What to Expect When You’re Expecting a Report From James “Least Untruthful” Clapper

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It is a time pregnant with possibilities as the world awaits release of the US report on chemical weapon use in Syria. Today’s Washington Post informs us that we may see the report as soon as tomorrow:

The Obama administration believes that U.S. intelligence has established how Syrian government forces stored, assembled and launched the chemical weapons allegedly used in last week’s attack outside Damascus, according to U.S. officials.

The administration is planning to release evidence, possibly as soon as Thursday, that it will say proves that Syrian President Bashar al-Assad bears responsibility for what U.S. officials have called an “undeniable” chemical attack that killed hundreds on the outskirts of the Syrian capital.

The report, being compiled by the Office of the Director of National Intelligence, is one of the final steps that the administration is taking before President Obama makes a decision on a U.S. military strike against Syria, which now appears all but inevitable.

Wait. What?

Marcy already mused on all the talking heads focusing on how a US response to Assad using chemical weapons on Syrian citizens is all about our “credibility“. If the US response is so tied up with credibility, how on earth can it be that the person charged with compiling the report on which we will base military action is the man whose obituary will be obliged to mention his admission that he lied to Congress, but that we should excuse the lies because he gave the “least untruthful” version possible? That is how the US will convince the world that, unlike when we lied about Iraq having WMD’s before we invaded, this time we aren’t lying about Assad?

Note also that Marcy mentioned yesterday that the US, through John Kerry, tried to prevent the UN carrying out its own investigation into the chemical weapon evidence. That move undercuts US efforts at credibility since outside, independent confirmation of findings would be a huge step in providing assurance that the US is being truthful.

The UN effort continues today, with the delegation of inspectors visiting a different Damascus suburb than the one they visited on Monday. (See the map in this BBC article for the sites at which chemical weapons were accused of being used in the attack.)

We get a bit of information from AP on how the UN team is operating:

The U.N. chemical weapons experts conducted their first field testing in the western Damascus suburb of Moadamiyeh on Monday. They collected samples and testimony after a treacherous journey through government and rebel-held territory. Their convoy was hit by snipers but members of the team were unharmed.

The ability of the UN team to interview victims (which is presumably how they got “testimony”) and then to take their own samples is a key part of making their work believable. Both environmental samples at the sites of attack and biological samples from the victims play a role in identifying whether and what chemical agents were used. See this informative piece from FAS on descriptions of symptoms that the investigators would be looking for when interviewing victims.

When Clapper finally releases the US report, one of the most important aspects in that report will be the provenance of any samples the US subjected to chemical analysis. We don’t have acknowledged “boots on the ground” in Syria, so how did the US get samples? What certifications, if any, are there on chain of custody documentation on those samples? As with most other accounts of the chemical attack, the AP article linked above mentions that Doctors Without Borders has documented the number of dead and injured from the attack. Samples and documentation coming from them would be seen as having a much greater level of independence than samples provided by the rebel groups that control the territory where the attacks are said to have taken place.

Even though their main website has been taken down, reportedly by the Syrian Electronic Army, the New York Times is continuing its reporting on the situation in Syria. An article published yesterday afternoon provides some useful background information on the ability of modern forensic methods to detect chemical agent use long after the fact: Read more →

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Cruise Killing on the Passive Voice

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Before I lay out the chronology of the road to war against Syria, check out the language National Security Advisor Susan Rice used to blow off the UN investigation.

Ms. Rice sent the email to Ms. Power and others, officials said. “The investigation is…too late, and will actually tell us what we already know: CW was used,”

While the WSJ quotes Rice claiming to know who actually used the chemical weapons in the next line, ultimately it comes down to this:

“CW was used.”

Jay Carney today also used the passive voice in dismissing the UN investigation.

So the work of that team is redundant, you might say, because it is clearly established already that chemical weapons have been used on a significant scale.

The fucking passive voice.

But before we got to that point consider what happened. First (according to WSJ’s Arab diplomats) the always trustworthy Israelis caught someone moving CW into place.

