The Narratology of Leaks, Part Two: Schooling William Welch

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Let me just say I do not relish seeing William Welch making precisely the point I have made in one of his filings. When you read this,

That Mr. Feldstein’s opinions are unreliable and based on no method at all is underscored by their internal inconsistency. He opines that “all statements in Chapter Nine that seem to indicate the potential identity of sources must not be taken at face value,” Attachment A at 3. Yet at the same time, he also concludes that “taken at face value, Mr. Risen had multiple sources” for Chapter Nine, including multiple human sources and documentary sources. Id. Moreover, because such testimony has a substantial likelihood of confusing the jury, it is also inadmissible under Rule 403.

You’d almost think Welch had read this,

The filing goes on to suggest that because Risen used this same technique he succeeded in hiding his sources.

Chapter 9 of State of War attributes thoughts and motivations hoth the “the Russian scientist” and to “the CIA case offcer.” It is not possible to infer from this attribution whether Mr. Risen spoke directly to both of these individuals, one of them or neither of them, in gathering the information contained in Chapter 9, much less what information, if any, either individual provided Mr. Risen.

Now, in the literary world, scholars are cautious about making definitive statements about the intentionality of the author (particularly as with books like this, which have clearly been edited to make the book a good read). But I’ll grant that a good investigative journalist might be (though might not be) a lot more cautious about the legal implications of the narrative voice used than a fiction writer.

But there’s another problem. The filing later suggests a reader can draw conclusions from the narrative presentation of evidence.

Taken at face value, Mr. llsen had multiple sources for the portion of Chapter 9 of State of War that discusses a CIA operation to provide flawed information to Iran’s nuclear program. These sources include multiple human sources as well as documentary sources, which may have been  provided to Mr. Risen by persons who also gave oral information to Mr. Risen or by others in addition to those who gave him oral information. Mr. Feldstein bases this opinion, in part, on the following examples: 1) page 197 of the book attributes information to a “secret CIA report”; 2) the material quoted at pages 204-05 of the book appears to have been quoted from a documentary source; 3) page 208 attributes views to unnamed “offcials”: 4) page 211 cites “several former CIA offcials”; and 5) page 211 indicates that the Senate Selcct Committee on Intellgence received information about the program from the “CIA case offcer,” but states the Committee took no action.

Sterling’s team is trying to have it both ways, drawing on Feldstein’s amateurish identification of narrative voice to suggest one cannot draw conclusions about sources, then showing Feldstein doing just that based on the clear indications given in the narrative.

Say, Bill Welch? In case you’re reading this post, you made almost as stupid an error in your request to preclude the defense’s use of narratology at the Jeffrey Sterling trial as the defense did in trying to have it both ways. You try to argue that the typical juror would understand this stuff already. Trust me, I’ve taught this subject to literature majors and honors students at a good state university, and it is not commonly understood, even among uncommonly smart people.

But even funnier is the way you make this argument.

In addition to inadmissible speculation regarding sources, the defendant also intends to call this expert to testify regarding the fact that State of War is written in the “third-person omniscient narrative style.” Attachment A at 1-2. The concept of a narrative voice, including the “third-person omniscient” narrative voice, does not require expert explanation. It is a common feature of high school reading curricula. See, e.g., English Standards of Learning in Virginia Public Schools 2 (2010), available at http://www.doe.virginia.gov/testing/sol/standards_docs/english/ 2010/stds_english9.pdf; English Standards of Learning Curriculum Framework 2010: Grade Nine 12 (2010), available at http://www.doe.virginia.gov/testing/sol/standards_docs/english /review.shtml. Because the concept of “point-of-view” is within the common knowledge and education of the average juror, it is inadmissible and properly excluded.

First, here are the correct links, in case Judge Brinkema wants to see the original references and gets lost by the 404 errors the URLs in the filing pull up.

But what the curriculum document you’ve linked to–and you yourself–are referring to is “point of view,” not “third person omniscient” narrative.

The student will read, comprehend, and analyze a variety of literary texts including narratives, narrative nonfiction, poetry, and drama.

e) Explain the relationships between and among elements of literature: characters, plot, setting, tone, point of view, and theme.

i) Explain the influence of historical context on the form, style, and point of view of a written work.

Neither the word, “omniscient,” nor the phrase “third person” appears in that curriculum document.

As even Wikipedia will tell you, “point of view” and “narrative voice” are different things. Both a first person and a third person narrative can use the same point(s) of view. The points of view (actually, focalization) James Risen used in the chapter in question is generally that of the Russian scientist and the case officer. We don’t, for example, get access to the feelings of the “senior CIA officer,” who might have been thinking that the “case officer” was being a big wuss about the doctored nuclear blueprints and should just suck it up and go on with the operation; we only get that person’s statements. And in spite of the fact that Risen uses some fairly interesting narrative techniques to convey the thoughts of the Russian (as I noted in my last post), this is not told in a first person narrative in the voices of the two: we (generally) get not only the narrator’s description of who said and thought what, but also a great deal of background about things like the IAEA, Russian nukes, and Nunn-Lugar that Risen is pretty damn knowledgeable about all by himself.

In other words, in the passage of the filing claiming that this stuff is known to VA’s high school freshmen, Welch makes an error, incorrectly conflating two aspects of narrative (and frankly, the two that would need to be distinguished for anyone, government or defense, to make an argument at trial about what the style of Risen’s text means about his sources).

