The FBI’s File on Antiwar.com

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As I reported yesterday, the FBI conducted a threat assessment into Antiwar.com in April 2004 in conjunction (apparently) with a terrorist watch list posted on the site. I briefly reviewed what they found, but I wanted to look in more detail at what the report on them (see pages 62-71) shows.

As I explain below, what I believe happened is that an Agent in the Newark office investigating one or two people with ties to Pakistan for terrorism did an investigation into Antiwar.com because it posted watch lists with the investigation subject’s name on them. That Agent recommended that the Electronic Communications Analysis Unit (a part of the Counterterrorism Division) continue monitoring Antiwar.com (someone is being paid to surf Antiwar.com!), and that the San Francisco office (which would have been local to Raimondo and Garris) do a Preliminary Investigation, presumably to figure out if they were posting such documents to help Islamic terrorists.

But in the course of explaining the Israeli Movers story that Raimondo had written on, that Agent referenced an investigation of the Movers that may not be an FBI investigation. Either in the course of the document circulating within the Newark office, or because it came up on a later search, someone noticed the reference to this investigation, and forwarded the document to those conducting the newly-reopened Israeli Movers investigation.

The April 2004 Threat Assessment

First, remember what this is: it’s a search in April 2004 of the FBI’s files and public databases on Justin Raimondo, Eric Garris, and Antiwar.com as those files existed in 2004. The report recommends that the San Francisco office conduct a preliminary investigation. Raimondo and Garris were stopped by DHS in 2005 on their return from a trip to Malaysia; the contents of every piece of paper that Garris had on him were copied. So it seems safe to assume that the FBI continued to investigate them after this report.

In other words, a FOIA of what the FBI currently has on them would likely have more material in it, particularly if the FBI did do that preliminary investigation on them.

Also, the report is labeled as a Threat Assessment, which the FBI’s Domestic Investigation and Operation’s Guide describes requires the following predication:

Although “no particular factual predication” is required, the basis of an assessment cannot be arbitrary or groundless speculation, nor can an assessment be based solely on the exercise of First Amendment protected activities or on the race, ethnicity, national origin or religion of the subject. Although difficult to define, “no particular factual predication” is less than “information or allegation” as required for the initiation of a preliminary investigation.

The relevant reason to conduct a preliminary investigation would be (given the suggestion in the threat assessment that Antiwar.com might working on behalf of a foreign power) the Agent’s conclusion that there was enough reason–information–indicating a threat to national security may be occurring.

“information or an allegation” indicating the existence of

[snip]

An activity constituting a federal crime or a threat to the national security has or may have occurred, is or may be occurring, or will or may occur and the investigation may obtain information relating to the activity or the involvement or role of an individual, group, or organization in such activity.

All that suggests that this document may have been the first step toward conducting a more detailed investigation of Antiwar.com.

The Antiwar.Com Material

The first thing noted in the report is results of a search of the FBI’s Universal Index, which would show,

… people who are the subjects of an FBI investigation (main file) or are associated with the subject of an investigation.

Obviously, that search returned some results, all of which have been redacted under privacy exceptions to FOIA. One of either Garris or Raimondo has a significantly longer file than the other. (Note, the first reference of them by name, which is redacted, appears to list Garris first based on the redaction; unredacted mentions of them on pages 2 and 8 maintain that order. If that order was sustained throughout, it suggests the FBI has significantly more information on Garris than Raimondo.) Interestingly, Antiwar.com didn’t return any results in the UNI.

The FBI then searched the Electronic Case Files and found either 12 or 13 documents (or 15 or 16, counting the FISA files individually). The report describes each one of these (save 4 FISA-generated documents that are just referenced by serial number). Here are descriptions of each of the documents:

The first document is completely redacted with no FOIA exemption noted.

The second document is also completely redacted, but has a b7A (Law enforcement proceeding) exemption. If the exemption is to be believed (they often aren’t), the file has been withheld because the FBI though releasing it would hurt a trial or some similar reason.

The third document is named 65T-HQ-1427774 serial 26 and is dated April 14, 2004. Its clearly a counterintelligence document, and has been exempted for national defense/foreign policy information. There’s also a “referral/consult” notation on it, which may suggest the FBI needed to consult someone else–maybe another agency–about redaction (given that this was the period when CIFA was rampant, I’m wondering if it’s a DOD generated report). The code in the document name also indicates this was a counterintelligence investigation.