One crucial piece of the emerging case came from Israeli spy services, which provided the Central Intelligence Agency with intelligence from inside an elite special Syrian unit that oversees Mr. Assad’s chemical weapons, Arab diplomats said. The intelligence, which the CIA was able to verify, showed that certain types of chemical weapons were moved in advance to the same Damascus suburbs where the attack allegedly took place a week ago, Arab diplomats said.

Then after the attack, according to Foreign Policy, US spooks overheard a Syrian Defense official “demanding answers” from an officer in the chemical weapons unit from which the CW would have been used.

Last Monday [sic], in the hours after a horrific chemical attack east of Damascus, an official at the Syrian Ministry of Defense exchanged panicked phone calls with leader of a chemical weapons unit, demanding answers for a nerve agent strike that killed more than 1,000 people. Those conversations were overheard by U.S. intelligence services, The Cable has learned.

FP goes on to point out a lot of the important things we don’t know, such as why and on whose authority, even while laying out the case that CW was used. (Though here are some doubts about whether it was really sarin.)

Meanwhile, according to Gareth Porter, it took until Saturday for the UN to request access to the attack site. Syria granted that access Sunday. At which point John Kerry attempted to personally intervene to stop the investigation.

After the deal was announced on Sunday, however, Kerry pushed Ban in a phone call to call off the investigation completely.

The Wall Street Journal reported the pressure on Ban without mentioning Kerry by name. It said unnamed “U.S. officials” had told the secretary-general that it was “no longer safe for the inspectors to remain in Syria and that their mission was pointless.”

But Ban, who has generally been regarded as a pliable instrument of U.S. policy, refused to withdraw the U.N. team and instead “stood firm on principle”, the Journal reported. He was said to have ordered the U.N. inspectors to “continue their work”.

Meanwhile, the Administration also seems to be delaying the release of its own intelligence report, after promising it would already be out.

Q And there’s a lot of speculation that this intelligence report that presumably would link Assad directly to the chemical weapons attack might be released today. Can you give us an update on the timing?

MR. CARNEY: What I would say is that yesterday I made clear that the intelligence community is working on an assessment and that once we had that assessment we would provide information to the public about it in the coming days. And that remains true. I think that that’s speculation that it would come today rather than some other day. But it will come and I think you can expect it this week.

Do you get the feeling there are some holes in the intelligence report? Such as, if this was ordered by someone in Assad’s chain of command, why a Defense Ministry official would be making “panicked calls” about the strike?

There’s one more thing I find at least interesting about the intelligence.

Recall back in December, when the CW scares first started. We had evidence — as the Israelis claim we have no — of Syria pre-positioning weapons. And then Syria lost its Toobz access. I noted at the time that the utter lack of panic about the latter event suggested that we knew precisely why and how the Toobz came down. That detail may mean nothing about today’s events (though at the time it suggested that the source of the intelligence wasn’t SIGINT, because if the US had just lost its intelligence access it would have been panicking). But it seems notable, given the centrality of the “moving chemicals” intelligence again.

There is, to be sure, a great deal of evidence that (as both Rice and Carney said) “CW were used.”

But the Administration seems increasingly squirrelly allowing time to discover the rest of the occasion, which may be why a Syrian officer release CW without having had received an order from his superiors.

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Parchin Asphalt: Obstructing Sampling or Sealing the Record?

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With the opportunity for significant progress in negotiating a peaceful settlement regarding Iran’s nuclear activities looking better than it has in a long time, I had intended to ignore the latest bleating over developments at Parchin. The complaints did even make their way into the New York Times earlier in the week, so they probably do deserve a response.

Here is how David Albright and pals frame the latest developments:

Recent commercial satellite imagery of the Parchin site in Iran shows the extent of new paving as well as the extent of other alternations undertaken at the site over the past year and a half starting in February 2012.  Iran appears to be in the final stages of modifying the suspected high explosive test site at the Parchin complex, having recently asphalted large sections of the site.  As noted in several of the International Atomic Energy Agency’s (IAEA’s) quarterly Iran safeguards reports and in numerous ISIS satellite imagery reports on Parchin, asphalting and the other documented activities have significantly changed the site and impacted the ability of IAEA inspectors to collect environmental samples and other evidence that it could use to determine whether nuclear weapons-related activities once took place there.  Asphalting an entire area in this manner would make it very hard to take soil samples and likely be effective at covering up environmental evidence of nuclear weaponization-related experiments.