Apparently, your average VA juror can be expected to know this stuff, but not a fancy government lawyer with degrees from Princeton and Northwestern.

Now, as I’ve said, I think this use of narratology in the court room is inappropriate, regardless of whether the defense or the prosecution attempts to use it (and both are trying to do so). I hope the defense responds to this filing by counter-filing that if their expert is precluded, the government should also be prevented from presenting their claims about what Risen’s narrative techniques mean, since the lawyers involved are obviously incompetent to do so.

But I will say I’m having a bit of fun watching the debate about it.

Nine Years after Aluminum Tube Fear-Mongering, Judy Miller Is Back at It

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Murdoch’s empire has a funny approach to its own mantra, “never forget.” On what is effectively the ninth anniversary of Judy Miller’s aluminum tube extravaganza, she’s back at work fear-mongering in the WSJ.

This time, she’s serving as NYPD Commissioner Ray Kelly’s stenographer. It appears Kelly decided to use the occasion that other anniversary, 9/11, to sow propaganda to counter the work the AP has done exposing Kelly’s CIA-on-the-Hudson.

A specter has haunted the New York Police Department during this week’s torrent of 10th anniversary commemorations of 9/11—the 13 terrorist plots against the city in the past decade that have failed or been thwarted thanks partly to NYPD counterterrorism efforts.

Police Commissioner Raymond W. Kelly and his 50,000-strong department know that the 9/11 gatherings are an occasion not only to reflect on that terrible day. They’re also a prime target for al Qaeda and other Islamist extremists who long to convince the world, and perhaps themselves, that they’re still capable of killing in the name of their perverse interpretation of Islam.

Commissioner Kelly allocates some $330 million of his $4.6 billion annual budget and 1,200 of his staff to counterterrorism. He and his staff, not surprisingly, spent the week bolstering security at the remembrance gatherings throughout the city. On Wednesday, he came to the Manhattan Institute to tout the NYPD’s counterterrorism record and defend his department against press allegations that his intelligence division has been spying illegally on Muslims and infringing on their privacy and civil rights. [my emphasis]

As is typical for Judy, she parrots the crafty misdirection of her sources.

The police have to factor terrorism into “everything we do,” Mr. Kelly said. If that means following leads that take NYPD undercover detectives into mosques, Islamic bookstores, Muslim student associations, cafes and nightclubs, so be it.

A journalist, after all, would have pointed out that the NYPD’s spooks aren’t simply following leads. as Kelly suggested. Rather they have sought to map out entire communities, based solely on ethnic and racial profiling.

The Demographics Unit, a squad of 16 officers fluent in a total of at least five languages, was told to map ethnic communities in New York, New Jersey and Connecticut and identify where people socialize, shop and pray.

Once that analysis was complete, according to documents obtained by the AP, the NYPD would “deploy officers in civilian clothes throughout the ethnic communities.”

Nor does Judy show any more critical assessment when listing 7 of those 13 plots against NYC that Kelly mentioned, leaving the incorrect impression that Judy’s description that these were “thwarted thanks partly to NYPD counterterrorism efforts” applies to all these plots.

You can check out the real story of those 7 cases below. As I’ve pointed out, the NYPD failed to discover the two most developed plots. At least from what is publicly known, the NYPD was only involved in 4 of the 7 cases and the ones it led have been criticized as entrapment or mere aspirational plots. And there’s a bit of leakiness from the NYPD that on at least one (and possibly two) occasions has hurt ongoing investigations.

So here’s what New Yorkers have gotten for Ray Kelly’s $3.3 billion investment (assuming the $330 million cited by Judy has remained constant) in his very own spy department.

1) It was an undercover officer in an Islamic bookstore who helped stop Shahawar Matin Siraj, a homegrown Muslim extremist and self-professed al Qaeda admirer, from bombing the Herald Square subway station during the 2004 Republican convention, Mr. Kelly said.

The NYPD “undercover officer” in this case, Osama Eldawoody, had infiltrated Siraj’s Bay Ridge Islamic community, getting paid almost $100,000 for his three year effort setting up the plot. He incited Siraj and his young, schizophrenic friend, James Elshafay, in part by showing pictures from the Abu Ghraib torture scandal. Siraj never had any explosives–Eldawoody was supposed to provide those–and in fact tried to back out of the plot days before he was arrested.

2) Another undercover officer prevented homegrown terrorists Ahmed Ferhani, 26, and Mohamed Mamdouh, 20, from bombing a Manhattan synagogue and trying to “take out the entire building.”

As with the Siraj case, the NYPD had long cultivated Ferhani (according to his lawyers, like Elshafay, he is mentally ill) and Mamdouh; the cops provided the arms used as an excuse to arrest them. The NYPD tripped the sting just days after the killing of Osama bin Laden. The Feds declined to take the case, questioning whether the gun deal was really a terrorism case and whether the case would hold up in court. And the grand jury rejected the most serious charges against the men.

3) Yes, he declared, if that was what was needed to keep tabs on the likes of Carlos Almonte and Mohammed Alessa—al Qaeda sympathizers arrested en route to Somalia at JFK Airport in 2010 “who were determined to receive terrorist training abroad only to return home to kill us here.”