The fourth and fifth documents appear from their serial numbers–315M-SL-188252 serial 152 and 315N-SL-188252 serial 176–to come from the same international terrorism (indicated by the 315) investigation. They are dated, respectively, November 17, 2003 and December 27, 2003, and the second appears to be a Letterhead Memo incorporating the first for communication outside of that FBI office. The description of the documents appear to indicate the Saint Louis office noting that Raimondo had the threat lists, reflecting particular concern about one or more people listed on the lists. Given that this document is described as pertaining to Pakistan and al Qaeda, I’m guessing these documents explain that an Islamic terrorist suspect might learn he was under investigation from the threat list. The exemptions here are national defense/foreign policy.

The sixth document, dated May 21, 2002, describes someone who wrote on US military assistance to Israel and cited Antiwar.com. In addition to law enforcement proceedings exemption, redactions cite privacy exemptions.

The seventh document, dated November 13, 2002, describes a peaceful protest at an Air Force base in the UK held four days before the report was filed. An article from Antiwar.com was passed out at the rally. The file serial number was redacted using law enforcement proceedings exemption, which seems bizarre to me, unless the FBI is trying to hide the lame reasons they’re using to investigate peaceful antiwar protests.

The eighth document, 100A-PG-67450-302 serial 970 and dated October 3, 2002 describes what appears to be the FBI infiltration of a National Alliance meeting at which one member advocated reading Antiwar.com for information on the Middle East conflict.

The ninth document, 174A-LA-234485 serial 55 and dated November 10, 2003, describes hard drives seized during an investigation (the code indicates it’s an explosives investigation) that showed the hard drives’ user visited Antiwar.com between July 25, 2002 and June 15, 2003.  A description of the investigation is redacted using privacy exemptions.

All but the date of the tenth document, February 5, 2003, is redacted using privacy and law enforcement proceedings exemptions.

The entire eleventh document is redacted using a law enforcement proceedings exemption.

As noted, there are four FISA references. All share a serial number–315B-NK-102595-EL6–that is also one of four serial numbers given to the report itself. So it appears there are 4 FISA references to Antiwar.com that may have been picked up in an investigation of Pakistani terrorists.

I’m not going to look at the results for the various database searches. Note, however, that the exemption b7E used on many of these refers to information redacted to prevent people from circumventing investigation or law enforcement. Which is another way of them saying they don’t want us to know all the public databases they can search to find information in a very low level FBI investigation.

The Israeli Movers Investigation

One more note on the content of this. Page 8 describes webpages that either discuss Antiwar.com documents or things Raimondo wrote. The fourth unredacted paragraph describes an article (later, a book) he wrote. The entire paragraph is bracketed and there are Xes in the margin, suggesting that the copy of the report in the file was handmarked by someone. What’s most interesting, however, is the last sentence.

(S) On www.chroniclesmagazine.org, an article by Justin Raimondo, “Chronicles Intelligence Assessment–the Terror Enigma: Israel and the September 11 Connection,” outlined the activities of the Mossad. It also included information obtained from a story in the Bergen Record dated 09/12/2002 regarding a group of Israelis detained by FBI, Newark, for possible involvement in the events of 9/11. [handwritten bracket] (An active investigation was conducted on the five Israeli Nationals. For a detailed report of this investigation, see [redacted]) [close handwritten bracket]

That is, the reason the recipient of this report found this paragraph interesting is because of that bracketed comment identifying “an active investigation.” But the report’s name remains redacted using the national defense/foreign policy exemption.

Now, the redaction is interesting not least because the FOIA request that resulted in this document release pertained to the Israelis, not to Antiwar.com. Yet the report redacts the instructions on where to find another report on precisely that topic.

It’s possible that the redacted report is among the case files listed on the front page of this report; one of the case IDs is redacted, and given that the Israelis were first investigated in the context of 9/11, it might not be a stretch to think it’d be included. But there’s also a circled handwritten note next to the case ID numbers written in a pen that might be the same as the one used to bracket this entire paragraph. It appears to say:

See pag 8 for real link

 Given that paragraph appears on page 8 and the only other redaction pertains to articles about Antiwar.com, it seems likely that the reference to this “active investigation” is the reason the report on Antiwar.com ended up in the Israeli Movers file in the first place. This suggests it’s likely that the redacted report is not an FBI file (because otherwise they wouldn’t need to stick an unrelated file into just to reference it).

Two more marks on the first page is worth noting here. In the lower left corner there’s a word or phrase redacted, using a national defense/foreign policy exemption. If I had to guess (and it’s just a wildarsed guess), I’d say it looks like the kind of mark people use to label a document to indicate where to file it. In addition, there’s a national defense/foreign policy exempted mark just next to the file names.