Throughout this process of cat and mouse games with Iran over their work at the Parchin site, I have maintained that if the work Iran is accused of carrying out there did indeed take place, and if they have attempted clean-up procedures as accused, there still is a reasonable chance that appropriate sampling of the equipment and the area would detect vestiges of the radioactivity that cannot be removed. In addition to the interior of the suspect building and the blast chamber itself likely being made radioactive due to neutron activation throughout the entire thickness of the steel (and thus unable to be scrubbed), satellite imagery has been used to document what appeared to be potential wash water being allowed to run outside the building of main interest. There has been movement of some soil, but the likely deposition site of that soil has been documented in the satellite photos.

Throughout all of this activity, the satellite photos have provided a record from which a team would know the most likely sites to sample if they wish to know how much radioactivity may have been washed out of the building. This latest accusation that paving the site over with asphalt would make sampling harder simply rings hollow. A team that has been allowed access to the site would hardly find a layer of asphalt to be a significant obstruction if they are determined to sample the locations that satellite imagery has told them should be an informative location for sampling.

Paving the area with asphalt actually has the potential to preserve the site for sampling in the future. Although Parchin is in desert with little rainfall, percolation of water through the soil would remain as one the largest factors making sampling less informative over time. Asphalt paving has been used (pdf) to seal areas against movement of radioactivity through soil: Read more →

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Yellowcake In the Soles of His Shoes

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Splash page of alibaba.com, where it would appear that Patrick Campbell became Cassim and was unable to exit with his treasure.

Splash page of alibaba.com, where it would appear that Patrick Campbell became Cassim and was unable to exit with his treasure.

Last night, The Smoking Gun and then CBS reported on the latest sting carried out by our government to keep us safe from people too stupid for their own good. This time, instead of the FBI setting up the security theater sting, it was an undercover agent for ICE, or Immigration and Customs Enforcement within the Department of Homeland Security. The criminal complaint (pdf) filed yesterday is written by an ICE Special Agent working out of Miami (I’ll return later to the ironic job position she holds).

Once again, as we see repeatedly in the government’s adventures in security theater, we appear to have ensared a small-time hustler but will undoubtedly play this up as a major interdiction of international terrorism. The hustler this time is one Patrick Campbell, who stands accused of brokering a deal to sell U3O8 to Iran. Campbell apparently was promising to ship 1000 tons of the processed uranium ore, but was arrested in New York yesterday Wednesday when he entered the country from Sierra Leone, where he reportedly lives.

How was Campbell caught? Here is how the complaint describes the elaborate trap ICE devised:

alibaba ad

 

Yup. Everybody knows that Iran absolutely would go shopping for uranium on alibaba.com. Note that ICE does not appear to be able to get their high-tech document production equipment to produce subscripts. There really is no such thing as Uranium 308 or U308. Writing it that way makes it look like they are referring to a uranium isotope. The naturally occurring isotopes of uranium are listed here, where we see that the atomic masses range from 232 (= U-232) to 238 (=U-238). The isotope of interest is U-235, which occurs in nature as only 0.7% of the uranium atoms. Uranium is mined as raw ore which is chemically treated to produce U3O8, which is otherwise known as yellowcake. For further processing, the yellowcake is then converted to UF6 gas and then put into gas centrifuges where the mixture is selectively enriched for the U-235 isotope. Low-grade enriched uranium has the U-235 enriched from the naturally occurring 0.7% to the range of 3-5%. Iran has also produced mid-grade uranium at 20% U-235 for its research reactor used to produce medical isotopes, but this still falls short of the 90% or so U-235 needed for a nuclear weapon.