Almonte and Alessa were first identified in 2006 via the FBI tip line. They traveled to Jordan (Jordan?! Who goes to Jordan to join a terrorist group?) allegedly to try join terrorists, but failed to do so. It’s unclear when the NYPD first assigned an undercover officer to the two (or why the NYPD did so instead of the FBI), but the first mention of that officer came shortly after the Nidal Hasan attack, so it’s possible the NYPD decided to more aggressively pursue people who had read or listened to Anwar al-Awlaki’s and other English-language jihadist propaganda after that attack. The men definitely did intend to try to join a terrorist group in Somalia (though there are reasons to suspect the undercover officer suggested it; and the evidence suggests they wanted to engaged in jihad there, not in the US) and they did listen to jihadist propaganda. But the bulk of the evidence simply consists of the number of times they trained using gyms or video games and accounts of the number of Camelbak water systems they bought.

4) Sigint was key in disrupting at least two of the most serious al Qaeda plots targeting New York since 9/11: the 2006 “Liquid Bomb Plot,” or “Operation Overt,” in which 25 British citizens of Pakistani descent targeted some seven transatlantic commercial flights from London to North America;

This was, by all appearances, a real, serious plot. While I’m sure the NYPD was alerted to the plot, there’s no reason to believe the NYPD was ever central to the investigation. And Dick Cheney’s sabotage of the British investigation into it would later lead to Najibullah Zazi’s attempted plot.

5) Operation Highrise, an attempt to use suicide bombers to blow up New York City subways in 2009. The homegrown Islamist in that plot was Najibullah Zazi, an Afghan immigrant with al Qaeda ties who grew up in New York City and staged his operation from there and Colorado.

Not only did the NSA and FBI discover this plot, and not only did the NYPD not discover it in spite of using Zazi’s imam as an informant, but they damaged the investigation by tipping Zazi off through that imam.

6) Another serious plot that was disrupted thanks to Internet intercepts was a 2006 scheme by Assem Hammoud, a 31-year-old Lebanese al Qaeda member, and several other still unnamed Islamists—all overseas—to flood Lower Manhattan by setting off explosives in the PATH railway tunnels under the Hudson River.

This plot was apparently discovered via chat room surveillance, with FBI leading the investigation (though Peter King was quoted as saying the NYPD was involved in the investigation). FBI sources described the plot as aspirational, not the “serious plot” Judy describes. Not only hadn’t suspects traveled to the US, they hadn’t yet done the Pakistani training they hoped would prepare them for the attack. Of particular interest, international cooperation was disrupted on this investigation because someone leaked news of it to the NY Daily News. Given that after that leak NYC’s leaders used it to call for more counter-terrorism funding, and given that some reports insisted the Feds would continue to share information with local authorities, it seems likely that someone in NY leaked it.

7) Faisal Shazad, a middle-class Pakistani–American resident of Connecticut, failed last year to detonate a bomb in Times Square only because he received too little training in Pakistan.

And Faisal Shahzad. Judy doesn’t mention that the NYPD’s investigations outside of NYC didn’t include Shahzad’s community in CT nor the hawala he used in Long Island to obtain funding from Pakistan. But at least she included it in her list, implicitly admitting that the CIA-on-the-Hudson she was celebrating didn’t find this plot.

So the story Kelly wanted Judy to tell was that the 1,200 people spying on New Yorkers have done something. And, an obedient stenographer as always, that’s what she uncritically wrote. But even a cursory look behind the claims she makes shows Kelly’s spooks have largely been entrapping dull-witted young Muslim men and hurting FBI investigations with leaks.

Be afraid, Judy says. But it’s clear she’s mistaken about what we need to fear.

Obama Rejects Senate Advice and Consent Over the Guy Who Data Mines Our Communications

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The Administration has released a veto threat of the Intelligence Authorization that I’m going to deal with in reverse order.

The last objection argues that we can’t require the head of the NSA–the agency that gets to collect and data mine virtually all of America’s telecom metadata, as well as a lot of the actual content–face Senate confirmation because that person might not be confirmed.

Confirmation of Appointment of the Director of the National Security Agency:  The Administration strongly objects to section 421, which would add a requirement that the person nominated for the position of Director of the National Security Agency be confirmed by the Senate.  The Administration believes that if this provision were to become law, a critical national security position would likely remain unfilled for a significant period of time, adversely impacting the management and function of the National Security Agency.

Admittedly, Obama has had problems getting his nominees through Congress, partly because of Republican intransigence, partly because he hung out his most progressive nominees to dry, and partly because he hasn’t gotten nominees in place.

But the solution for that is not to give up! The solution is turn Republican intransigence into a political liability. And there’s no easier area to do that with than National Security. Indeed, the only National Security nominees I’m aware of who got held up (aside from Eric Holder until he promised not to prosecute torture) were TSA nominees who supported TSA workers’ right to organize; with them, Obama made no effort to accuse Republicans for exposing the country to danger over a political spat. And even James Clapper–about whom a number of Senators had concerns–got confirmed unanimously.

Then there’s the Administration’s objection to the requirement for records of diplomatic negotiations about detainees.

Submission of Information on Detainees Held at United States Naval Station, Guantanamo Bay, Cuba: The Administration strongly objects to sections 307 and 309, which would state that the DNI must provide the Intelligence Committees with each Department of State cable, memorandum, or report containing certain information relating to Guantanamo Bay detainees, as well as government-to-government assurances related to the transfer of those detainees. The Administration believes that such disclosure will have a significant adverse impact on the willingness of foreign partners, who often expressly request this information not be disseminated, to communicate frankly on these matters.