The Circulation

Another detail of interest on the first page is the circulation list:

  • Three recipients in the Counterterrorism office
  • ECAU–basically the group that would continue monitoring Antiwar.com online–which is also in Counterterrorism
  • One named Counterterrorism Agent
  • Two named Agents in the NY Office
  • One named Agent in Philadelphia
  • St. Louis’ Pakistan Squad
  • San Francisco’s Pakistan Agent

In addition, the document is titled, “IT-Pakistan; IT UBL/Al Qaeda.”

All that (plus the Case ID numbers all referencing international terrorism investigations) suggest the document was originally generated by someone investigating an alleged Pakistani terrorist, not the Israeli Movers. Thus, it appears that what I’ve referred to as documents four and five–describing the watch lists–were a key source of interest to the Agent writing the report, not the Israeli Movers (note, too, that those documents were generated in the Saint Louis office, which is likely why they received this report).

The Classifications

Finally, there’s something interesting about the classification history of not just this document, but all the documents in this FOIA pack.

When this document was initially generated in April 2004, each paragraph and the document itself was marked with a classification mark. But it didn’t get a classifying stamp right away. That’s probably just FBI sloppiness.

But then, 16 months after the document was first generated, on August 3, 2005 (or August 2 for other parts of the packet), someone did go in and add a classification stamp (see the bottom left corner) to this and all the other documents in the file. The reason given for classification is intelligence activities. The person who added that stamp may be the person who marked individual classification marks (such as the Secret mark to the notation on the bottom right corner of the document) in fairly thick pen. Those marks are generally either marking public information as unclassified (those paragraphs were wrongly classified in the first place), or marking that front page notation and that reference to the other Israeli Movers investigation secret. If so, that same person may have written the Xes and the bracket in the paragraph about the Israeli Movers on page 8.

Then, at some point, someone declassified the document. (See the stamp, at a 90 degree angle, which is crossed out, in the left hand margin.)

Then, in September 2010, someone went back in and classified the whole set of documents again (see the notation at the top left of the page). In addition to the intelligence activities cited in the 2005 classification, this one cites foreign government information (reason b) and foreign activities of the US (reason d). This suggests someone got squeamish in 2010 about what the investigation on the Israeli Movers might do to our relations with Israel.

And then, presumably in response to this FOIA, the entire packet was declassified again. I suspect the mechanical notations–both the redactions and the printed new classification marks–were done for this declassification.

Update: Made a bunch of syntactical fixes.

FBI Conducts Threat Assessment on Antiwar.Com Journalists for Linking to Publicly Available Document

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Antiwar.com has a troubling story detailing how what appears to be either an FBI counterintelligence investigation of suspected Israeli spies or an attempt to track down everyone who had posted terrorist watch lists online led to the FBI to investigate the site and Justin Raimondo and Eric Garris.

The story is troubling for several reasons:

  1. The report on Antiwar.com reveals the FBI’s Electronic Communications Unit (the same one involved in using exigent letters to get community of interest phone numbers) was already monitoring Antiwar.com when the FBI did a threat analysis of them in 2004.
  2. Based on the fact that they had posted two watch lists, that a number of people under investigation read the site, and other redacted reasons, the FBI recommended a preliminary investigation into whether (basically) they were spying.
  3. The report cited electronic communications collected under FISA. While that may be no more than 4 FISA references in another case out of the Newark Office (which appears to be a prior investigation tied to the Israelis), that’s not clear that that’s the only FISA-collected information here.
  4. Whether or not the FBI already had used FISA on Antiwar.com, the low bar for PATRIOT powers (connection to a counterterrorist or counterintelligence investigation; the Israeli investigation would qualify) means the government could have used PATRIOT powers to investigate them.

Read more →

The Re-Scoop that Pakistan Showed China Our Stealth Chopper

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On May 10, ABC news reported Pakistanis saying both they and the Chinese wanted to take a look at the stealth helicopter used in the Osama bin Laden raid. That story quoted a US official saying he would be “shocked” if the Pakistanis had not already, by May 10, shown it to the Chinese.

Pakistani officials said today they’re interested in studying the remains of the U.S.’s secret stealth-modified helicopter abandoned during the Navy SEAL raid of Osama bin Laden’s compound, and suggested the Chinese are as well.

The U.S. has already asked the Pakistanis for the helicopter wreckage back, but one Pakistani official told ABC News the Chinese were also “very interested” in seeing the remains. Another official said, “We might let them [the Chinese] take a look.”

A U.S. official said he did not know if the Pakistanis had offered a peek to the Chinese, but said he would be “shocked” if the Chinese hadn’t already been given access to the damaged aircraft.