It would appear that ICE ran this scam on such a short budget that they wouldn’t even front Campbell the money for travel to the US from Sierra Leone. In his negotiations with the undercover agent, Campbell demonstrated a pitiful level of awareness of operational security. The complaint notes many communications with Campbell by email, telephone and Skype. There is no indication that any of the communications were encrypted. The extent of his op-sec appears to be his brilliant use of an acronym to refer to the transaction:

MEUS

 

Campbell finally made it to New York yesterday Wednesday, where he was promptly arrested. Here is how The Smoking Gun opened their report:

A foreigner who agreed to sell undercover Homeland Security agents 1000 tons of yellowcake uranium for shipment to Iran was arrested yesterday when he flew into the United States with uranium samples hidden inside the soles of shoes in his luggage, The Smoking Gun has learned.

Wow. He tried to hide his yellowcake samples in the soles of his shoes, which he then put into checked baggage.

This whole episode is stupid and wasteful on a wide range of levels.

First, Iran purchased huge stockpiles of yellowcake back in the days of the Shah. Read more →

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Not-So-Trusted Computing: German Government Worried About Windows 8 Risks

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Microsoft’s “trusted computing platform.”

Microsoft’s “secure boot” technology.

The doublespeak almost writes itself these days. Whose “trusted computing”? Whose “platform”? And whose “secure boot”?

At least one government has expressed concerns in internal documents, buttressed by an unusual public statement in response to reports about the leaked documents.

According to German news outlet Die Zeit, internal documents from the Bundesamt fur Sicherheit in der Informationstechnik (Germany’s Federal Office for information Security – BSI) warn that Microsoft Windows 8’s Trusted Computing Platform poses a security risk.

The BSI issued a response, the first paragraph of which acknowledges the news reports; it also refers to an internal paper by the Bundeswirtschaftsministeriums (Germany’s Federal Ministry of Economics and Technology – BMWi) advising caution in using the Trusted Computing Platform. This may not be the first cautionary communication by the BMWi as it is not clear whether the paper referenced by the BSI today is the same internal paper issued on the subject in early 2012.

In the second paragraph, BSI denies it has issued any warning to private or public sector users, though this announcement doesn’t deny a warning might be warranted since government agencies are warning each other internally.

The third paragraph says that the Win 8 TCP (using Trusted Platform Module TPM 2.0) might offer improved security for some groups, though transparency should be offered by the manufacturer.

But the kicker is the fourth paragraph:

“From the BSI’s perspective, the use of Windows 8 combined with TPM 2.0 is accompanied by a loss of control over the operating system and the hardware used. As a result, new risks arise for the user, especially for the federal government and for those providing critical infrastructure. In particular, on hardware running Windows 8 that employs TPM 2.0, unintentional errors of hardware or the operating system, but also errors made by the owner of the IT system, could create conditions that prevent further operation of the system. This can even lead to both the operating system and the hardware employed becoming permanently unusable. Such a situation would not be acceptable for either the federal authorities or for other users. In addition, the newly-established mechanisms can also be used for sabotage by third parties. These risks must to be addressed.”[1]

“Loss of control over the operating system” isn’t a minor trifle. This suggests that any and all computers with this “feature” could go rogue and operate in contravention to the owners’ instructions, at the direction of some unseen entity on a network or by injection of an application through thumb drive, disk drive, CD, etc.

This also suggests that a Win 8 system using TPM 2.0 might well reject any attempts to use an alternative operating system — a so-called “secure boot” might cut off any application other than Win 8. For all intents and purposes, a machine with Win 8 and TPM 2.0 will operate to Microsoft’s orders and to the orders of whomever is ordering Microsoft these days. It’s not out of the question that Win 8 systems lacking valid TPM 2.0 might be prevented from accessing the internet or any other network.