The cables and other documents at issue – originated and controlled by the Department of State, not the ODNI – contain deliberative commentary and sensitive diplomatic discussions and negotiations, including commitments made by foreign governments relating to the handling of transferred detainees. The Department of State has accordingly declined to produce these documents to Congress or to U.S. federal courts because of the need to protect diplomatic communications in conducing effective foreign relations. The Administration is concerned that these provisions may conflict with the Executive Branch’s constitutional authority to control the disclosure of information when necessary to preserve the Executive’s ability to perform its constitutional responsibilities.

There’s a deep, deep irony here. If this were Dick Cheney’s Administration, he would have added a “besides, Congress leaks so much we can’t let these sensitive materials circulate.” Except the Executive Branch is here refusing to share with the legislative branch the kinds of cables that were leaked to WikiLeaks, largely because of the incompetence of the Executive Branch.

You see, the Executive Branch may have “constitutional authority to control the disclosure of information,” but not, apparently, the basic competence to do so.

And so Congress can’t know whether the US is letting detainees of certain nationalities–like, say, Saudi Arabia–be released because of diplomatic sensitivities. Congress can’t know whether we release someone like David Hicks to help a political ally win an election. And Congress also can’t know what is probably the greater sensitivity, whether and how the Executive Branch, and allies like the Saudis, believe they’re flipping detainees to work as spies (often mistakenly).

I can see why such a requirement would elicit a veto threat.

But I think the real veto threat comes from stuff we’re not allowed to know about.

The Administration looks forward to reviewing the updated classified annex accompanying H.R. 1892.  In a letter from the Director of National Intelligence dated August 30, 2011, the Administration identified specific provisions in the Senate classified annex that also raised serious concerns.  If H.R. 1892 is presented to the President and includes the issues of concern described below and includes, but does not adequately address, the specific provisions of the Senate classified annex, the President’s senior advisors would recommend a veto.

The fact that much of this veto threat pertains to stuff that is substantive and sensitive enough to appear in the classified annex suggests it might be a real issue (and note that the items to which the Administration objects are in the Senate annex, not the House one, so they’re not something Michele Bachmann dreamt up to be cute). It is very rare that Administrations differ with Congress on such substantive issues (as opposed to, say, GAO review). Which suggests this may well be the really interesting source of the veto threat.

William Welch & DOJ’s Dishonest Intelligence Witness Against Jeff Sterling

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In a comment to Marcy’s The Narratology of Leaking: Risen and Sterling post yesterday, MadDog related this nugget regarding the Sterling case from a Steve Aftergood article in Privacy News:

I know EW’s post’s focus was on Sterling’s defense team’s strategy, but I’d be remiss in not commenting on this tidbit from Steven Aftergood’s post:

“…In addition, a former intelligence official now tells prosecutors that portions of his testimony before a grand jury concerning certain conversations with Mr. Risen about Mr. Sterling were “a mistake on his part.” As a result, prosecutors said (8 page PDF), Mr. Risen himself is “the only source for the information the government seeks to present to the jury.”…”

I wondered just what this paragraph meant. Did it mean, as I assumed, that one of the prosecution’s key witnesses, a former intelligence official, had in fact recanted the former intelligence official’s grand jury testimony?

Here is just what the prosecution blithely said on the matter from page 5 of their supplement (8 page PDF):

“…Fifth, the testimony of the “former intelligence official” referenced in the Court’s Opinion has changed. The former official will now only say that on one occasion, Mr. Risen spoke with him about the defendant and stated that the defendant had complained about not being sufficiently recognized for his role in Classified Program No. 1 and in his recruitment of a human asset relating to Classified Program No. 1, and that on a separate occasion, Mr. Risen asked him generic questions about whether the CIA would engage in general activity similar to Classified Program No. 1. This former official, however, cannot say that Mr. Risen linked the second conversation with the defendant, although both conversations occurred within several months of each other. The former official termed his grand jury testimony, which linked the two conversations together, as a mistake on his part. In addition, the former official further modified his testimony to say that although Mr. Risen had acknowledged visiting the defendant in his hometown, Mr. Risen’s trip to see the defendant was not the main purpose of his travel, but rather a side trip.

The testimony of this former official had been cited by the Court as providing “exactly what the government seeks to obtain from its subpoena [to Mr. Risen]: an admission that Sterling was Risen’s source for the classified information in Chapter Nine.” Memorandum Opinion (Dkt No.148) at 24. The former official’s testimony will not now provide such a direct admission, further underscoring the government’s contention that for the reasons discuss in its Motion, Mr. Risen is the only source for the information the government seeks to present to the jury…”

So, that got me thinking, what is the status of the “former intelligence officer” in question? Is he still on the witness list? Who is it, and why is he “former”? Has he been charged with false statements to a government officer under 18 USC 1001? Has he been charged with perjury under 18 USC 1623? Is there a criminal investigation regarding the duplicity underway? What is being done?

Because, giving the government’s prosecutors the benefit of the doubt that they did not misrepresent or puff the “former intelligence officer’s” statements and testimony to start with, which is a pretty sizable grant for a William Welch run show, then it seems pretty clear that the “former intelligence official” is now saying that he either testified to things he did not, in fact know at the time, or he embellished/lied to the grand jury and the attending prosecutors.