At that point, the Pakistanis had already had the tailpiece for 10 days. It took a John Kerry trip several days later and another week of delay before the Pakistanis returned the helicopter pieces.

So why, following the FT scoop (re-scoop?) confirming that the Pakistanis had shown the helicopters to the Chinese, are folks acting so surprised?

The US now has information that Pakistan, particularly the ISI, gave access to the Chinese military to the downed helicopter in Abbottabad,” said one person in intelligence circles, referring to the Pakistani spy agency. The Chinese engineers were allowed to survey the wreckage and take photographs of it, as well as take samples of the special “stealth” skin that allowed the American team to enter Pakistan undetected by radar, he said.

And note that the NYT’s CIA reporter tries to inject doubt where the FT scoop has little (though ultimately, Mazzetti does quote one person who is “certain” Pakistan shared the helicopter).

American spy agencies have concluded that it is likely that Chinese engineers — at the invitation of Pakistani intelligence operatives — took detailed photographs of the severed tail of the Black Hawk helicopter equipped with classified technology designed to elude radar, the officials said.

[snip]

American officials cautioned that they did not yet have definitive proof that the Chinese were allowed to visit to Abbottabad. They said that Pakistani officials had denied that they showed the advanced helicopter technology to other foreign governments. One military official said Sunday that Pakistani officials had been directly confronted about the American intelligence.

One person with knowledge of the intelligence assessments said that the American case was based mostly on intercepted conversations in which Pakistani officials discussed inviting the Chinese to the crash site. He characterized intelligence officials as being “certain” that Chinese engineers were able to photograph the helicopter and even walk away with samples of the wreckage. [my emphasis]

Are we really supposed to believe it took the NSA 3 months to translate intercepts of top Paksitani officials “inviting” the Chinese to see the helicopter?

Really?

At issue may be efforts to force General Ashfaq Kayani to deny showing the Chinese the helicopter (from the FT).

“We had explicitly asked the Pakistanis in the immediate aftermath of the raid not to let anyone have access to the damaged remains of the helicopter,” said the person close to the CIA.

Senior US officials confronted General Ashfaq Kayani, head of the Pakistan military, about this but he flatly denied it, according to a person with knowledge of the meeting. A senior Pakistani official also denied it to the FT. China declined to comment, as did the White House and CIA.

Or perhaps the 3 month delay in reporting on something that was widely believed to have happened may have to do with the CIA’s desire to allow the fiction that this did not occur to continue.

In any case, the whole scoop seems, at best, the effort of someone trying to force the Administration to admit that Kayani is not dealing in good faith. At worst, it’s another case of discovering gambling going on in the casino.

John Brennan: Immunizing the Truth

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The first time I read Nicholas Schmidle’s breathtaking account of Osama bin Laden’s killing, I gave up when I got to this passage:

John Brennan, Obama’s counterterrorism adviser, told me that the President’s advisers began an “interrogation of the data, to see if, by that interrogation, you’re going to disprove the theory that bin Laden was there.” The C.I.A. intensified its intelligence-collection efforts, and, according to a recent report in the Guardian, a physician working for the agency conducted an immunization drive in Abbottabad, in the hope of acquiring DNA samples from bin Laden’s children. (No one in the compound ultimately received any immunizations.)

The article, which alternated between incredibly detailed accounts of the SEALs’ actions with more generalized depictions of Obama’s leadership, seemed designed to puff up the operation anyway. And while I’m not at all qualified to fact check the military details of it, the fact that Schmidle cited the Guardian–and not any of his own sources–for the most criticized aspect of the raid tells you a lot about the agenda of his sources. Furthermore, the fact that the Guardian provided slightly different details about the outcome of the immunization operation than Schmidle …

A nurse known as Bakhto, whose full name is Mukhtar Bibi, managed to gain entry to the Bin Laden compound to administer the vaccines. According to several sources, the doctor, who waited outside, told her to take in a handbag that was fitted with an electronic device. It is not clear what the device was, or whether she left it behind. It is also not known whether the CIA managed to obtain any Bin Laden DNA, although one source suggested the operation did not succeed.

… may indicate yet another level of manipulation on this detail of the raid.

Since that first reading, a number of people who are qualified to fact check the military details have suggested it was a nice propaganda piece. But they all remained mum about how they could tell.

Which is why I found this article, which describes Schmidle’s efforts to avoid questions about his sourcing, instructive. Among other things, it explains that Schmidle has made linguistic mistakes when covering Pakistan in the past, and suggests he might have limited linguistic understanding here, too.