Which begs the question: if Windows 8 and TPM 2.0 are installed, whose computer is it? Read more →

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Bradley Manning’s Sentence, Parole and Appeal Implications

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CryingJusticeOn Monday I laid out the dynamics that would be in play for the court in considering what sentence to give Bradley Manning in light of both the trial evidence and testimony, and that presented during the sentencing phase after the guilty verdict was rendered. Judge Lind has entered her decision, and Bradley Manning has been sentenced to a term of 35 years, had his rank reduced to E-1, had all pay & allowances forfeited, and been ordered dishonorably discharged. This post will describe the parole, appeal and incarceration implications of the sentence just imposed.

Initially, as previously stated, Pvt. Manning was credited with the 112 days of compensatory time awarded due to the finding that he was subjected to inappropriate pre-trial detention conditions while at Quantico. Pvt. Manning was credited with a total 1294 days of pre-trial incarceration credit for the compensatory time and time he has already served since the date of his arrest.

Most importantly at this point, Manning was sentenced today to a prison term of 35 years and the issue of what that sentence means – above and beyond the credit he was given both for compensatory time and time served – is what is critical going forward. The following is a look at the process, step by step, Bradley Manning will face.

The first thing that will happen now that Judge Lind has gaveled her proceedings to a close is the court will start assembling the record, in terms of complete transcript, exhibits and full docket, for transmission to the convening authority for review. It is not an understatement to say that this a huge task, as the Manning record may well be the largest ever produced in a military court martial. It will be a massive undertaking and transmission.

At the same time, the defense will start preparing their path forward in terms of issues they wish to argue. It is my understanding that Pvt. Manning has determined to continue with David Coombs as lead counsel for review and appeal, which makes sense as Coombs is fully up to speed and, at least in my opinion, has done a fantastic job. For both skill and continuity, this is a smart move.

The next step will be designation of issues to raise for review by the “convening authority”. In this case, the convening authority is Major General Jeffrey Buchanan, who heads, as Commanding General, the US Army’s Military District of Washington. This step is quite different than civilian courts, where a defendant proceeds directly to an appellate court.

The accused first has the opportunity to submit matters to the convening authority before the convening authority takes action – it’s not characterized as an “appeal,” but it’s an accused’s first opportunity to seek relief on the findings and/or the sentence. According to the Manual for Courts-Martial, Rule for Court-Martial 1105:

(a) In general. After a sentence is adjudged in any court-martial, the accused may submit matters to the convening authority in accordance with this rule.

(b) Matters which may be submitted.
(1) The accused may submit to the convening au­ thority any matters that may reasonably tend to af­ fect the convening authority’s decision whether to disapprove any findings of guilty or to approve the sentence. The convening authority is only required to consider written submissions.
(2) Submissions are not subject to the Military Rules of Evidence and may include:
(A) Allegations of errors affecting the legality of the findings or sentence;
(B) Portions or summaries of the record and copies of documentary evidence offered or intro­ duced at trial;
(C) Matters in mitigation which were not avail­ able for consideration at the court-martial; and
(D) Clemency recommendations by any mem­ber, the military judge, or any other person. The defense may ask any person for such a recommendation.

Once the convening authority has the full record and the defense has designated its matters for review, Buchanan will perform his review and determine whether any adjustments to the sentence are appropriate, and that will be considered the final sentence. At this point, the only further review is by a traditional appeal process.

Generally, the level of appellate review a case receives depends on the sentence as approved by the Read more →

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The Bradley Manning Sentencing Dynamics

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U.S. Army Private First Class Bradley Manning stands convicted of crimes under the Uniform Code of Military Justice (UCMJ). The convictions result from two events. The first was a voluntary plea of guilty by Pvt. Manning to ten lesser included charges in February, and the remainder from a verdict of guilty after trial entered by Judge Denise Lind on July 30.

The maximum possible combined sentence originally stood at 136 years for the guilty counts, but that was reduced to a maximum possible sentence of 90 years after the court entered findings of merger for several of the offenses on August 6. The “merger” resulted from the partial granting of a motion by Mr. Manning’s attorney arguing some of the offenses were effectively the same conduct and were therefore multiplicitous. The original verdict status, as well as the revised verdict status after the partial merger of offenses by the court, is contained in a very useful spreadsheet created by Alexa O’Brien (whose tireless coverage of the Manning trial has been nothing short of incredible).