The problem with the above is, the “former intelligence official is not entitled to any protection or benefit of the doubt for a “recantation” under 18 USC 1963(d). Here is the relevant portion on Read more →

The Narratology of Leaking: Risen and Sterling

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You know, I very much want Jeffrey Sterling to defeat the government’s attempt to criminalize whistleblowing. I very much want James Risen to succeed in avoiding expansive testimony in the Sterling case.

But this is bullshit.

Sterling’s lawyers plan to call Professor Mark Feldstein to make silly claims about a tie between the narrative voice an author uses and the sources he may or may not have relied on.

Mr. Feldstein wil testify that he has read Chapter 9 of State of War, authored by James Risen, and that based on his training, education, and experience as a working journalist and an academic studying journalism, will opine that it is written in the third person omniscient, a narrative style in which the reader ís presented the story by a narrator with an overarching perspective, seeing and knowing everything that happens within the world of the story, regardless of the presence of certain characters, including imputing to the characters’ internal voices what they are thinking and feeling. This style has become increasingly popular with mainstream journalists in recent years, as exemplified by books authored by Bob Woodward. One effect of the third-person omniscient narrative style is that it tends to mask the identity of a story’s sources, protecting both the anonymity of sources and disguising the number of sources. It is not uncommon using this style for an author to ascribe thoughts or motivations to particular “characters,” whether or not the author has actually spoken directly to the individual to whom thoughts and motivations are being ascribed. Indeed, it is not an uncommon practice to ascribe thoughts and motives to an individual to whom the author has not spoken intentionally to obscure who the actual source(s) for a story were.

I have a number of problems with this.

First, the narrative voice is, in places, more nuanced than a simple “third person omniscient” voice–as when Risen interjects the direct speech (in this case, thought) of the Russian scientist without quotations:

The Permanent Mission of the Islamic Republic of Iran to the International Atomic Energy Agency (IAEA) wasn’t the easiest office in Vienna to find.

They could have at least given me good directions.

As he stumbled along into Vienna’s north end, in the unglamorous neighborhood surrounding the Parterstern U-Bahn station, the same question pounded in his brain again and again, but he couldn’t find an answer.

What was the CIA thinking?

That doesn’t negate the larger point–that Risen intersperses “characters'” thoughts with omniscient narrative. But it sort of makes the point seem amateur from a narratological standpoint.

Then there’s the invocation of Woodward, that magic journalist’s name, to obscure the point. Woodward made this style of reporting popular, the filing suggests, so it must be acceptable journalism.

But that suggests two things that are not in evidence. Woodward never really hides his sources. Why bother, when there is an unwritten “Woodward rule” that says he, and perhaps only he, will never be prosecuted for reporting top secret information? Thus we–at least I–am safe assuming Woodward spoke with precisely whom it appears he spoke with, not just because we know he is systematically accorded that kind of access, but because we know sanction for participation in his semi-official histories comes straight from the top.

Woodward uses this style to make it clear (or at least suggest) that these top officials are his sources, not to obscure the kind of top-level access everyone knows he has. It’s his brand.

The filing goes on to suggest that because Risen used this same technique he succeeded in hiding his sources.

Chapter 9 of State of War attributes thoughts and motivations hoth the “the Russian scientist” and to “the CIA case offcer.” It is not possible to infer from this attribution whether Mr. Risen spoke directly to both of these individuals, one of them or neither of them, in gathering the information contained in Chapter 9, much less what information, if any, either individual provided Mr. Risen.

Now, in the literary world, scholars are cautious about making definitive statements about the intentionality of the author (particularly as with books like this, which have clearly been edited to make the book a good read). But I’ll grant that a good investigative journalist might be (though might not be) a lot more cautious about the legal implications of the narrative voice used than a fiction writer.

But there’s another problem. The filing later suggests a reader can draw conclusions from the narrative presentation of evidence.

Taken at face value, Mr. llsen had multiple sources for the portion of Chapter 9 of State of War that discusses a CIA operation to provide flawed information to Iran’s nuclear program. These sources include multiple human sources as well as documentary sources, which may have been  provided to Mr. Risen by persons who also gave oral information to Mr. Risen or by others in addition to those who gave him oral information. Mr. Feldstein bases this opinion, in part, on the following examples: 1) page 197 of the book attributes information to a “secret CIA report”; 2) the material quoted at pages 204-05 of the book appears to have been quoted from a documentary source; 3) page 208 attributes views to unnamed “offcials”: 4) page 211 cites “several former CIA offcials”; and 5) page 211 indicates that the Senate Selcct Committee on Intellgence received information about the program from the “CIA case offcer,” but states the Committee took no action.

Sterling’s team is trying to have it both ways, drawing on Feldstein’s amateurish identification of narrative voice to suggest one cannot draw conclusions about sources, then showing Feldstein doing just that based on the clear indications given in the narrative.

And there’s one more problem with the filing (that may not be problematic for Sterling’s lawyers, per se, but should be for Feldstein).

The filing suggests that the profession of journalism tolerates when reporters use omniscience to hide their sources.

But the profession does not approve when journalists use omniscience to invent details they have no way of knowing. Witness the criticism of John Heilemann and Mark Halperin for doing just that in Game Change. One of the most prominent critiques–from the NYT–specifically took Heilemann and Halperin to task for not doing what Woodward does–showing some of his work.

