Klitsch going in… he’s going to be at that level working for Yatseniuk, it’s just not going to work.

Pyatt: Yeah, no, I think that’s right. OK. Good. Do you want us to set up a call with him as the next step?

Thursday, Yatseniuk was appointed Prime Minister. (Update: See this Forbes piece on Yatseniuk.)

On Monday, Mark Ames wrote a piece explaining why “Everything You Know about Ukraine Is Wrong.” In it, he treated claims about two main groups involved in Ukraine’s uprising: the general protestors, and the far right.

Of the general protestors, he says,

In fact, the people who are protesting or supporting the protesters are first and foremost sick of their shitty lives in a shitty country they want to make better—a country where their fates are controlled by a tiny handful of nihilistic oligarchs and Kremlin overlords, and their political frontmen. It’s first and foremost a desire to gain some control over their fate.

Of the far right, he says,

They’re definitely real, they’re a powerful minority in the anti-Yanukovych campaign—I’d say the neo-fascsists from Svoboda and Pravy Sektor are probably the vanguard of the movement, the ones who pushed it harder than anyone. Anyone who ignores the role of the neo-fascists (or ultranationalists, take your pick) is lying or ignorant, just as anyone who claims that Yanukovych answered only to Putin doesn’t know what they’re talking about. The front-center role of Svoboda and the neo-fascists in this revolution as opposed to the Orange Revolution is, I think, due to fact that the more smiley-face/respectable neoliberal politicians can’t rally the same fanatical support they did a decade ago. [my emphasis]

I generally agree with this: there is abundant reason for protestors, of their own accord and with full agency, to want to change the status quo. And that’s what has been going on for months. A big change to the status quo going forward is probably not going to happen, because the existing offerings on all sides are all pretty crummy. And there is a concerning faction — the loud violent one, which therefore played an outsized role in Yanukovych’s ouster — that espouses troubling far-right politics.

Sunday, partly because of real legal questions about Yanukovych’s ouster, partly because some of the tactics we’re seeing in Ukraine seem to have ties to those we saw in Syria, and partly because of a 20-month old twitter conversation with Adam Colligan involving Paraguay laid out here, I tweeted, “There’s quite a bit of evidence of coup-ness. Q is how many levels deep interference from both sides is,” though I said we don’t really know what went on yet. Later in the conversation I suggested this part of the invitation for all parties to sow instability arose because American power is waning. “Of course, part of it is just that Pax America is spinning out, trying to sustain itself.”

As Colligan laid out, our conversation existed in the context of a long-ago conversation we had about the potential role of parliaments in “coups.” Nowhere did I get into specifics about who I believed to behind any coup (though later I suggested John Brennan might one day rival Allen Dulles for the number of coups he pulls off; I actually think he might instead rival him for coups attempted, not coups successfully pulled off). But in any case, we were talking about very recent events — still in the last week, which is part of the reason I said we probably don’t know everything there is to know yet, in the context of violence that led to Yanukovych’s ouster.

Ames took that one tweet — “There’s quite a bit of evidence of coup-ness. Q is how many levels deep interference from both sides is” — and my reference to Pax Americana and used it as a hook for this piece. Here’s how he uses those tweets:

Marcy Wheeler, who is the new site’s “senior policy analyst,” speculated that the Ukraine revolution was likely a “coup” engineered by “deep” forces on behalf of “Pax Americana”:

“There’s quite a bit of evidence of coup-ness. Q is how many levels deep interference from both sides is.”

These are serious claims. So serious that I decided to investigate them. And what I found was shocking.

Wheeler is partly correct. Pando has confirmed that the American government – in the form of the US Agency for International Development (USAID) – played a major role in funding opposition groups prior to the revolution. Moreover, a large percentage of the rest of the funding to those same groups came from a US billionaire who has previously worked closely with US government agencies to further his own business interests. This was by no means a US-backed “coup,” but clear evidence shows that US investment was a force multiplier for many of the groups involved in overthrowing Yanukovych.

But that’s not the shocking part.

What’s shocking is the name of the billionaire who co-invested with the US government (or as Wheeler put it: the “dark deep force” acting on behalf of “Pax Americana”).

Step out of the shadows…. Wheeler’s boss, Pierre Omidyar.

Yes, in the annals of independent media, this might be the strangest twist ever: According to financial disclosures and reports seen by Pando, the founder and publisher of Glenn Greenwald’s government-bashing blog,“The Intercept,” co-invested with the US government to help fund regime change in Ukraine.

Now, Ames apparently couldn’t even cut and paste competently because he added “force” inside quotation marks attributed to me, and in the original reference used “dark” instead of “deep,” all of which played a key rhetorical role in giving his claims their “dark deep” tinge. (In several tweets, Ames’ editor Paul Carr assured me he thought Ames’ citations of me were fair.)

Cue Hollywood villain music: Bum bum bum!

But let’s look at what Pando claims it has proven: It claims it has presented (1) clear evidence that (2) US (and Omidyar’s) investment was a “force multiplier” (3) for “many” of the groups “involved” in overthrowing Yanukovych. It also says Omidyar (4) “co-invested with the US government” (5) “to fund regime change.”

Read more →

DHS Fear-Mongers Off Apparent Diminishment in Ibrahim al-Asiri’s Skills

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The Department of Homeland Security wants you to be afraid of the latest handiwork of AQAP’s bomb-maker, Ibrahim al-Asiri. They’ve issued a warning (and leaked that warning) about new-and-improved shoe bombs.

Senior U.S. officials say that Wednesday’s terror warning about international air travel, first reported by NBC News, is the result of recent chatter about Ibrahim al-Asiri, the al Qaeda bombmaker from Yemen responsible for several high-profile bombing attempts against U.S. targets.