Since the verdict and merger ruling, there have been two weeks of sentencing witnesses, testimony and evidence presented by both the government and defense to the court. It is not the purpose of this post to detail the testimony and evidence per se, but rather the mechanics of the sentencing process and how it will likely be carried out. For detailed coverage of the testimony and evidence, in addition to Alexa O’Brien, the reportage of Kevin Gosztola at FDL Dissenter, Julie Tate at Washington Post, Charlie Savage at New York Times and Nathan Fuller at the Bradley Manning Support Network has been outstanding.

All that is left are closing arguments and deliberation by Judge Lind on the final sentence she will hand down. So, what exactly does that portend for Bradley Manning, and how will it play out? Only Judge Lind can say what the actual sentence will be, but there is much guidance and procedural framework that is known and codified in rules, practice and procedure under the UCMJ.

Initially, the obvious should be stated, Bradley Manning is in front of an Army court martial process under the UCMJ, and while there is Read more →

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About the Reuters DEA Special Operations Division Story

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Reuters is out this morning with what is being hailed as somewhat of an eye opening expose on the Drug Enforcement Agency’s Special Operations Division. The article is very good and should be read in full, but I would like to make a couple of quick points.

First, the headline is misleading. The caption is:

Exclusive: U.S. directs agents to cover up program used to investigate Americans

Well, not really (and, in fairness, the actual body of the article is about a practice that is a result of the SOD). DEA’s Special Ops Division is neither new nor secret in the least, and there is no way to “cover it up”. Google it; I got “About 289,000 results (0.29 seconds)” as a return. You will get something similar. The revelation that SOD was used in the Viktor Bout case is also not new, here is a Time story detailing it from 2011.

In fact, any criminal defense attorney who did cocaine hub conspiracy cases in the 90’s could have told you most of the Reuter’s article in their sleep. That was exactly the scene that DEA-SOD was born from. As the war on drugs went nuclear, the DEA devised what they termed the “Kingpin Strategy”:

In 1992, the DEA instituted the Kingpin Strategy that focused investigative and enforcement efforts on specific drug trafficking organizations. The DEA planned to dis- able major organizations by attacking their most vulnerable areas—the chemicals needed to process the drugs, their finances, communications, transportation, and leadership structure.

The Kingpin Strategy held that the greatest impact on the drug trade took place when major drug organizations were dis- rupted, weakened, and destroyed. This strategy focused enforcement efforts and resources against the highest-level traffickers and their organizations, and provided a systematic way of attacking the various vulnerabilities of the organiza- tions. By systematically attacking each of these vulnerabilities, the strategy aimed to destroy the entire organization, and with it, the organization’s capacity to finance, produce, and distrib- ute massive amounts of illegal drugs. Each blow weakened the organization and improved the prospects for arresting and prosecuting the leaders and managers of the organizations.

The Kingpin Strategy evolved from the DEA’s domestic and overseas intelligence gathering and investigations.

And from Kingpin sprung the Special Operations Division:

Under the original Kingpin Strategy, DEA headquarters often dictated the selection of Kingpin targets. In response to the SACs’ concerns, Administrator Constantine agreed to allow them more latitude in target selection. In conjuction with this decision, he established the Special Operations Division at Newington, Virginia, in 1994 to coordinate multi-jurisdictional investigations against major drug trafficking organizations responsible for the flow of drugs into the United States.

The above is from a history of the DEA right there on the Justice Department’s website, so “covering up” SOD is kind of a non-starter. However, what IS being covered up, and what really is the substance of the body of the Reuter’s article, is the practice of “parallel construction” of cases:

The undated documents show that federal agents are trained to “recreate” the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant’s Constitutional right to a fair trial. If defendants don’t know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence – information that could reveal entrapment, mistakes or biased witnesses.
…..
After an arrest was made, agents then pretended that their investigation began with the traffic stop, not with the SOD tip, the former agent said. The training document reviewed by Reuters refers to this process as “parallel construction.”