They proceed in these pages to serve up a spicy smorgasbord of observations, revelations and allegations — some that are based on impressive legwork and access, some that simply crystallize rumors and whispers from the campaign trail, and some that it’s hard to verify independently as more than spin or speculation on the part of unnamed sources. The authors mix savvy political analysis in these pages with detailed reconstructions of scenes and conversations they did not witness firsthand (like an exchange that Hillary Rodham Clinton and Bill Clinton had on a beach in Anguilla). They employ the same sort of technique Bob Woodward has pioneered in his best-selling books: relying heavily on “deep background” interviews, along with e-mail messages, memorandums and other forms of documentation to create a novelistic narrative that often reflects the views of the authors’ most cooperative or voluble sources. Unlike Mr. Woodward’s last two books this volume has no source notes at the end.

To succeed, this defense effort has to basically argue that either Risen or his sources may have simply invented what the Russian scientist and the case officer said. It has to argue that Risen is the same kind of hackish reporter that Heilemann and Halperin are, evidence to contrary notwithstanding.

Now, suggesting Risen engaged in bad journalism is totally within the right of Sterling’s lawyers as they mount a defense. And if it keeps him off the stand, I’m sure Risen won’t be that bothered by the suggestion he either made shit up or allowed his sources to.

But the entire effort seems legally pointless, given that they’re trying to use Feldstein both to point to other possible sources for Risen while at the same time claiming that Risen’s narrative voice makes it impossible to do just that.

How Will City Council Oversee NYPD’s Spooks after This?

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In their stories on the way the NYPD’s intelligence programs profile religious and ethnic minorities, Goldman and Apuzzo have repeatedly noted that the only entity providing oversight of the programs is the City Council.

The department has dispatched undercover officers, known as “rakers,” into minority neighborhoods as part of a human mapping program, according to officials directly involved in the program. They’ve monitored daily life in bookstores, bars, cafes and nightclubs. Police have also used informants, known as “mosque crawlers,” to monitor sermons, even when there’s no evidence of wrongdoing.

Neither the city council, which finances the department, nor the federal government, which has given NYPD more than $1.6 billion since 9/11, is told exactly what’s going on.

[snip]

The department’s primary watchdog, the New York City Council, has not held hearings on the intelligence division’s operations and former NYPD officials said council members typically do not ask for details.

“Ray Kelly briefs me privately on certain subjects that should not be discussed in public,” said City Councilman Peter Vallone. “We’ve discussed in person how they investigate certain groups they suspect have terrorist sympathizers or have terrorist suspects.”

Today, the NYPD handcuffed and detained City Councilman, Jumaane Williams, at an ethnic celebration.

A city councilman from Brooklyn was handcuffed and briefly detained by the police on Monday afternoon during the West Indian Day Parade after an argument with officers over whether he was allowed to use a closed sidewalk, said Public Advocate Bill de Blasio, whose aide was also detained in the dispute.

The councilman, Jumaane D. Williams, was not charged with a crime, nor was the aide, Kirsten John Foy, Mr. De Blasio’s community affairs director.

Observers suggested Williams and his aide may have been targeted–profiled, just like the targets of the NYPD’s intelligence program–because they are black. And Williams has already been a critic of the NYPD’s intrusive tactics.

He has been an outspoken critic of the Police Department’s “stop, question and frisk” policy.

So one of the 50 or so people who are tasked with making sure the CIA-on-the-Hudson doesn’t improperly profile or abuse New Yorkers on the basis of their race or religion just got thrown to the ground after he dared use a sidewalk an apparent police supervisor had said he could use.

I’m sure this incident won’t affect this oversight relationship at all.

10 Years Later, 9/11 Commission Says President Is Failing to Protect Civil Liberties

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The 9/11 Commission released a 10-year report card on the recommendations they made back in 2004. And one of three recommendations that remains entirely unfulfilled–the only one that is entirely the responsibility of the executive branch–is implementing a board to defend civil liberties.

“[T]here should be a board within the executive branch to oversee adherence to the [privacy] guidelines we recommend and the commitment the government makes to defend our civil liberties.”

An array of security-related policies and programs present significant privacy and civil liberty concerns. In particular, as the FBI and the rest of the intelligence community have dramatically expanded their surveillance of potential terrorists, they have used tools such as National Security Letters that may implicate the privacy of Americans. Privacy protections are also important in cyber security where the government must work with the private sector to prevent attacks that could disrupt information technology systems and critical infrastructure. The same Internet that contains private correspondence and personal information can also be used as a conduit for devastating cyber attacks.

To ensure that privacy and liberty concerns are addressed, the 9/11 Commission recommended creating a Privacy and Civil Liberties Oversight Board to monitor actions across the government. Congress and the president enacted legislation to establish this Board but it has, in fact, been dormant for more than three years.

Describing the PCLOB as “dormant” is actually a huge favor to Obama. It only suggests, but does not make explicit, that before the end of his Administration Bush actually got around to rolling out the PCLOB–evenven if it was so compromised by executive branch control that Lanny Davis felt obliged to resign.

But Obama has avoided even that much oversight by simply letting the PCLOB go unfilled for his entire Presidency. As the report card explains, Obama finally got around to making nominations after Democrats lost the numbers in the Senate to approve his nominees (though one was the Michael Mukasey Assistant Attorney General who rolled out greater investigative powers for the FBI). And even if those two were by some freakish even confirmed, PCLOB would still be short a quorum to do any work.