On Wednesday, the Department of Homeland Security warned airlines of new information related to the possibility of bombs or bomb material hidden in shoes, like the device that shoe bomber Richard Reid used to try to take down a plane over the Atlantic in December 2001.

Now, perhaps this is a grave new worry.

But the first thing I thought of when I heard about this warning was the warning DHS issued two years ago, 10 days after they had flown the Saudi-British infiltrator into AQAP out of Yemen with the undiebomb he was allegedly given to use against a US-bound flight.

DIANE SAWYER (ABC NEWS)

(Off-camera) Good evening. As we come on the air, ABC News has learned that US authorities are studying a new terror threat tonight, members of al Qaeda using body bombs, explosives that have been surgically implanted in their bodies to evade security. Tomorrow, it will be the one-year anniversary of Osama bin Laden’s death, making this week a time of heightened concern on the ground and in the sky. And ABC’s chief investigative correspondent Brian Ross is here with these new details. Brian?

BRIAN ROSS (ABC NEWS)

(Off-camera) Diane, well, tonight American and European authorities tell ABC News, they fear al Qaeda will use these so-called body bombs to target Americans overseas and US flights coming in from overseas.

GRAPHICS: SECURITY WATCH

BRIAN ROSS (ABC NEWS)

(Voiceover) As a result, security at several airports in the United Kingdom and elsewhere in Europe and the middle ease has been substantially stepped up, with a focus on US carriers. And additional federal air marshals have been shifted overseas in advance of this week’s anniversary of the bin Laden raid. The plot is not so far fetched. Medical experts say there is plenty of room in the stomach area for surgically implanted explosives.

After that bit of propaganda, I fully expect the White House will roll out a thwarted plot in approximately 8 days. And then, after the initial excitement, we’ll learn the plot (if it was indeed a plot and not a sting) was actually thwarted (if it was indeed a plot and not a sting) back on February 14.

Bonus points: this plot will have been foiled using the phone dragnet.

And aside from the skepticism I have given DHS’ past manipulation of Asiri warnings, there’s one more problem with DHS crying wolf like this.

Two years ago, anonymous leakers from the very same vicinity as this week’s leakers assured us that Asiri had mastered the process of surgically placing operational bombs inside a person’s stomach cavity Virtually undetectable, even with Michael Chertoff’s best boondoggle machines!

And now, with two more years to perfect his craft, DHS claims that Asiri is making … shoe bombs?

Really? Shoe bombs?

We’re supposed to be panicked that Asiri’s skill has apparently regressed from where — these same anonymous leakers claimed — it was two years ago, that Asiri can no longer make undetectable cavity bombs but has instead returned to a ploy Al Qaeda used 12 years ago?

Again, maybe this threat is real. If it is, it’s too damn bad DHS has already squandered its credibility with past inflammatory warnings about Asiri’s skill.

Judge William Martini Endorses Hunting for Terrorists in Muslim Girls Schools

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Picture 41The AP correctly captures the jist of Judge William Martini’s rejection of a lawsuit against the NYPD for spying on Muslims.

The core of his logic is that Adam Goldman and Matt Apuzzo have injured NYC’s Muslim community by providing them proof of the spying targeted at them.

The ruling also singled out The Associated Press, which sparked the suit with a series of stories based on confidential NYPD document showing how the department sought to infiltrate dozens of mosques and Muslim student groups and investigated hundreds in New York and elsewhere.

“Nowhere in the complaint do the plaintiffs allege that they suffered harm prior to the unauthorized release of documents by The Associated Press,” Martini wrote. “This confirms that plaintiffs’ alleged injuries flow from the Associated Press’s unauthorized disclosure of the documents. … The Associated Press covertly obtained the materials and published them without authorization. Thus the injury, if any existed, is not fairly traceable to the city.”

But it doesn’t expose the other part of his shoddy logic clearly enough. Martini said all this spying was cool because it was designed to find Muslim terrorists hiding among Muslims.

The police could not have monitored New Jersey for Muslim terrorist activities without monitoring the Muslim community itself. While this surveillance Program may have had adverse effects upon the Muslim community after the Associated Press published its articles; the motive for the Program was not solely to discriminate against Muslims, but rather to find Muslim terrorists hiding among ordinary, law – abiding Muslims.

As I emphasized here, when it was first reported, NYPD wasn’t hunting for Muslim terrorists in places where the 9/11 terrorists were known to hang out — cheap hotels, gyms, cybercafes, and a bunch of other businesses catering to anonymity rather than Muslims. Rather, the NYPD was hunting terrorists in schools in Newark, including the one above teaching girls in fifth to twelfth grade, and another teaching first through fourth graders.

The NYPD was hunting terrorists in a girls school.

And Judge William Martini thinks that makes a whole bunch of sense.

“Destroy Them Immediately:” William McRaven Adopts the Jose Rodriguez Approach

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Screen Shot 2014-02-10 at 2.32.00 PM

“Destroy them immediately.”

That’s what Admiral William McRaven said 11 days after Judicial Watch FOIAed for pictures of Osama bin Laden’s remains.

As I was the first to note back in June, McRaven ordered that all photos in JSOC’s possession should be purged. According to the IG Report where I first noted that order, he ordered them be sent to CIA (the final IG Report censored that reference). I thought at the time (and still believe) it was an attempt to jurisdictionally sheep dip the pictures, just as the operation had been, to get further protection for the pictures.

It’s only now, after Judicial Watch lost their suit to obtain these photos, that DOD has gotten around to providing this document that makes it clear McRaven ordered the photos not just purged, but “destroyed” after the Judiical Watch request.

It’s all so familiar!