The two senior DEA officials, who spoke on behalf of the agency but only on condition of anonymity, said the process is kept secret to protect sources and investigative methods. “Parallel construction is a law enforcement technique we use every day,” one official said. “It’s decades old, a bedrock concept.”

Yes. Exactly. And, as the “senior DEA officials” admitted, this, too, is not new in the least. Again, the Reuter’s quote of the incredulous former Judge Nancy Gertner aside, any number of longtime members of NACDL could have told you all of this at any point in time since the mid 90’s.

The takeaway that is important from the Reuters piece is that all the frothing about “golly, what if those NSA capabilities bleed out of terrorism and into traditional criminal cases” is nuts. It already is, and has been for a long time. It is the “clean teaming” of criminal prosecutions. And it is a direct and tangible fraud upon defendants, the courts, Due Process and several other important Constitutional concepts.

It is not a matter of what if it happens, it IS happening.

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NSA’s PRISM and the Oddity of PalTalk

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[graphic: GuardianUK (mod)]

[graphic: GuardianUK]

Remember this presentation slide on PRISM from last month’s blockbuster report by the Guardian-UK?

Remember the one outlier right smack in the middle of the slide — the company name most folks don’t recognize?

PalTalk.

Very few news outlets tackled PalTalk, explaining what the business is and asking why it was included in the program. There was little more than cursory digging; Foreign Policy looked into PalTalk’s background, while PCMag merely asked in a snarky piece why PalTalk instead of a myriad of other larger alternative social media platforms.

It’s still a good question, but the answer might be right in front of us with a little more analysis.

PalTalk is an “online video chat community,” according to its own description. This means it is in the same competitive space as AOL and Skype, as well as Microsoft’s Hotmail IM and Yahoo Messenger.

The slide we’ve seen doesn’t tell us if access to AOL, Microsoft, and Yahoo was limited to email only, however. We can’t be certain PRISM and the other programs referenced in this particular NSA presentation weren’t also permitted access to live chat environments hosted by these companies. Foreign Policy sidled up to the issue, mentioning Yahoo as well as PalTalk, but didn’t follow through. It’s been relatively easy to see how interest veered away from this question; many news outlets focused on email metadata, not chat.

Squirrel away the unasked, unanswered question(s) about chat someplace for future reference.

With regard to PalTalk, Foreign Policy noted the organization was singular among the companies cited in the NSA slide as it was not a Silicon Valley firm. PalTalk is based in New York. The line of inquiry here went no further.

Hello, New York? This small business is co-located in an AT&T facility in Manhattan, and in New Jersey according the firm’s CEO and founder Jeffrey Katz in a Forbes article dd. 2003 to which FP linked:

“…He rents space in two AT&T data centers, one in Manhattan, another in Secaucus, N.J., with $700,000 worth of computer equipment, including 80 lower-end servers from Dell Computer and five IBM Unix servers. …”

This should raise numerous questions at this point. Manhattan must be an extremely expensive place to run a data center, cheek-and-jowl with financial traffic demanding extremely high uptime. Because of the frequency with which New York was mentioned in published content about PalTalk, the New Jersey location is likely a redundant facility for the purposes of business continuity if the main facility is disrupted.

You’ll recall the last major disruptions to data traffic out of New York were due to Hurricane Sandy and 9/11.

Why would a tiny online video chat community need a data center likely to have world-class uptime and redundancy of a nature a company might need only twice a decade? Read more →

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Negative Manning Decision and the Future of Investigative Journalism

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imagesLittle more than few hours ago, a critical ruling was handed down by Judge Denise Lind in the Bradley Manning UCMJ prosecution ongoing at Fort Meade. The decision was on based on this motion by the defense seeking dismissal of the “Aiding the Enemy” charge, among others in the prosecution.

To make a long, even if sadly predictable, story short, the motion was denied by Judge Lind and the charge will proceed to determination on the merits. This is, to be sure, a nod to the prosecution (which is actually the standard in such motions for directed verdicts during trials; that is the facts are taken in the light most favorable to the non-moving party, the government). It is also, obviously, a blow to the defense, although undoubtedly an expected one for defense attorney David Coombs. There is a very outside chance of a silver lining I will discuss below.