The Obama administration recently nominated two members for the Board, but they have not yet been confirmed by the Senate. We take the administration at its word that this Board is important: in its May 2009 review of cyber security policy, the administration noted the Board’s importance for evaluating cyber security policies. We urge the president to appoint individuals for the remaining three positions on the board, including the chairman, immediately, and for the Senate to evaluate their nominations expeditiously.

[snip]

If we were issuing grades, the implementation of this recommendation would receive a failing mark. A robust and visible Board can help reassure Americans that these programs are designed and executed with the preservation of our core values in mind. Board review can also give national security officials an extra degree of assurance that their efforts will not be perceived later as violating civil liberties.

PCLOB is an entity mandated by law. But the President refuses to comply with that law to provide for some oversight over civil liberties, no matter how inadequate.

It’s not me accusing Obama of failure on this point–it’s a bipartisan commission primarily concerned with the national security of the country. But they are, in fact, calling him a failure.

NYPD’s Failed Ethnic Profiling Program

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When Goldman and Apuzzo exposed NYPD’s domestic spying program last week, NYPD insisted it didn’t exist. So this time, they’ve posted documentary proof.

As they report, the domestic spying program employed a “Demographics Unit” that mapped out “ethnic hotspots” in the NY city area.

The program, it seems, would not even (and, as I’ve noted, did not even) accomplish what it aspired to do. While the ancestries of interest included far more nationalities than the federal government’s National Security Entry-Exit Registration System (which served a slightly different kind of ethnic profiling), adding obvious countries like Somalia and allies like Bahrain or Turkey, as well as the “American Black Muslim” ethnicity, it leaves out Nigeria (the Undie-Bomber’s nationality) and all South East Asian Muslim nationalities save Indonesia. Moreover, the group did not, apparently have the linguistic capabilities to infiltrate those groups (a slide lists Arabic, Bengali, Hindi, Punjabi, and Urdu as its linguistic capabilities).

And among the other details from the program, I find one more admission to be telling: the unit aspired to,

Identify and map ethnic residential concentrations within the Tri-State area.

Last week, I noted that the NYPD might have explained that they missed Faisal Shahzad because he lived in CT and received funds from Pakistan via a hawala on Long Island. But clearly both would fall within the scope of NYPD’s aspired goals (if not within its legal jurisdiction).

In other words, as comprehensive as this ethnic profiling program aimed to be, not only did it fall short in conception, but (by missing Shahzad and Najibullah Zazi) in execution.

NYPD’s Spooks Didn’t Find Two of the Most Significant Terrorists to Attempt Attacks on NYC

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The AP’s Goldman and Apuzzo have another blockbuster counterterrorism article, this time describing how the NYPD has built its own intelligence service to target Muslims. It’s long, but it’s worth reading the whole thing. Keep an eye out for these key details:

  • The program in part serves to overcome CIA failures to recruit a more diverse workforce
  • The NYPD borrowed some of their community mapping techniques from Israel’s efforts in the West Bank
  • The NYPD shreds documents to keep their community mapping program secret
  • The NYPD uses informants in mosques without predication, something the FBI claims it won’t do
  • The city looked for Pakistani cab drivers with fraudulent licenses as a way to recruit informants
  • The NYPD passed information to the CIA via unofficial channels
  • A top CIA operative is working at the NYPD, while still on the CIA’s payroll

As comprehensive as this story is, it leaves out two of the program’s most significant failures. The NYPD claims that this program is successful because NY hasn’t been attacked.

For [retired CIA officer David] Cohen [who pioneered this program], there was only one way to measure success: “They haven’t attacked us,” he said in a 2005 deposition. He said anything that was bad for terrorists was good for NYPD.

Granted, Cohen made that statement in 2005.

But, first of all, it’s no longer true that “they haven’t attacked us.” The Faisal Shahzad attempt last year may have been unsuccessful, but it is an example of an attack launched with international support.Yet neither the NYPD (nor, for that matter, the FBI) had any clue about Shahzad before he attacked.

That may be perfectly understandable for the NYPD. After all, Shahzad lived in Connecticut. He used a hawala (the guy who ran it just signed a plea deal), but that was in Long Island, not the City. So the few hints that Shahzad might attack were outside of NYPD’s jurisdiction. The AP article notes the NYPD’s spooks operate far outside of the city, but in any case, the failure to identify Shahzad shows how much will remain hidden even from the NYPD’s invasive approach.

The case of Najibullah Zazi is still more problematic.

The NYPD had infiltrated Zazi’s mosque in NY, which was the focus of his conspiracy. They even used the Imam there, Ahmad Wais Afzali, as an informant. Yet they appear to have had no advance warning that Zazi and two friends from NY were training for an attack (the FBI is reported to have gotten their first lead on Zazi from the Pakistanis).

In other words, all the activity described in the AP piece included Zazi’s immediate circle of associates. Yet that activity apparently failed to identify Zazi as a threat.

Even worse, the NYPD’s confidence in Afzali compromised the FBI’s case. After the FBI tipped of the NYPD, the NYPD tried to develop its own leads. That included showing Afzali a picture of Zazi, which led Afzali to call Zazi’s father and then Zazi himself to warn them of the investigation.

Media reports quoting anonymous FBI officials have suggested the NYPD botched the case when it showed a picture of Najibullah Zazi, the Denver shuttle-bus driver at the heart of the investigation, to Ahmed Afzali, a Queens Imam and sometime police informant. Afzali, the reports say, first called Zazi’s father Mohammed, then Najibullah himself, alerting them to the probe. The FBI, which had been monitoring the calls, was then forced to move immediately to arrest the Zazis — much sooner than it had planned.

[snip]

When Zazi traveled to New York ahead of the anniversary of 9/11, the FBI as a precaution alerted the NYPD. That’s when officers from the NYPD’s intelligence unit consulted Afzali. “It looks like they did this on their own initiative — they really trusted this Imam,” says the law-enforcement official. “But if they’d consulted with the bureau first, they’d have been told not to talk to anybody.”

The NYPD spoke to Afzali three times after they were tipped off to the investigation.

The NYPD’s freelancing apparently began when an Intelligence Division detective of its top secret Special Services Unit — identified in government documents as Dan Sirakowsky — telephoned Afzali on Sept. 10, a day before the eighth anniversary of the Trade Center attacks.

Afzali had been Sirakowsky’s confidential informant, or C.I., since 9/11.

Sirakowsky told Afzali the department needed to speak to him right away. Minutes after the phone call, a detective and a sergeant showed up at Afzali’s home with pictures of Zazi and three of his alleged accomplices.

According to [Afzali’s lawyer] Kuby, Afzali recognized Zazi and two others. They had been students in Afzali’s mosque class years before. The police then asked Afzali to find out more about what the three were up to in the city.

In addition, it appears that the NYPD shared information on the Zazi investigation with cops who did not have clearance.

Four NYPD detectives have been hauled before a federal grand jury probing leaks of top-secret information about a terror plot to blow up city subways, sources told the Daily News.

[snip]

The inquiry is said to be focusing on leaks of sensitive information from the FBI-NYPD Joint Terrorism Task Force to cops who did not have clearance.

Some of the information ended up in the press.

(Read that entire article for a sense of how Ray Kelly has retaliated against those who might expose the abuses and failures of his intelligence division.)

In short, not only did this elite intelligence unit not find the one guy who has actually attacked NYC, but it significantly endangered the investigation into another terrorist who came close to attacking NYC.

In Last Two Years, FBI Developed Intrusive Files on 77,100 Innocent Americans

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Charlie Savage has a story reporting on the number of assessments the FBI opened in the last two years that turned into preliminary investigations. It shows that over the period, the FBI has conducted assessments of 77,100 Americans whom they determined were not a cause for concern. Their investigations of 3,315 others turned into preliminary investigations.

Data from a recent two-year period showed that the bureau opened 82,325 assessments of people and groups in search for signs of wrongdoing. Agents closed out most of the assessments, the lowest-level of F.B.I. investigation, without finding information that justified a more intensive inquiry.

[snip]

The disclosure, covering March 25, 2009, to March 31, 2011, focused on assessments, which an agent may open “proactively or in response to investigative leads” and without first having a particular factual basis for suspecting a target of wrongdoing, according to the F.B.I. manual. Former Attorney General Michael Mukasey issued guidelines for the bureau creating that category in 2008.

During an assessment, agents may use a limited set of techniques, including searching databases about targets, conducting surveillance of their movements and sending a confidential informant to an organization’s meetings. But to use more intrusive techniques, like secretly reading e-mail, agents must open a more traditional “preliminary” or “full” investigation. Such inquiries require agents to first have a greater reason to start scrutinizing someone: either an “information or allegation” or an “articulable factual basis” indicating possible wrongdoing.

According to the data, during the 2009-11 period agents opened 42,888 assessments of people or groups to see whether they were terrorists or spies. A database search in May 2011 showed that 41,056 of the assessments had been closed. Information gathered by agents during those assessments had led to 1,986 preliminary or full investigations.

The data also showed that agents initiated 39,437 assessments of people or groups to see whether they were engaged in ordinary crime. Of those, 36,044 had been closed, while 1,329 preliminary or full investigations had been opened based on the information gathered.

The FBI would like to spin this as good news. Some of these investigations, Valerie Caproni explains in the story, would have been full-blown preliminary investigations in the past. But, as Mike German points out, the FBI is keeping records of all these searches.

The threat assessment conducted on Antiwar.com provides a really good example of what this means, even though it dates to an earlier period. That assessment–conducted in April 2004–fell under slightly different categories than the ones that generated these data. Nevertheless, the general guidelines (what FBI Agents could do to investigate these people) are roughly similar.

And what we saw in the threat assessment was the collection (and dissemination) of information that tied incidences of First Amendment protected activities of other people–an explosives suspect surfing the web, antiwar activists handing out literature at a peaceful protest–to criminal investigations. The result flips the notion of criminality on its head for the way other people’s potential criminal behavior gets lumped onto Antiwar’s free speech.

The Antiwar.com threat assessment also shows what this kind of assessment means in reality. The FBI searched somewhere between 2-4 public databases for information on Eric Garris and Justin Raimondo that they don’t want even to even admit searching publicly (they’ve exempted the disclosure under investigative techniques exemption).

Finally, the Antiwar.com threat assessment shows the kind of logic the FBI uses to advance to the next level: it found that Raimondo uses his middle name, that Antiwar.com posted a publicly available document (the watch lists showing terrorist suspects), and that some unsavory characters like white supremacists and explosives suspects had read their work. And from that–partly because Antiwar.com relies on donations for funding–the FBI decided it had sufficient basis to conduct a preliminary investigation into whether Garris and Raimondo are spies.