Julie Tate at the Washington Post sets the table:

The motion to dismiss the charge was filed July 4 by Manning’s civilian defense attorney. He argued that the government had failed to show that Manning “had ‘actual knowledge’ that by giving information to WikiLeaks, he was giving information to an enemy of the United States.” He said the government did introduce evidence “which might establish that PFC Manning ‘inadvertently, accidentally, or negligently’ gave intelligence to the enemy,” but that this was not enough to prove the most serious charge against him, known as an Article 104 offense.

On two separate occasions, Lind, an Army colonel, had questioned military prosecutors about whether they would be pursuing the charge if the information had been leaked directly to The Washington Post or the New York Times. Each time, the prosecution said it would. That troubles advocates for whistleblowers, who fear that the leaking of national defense information that appears online, as it inevitably does, can be construed as assisting the enemy.

If convicted of aiding the enemy, Manning, an intelligence analyst who served in Iraq, could face life in prison.

That describes the motion and the stakes as to Manning. Julie’s article also gives more particulars on the denial this morning, and is worth a read. For a tick tock, please see the continuously good coverage by Kevin Gosztola of Firedoglake.

But as enormous as the stakes are for Bradley Manning, the enterprise of investigative journalism is also on trial, even if in an indirect manner.

Yet another journalist who has tirelessly, and superbly, covered the Manning prosecution, Alexis O’Brien, has written at the Daily Beast, the stakes for investigative journalism are also life and/or death in the face of the security/surveillance state. Citing the in court, and on the trial record, compelling testimony of Professor Yochai Benkler of Harvard Law School, Alexis related:

In a historic elocution in court last week, Prof. Yochai Benkler, co-director of the Berkman Center for Internet and Society at Harvard Law School, told Lind that “the cost of finding Pfc. Manning guilty of aiding the enemy would impose” too great a burden on the “willingness of people of good conscience but not infinite courage to come forward,” and “would severely undermine the way in which leak-based investigative journalism has worked in the tradition of [the] free press in the United States.”

“[I]f handing materials over to an organization that can be read by anyone with an internet connection, means that you are handing [it] over to the enemy—that essentially means that any leak to a media organization that can be read by any enemy anywhere in the world, becomes automatically aiding the enemy,” said Benkler. “[T]hat can’t possibly be the claim,” he added.

Benkler testified that WikiLeaks was a new mode of digital journalism that fit into a distributed model of emergent newsgathering and dissemination in the Internet age, what he termed the “networked Fourth Estate.” When asked by the prosecution if “mass document leaking is somewhat inconsistent with journalism,” Benkler responded that analysis of large data sets like the Iraq War Logs provides insight not found in one or two documents containing a “smoking gun.” The Iraq War Logs, he said, provided an alternative, independent count of casualties “based on formal documents that allowed for an analysis that was uncorrelated with the analysis that already came with an understanding of its political consequences.”

Those really are the stakes in the, now, not all that new age of digital journalism. When the prosecutors in the Manning trial, upon direct questioning by Judge Lind as to whether they would still prosecute Manning if his leaks had been delivered straight to the New York Times or Washington Post, it had to be a wake up call for traditional media. Or so you would think. But, really, the outrage has been far greater over the James Rosen/Fox subpoena that could, and arguably should, be considered relative peanuts.

But, Yochai Benkler is right as to the import of the consideration as to Wikileaks in the Manning case.

In closing, the one slim and thin ray of limited hope from today’s ruling by Denise Lind: If I were Lind and cared at all about the ultimate verdict on Pvt. Bradley Manning, I too would have made this ruling. Why, you ask? Well, because a dismissal on the motion would have been the equivalent of a directed verdict on the law and would be far easier to overturn on appeal than a decision on the merits that the government has not met its burden of proof. Is this possible; sure, it certainly is. Is this likely; no, I would not make any substantial bets on it.

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