He even describes how the translator Ahmed hollered in Pashto at the locals that a security operation was ongoing to allay their suspicions about the nature of the cacophony in the cantonment town. (This detail caught my eye as the majority of persons in Abbottabad, where the raid took place, speak Hindko rather than Pashto.)

While this piece doesn’t tell us what details are false, it emphasizes that Schmidle did not source the article where it appears to be sourced, to the SEALs who took part in the operation.

Now, I’m not surprised folks within the Obama Administration are leaking such heroic versions of the OBL raid. But in the context of the Administration’s war on leaks, it deserves more discussion. For example, I find it telling that a “counterterrorism official” repeatedly refutes the events presented from the perspective of the SEALs that–we know–Schmidle isn’t reporting directly.

After blasting through the gate with C-4 charges, three SEALs marched up the stairs. Midway up, they saw bin Laden’s twenty-three-year-old son, Khalid, craning his neck around the corner. He then appeared at the top of the staircase with an AK-47. Khalid, who wore a white T-shirt with an overstretched neckline and had short hair and a clipped beard, fired down at the Americans. (The counterterrorism official claims that Khalid was unarmed, though still a threat worth taking seriously. “You have an adult male, late at night, in the dark, coming down the stairs at you in an Al Qaeda house—your assumption is that you’re encountering a hostile.”)

[snip]

Three SEALs shuttled past Khalid’s body and blew open another metal cage, which obstructed the staircase leading to the third floor. Bounding up the unlit stairs, they scanned the railed landing. On the top stair, the lead SEAL swivelled right; with his night-vision goggles, he discerned that a tall, rangy man with a fist-length beard was peeking out from behind a bedroom door, ten feet away. The SEAL instantly sensed that it was Crankshaft. (The counterterrorism official asserts that the SEAL first saw bin Laden on the landing, and fired but missed.)

These are, after all, some of the details that raise legal questions about the raid (and which John Brennan botched in the days immediately following the raid). And by presenting this story falsely as if Schmidle spoke directly to the SEALs, it allows whatever Administration official who gave it to him the ability to both admit that SEALs fired at unarmed men while providing a Hollywood version that glosses over that part. From a narrative perspective, it’s worthy of a popular novelist.

Finally, though, the whole thing raises questions about who leaked this, presumably with Obama’s explicit or implicit permission.

Here’s a list of the named sources Schmidle relies on, in rough order of appearance:

Shuja Nawaz, an expert on the Pakistani Army

John Radsan, a former assistant general counsel at the C.I.A.

General James Cartwright

John Brennan, Obama’s counterterrorism adviser

Ben Rhodes, a deputy national-security adviser

Cartwright

Brennan

Ben Rhodes, the deputy national-security adviser

And here’s a list of the anonymous sources:

Senior defense and Administration officials

special-operations officer who is deeply familiar with the bin Laden raid

A senior counterterrorism official

a senior Defense Department official

a Pakistani senior military official

a senior adviser to the President

the special-operations officer

the special-operations officer

the counterterrorism official

The counterterrorism official

the special-operations officer

A former helicopter pilot with extensive special-operations experience

the special-operations officer

The senior adviser to the President

the senior Defense Department official

the special-operations officer

the special-operations officer

the special-operations officer

the special-operations officer

the special-operations officer

the special-operations officer

The senior adviser to the President

In other words, this story relies almost entirely on four sources: the special-operations officer, the senior counterterrorism official, the senior Defense Department official, and the senior adviser to the President. And among the named sources in the article are Obama’s counterterrorism adviser John Brennan, General James Cartwright, and Deputy National Security Adviser Ben Rhodes. (Former helicopter pilot and assistant commander of JSOC, Brigadier General Marshall Webb, figures prominently in the narrative, though is not quoted by name.)

And Brennan and Rhodes were reported by Schmidle to be present at some of the key low attendance events described here, such as the meeting at which Obama announced his decision to go with a SEALs operation, and the meeting at which the SEALs briefed Obama after the mission. Which is all the more telling, given that Schmidle attributed his story’s sourcing to the SEALs recollections.

…some of their recollections—on which this account is based—may be imprecise and, thus, subject to dispute.

In other words, it seems likely that Brennan and Rhodes serve as both anonymous and named sources for this story.

John Brennan had a direct role in Jeffrey Sterling’s battles with the CIA. Sterling is now being tried for allegedly leaking information equivalent to the information included in this story. Mind you, if Brennan leaked these details, he no doubt did so under the Insta-Declassification schtick that Scooter Libby used when he leaked Valerie Plame’s identity and the contents of the Iraq NIE. If the President okays leaks, they’re legal in this day and age; otherwise, they deserve the harshest punishment.

Still, this story is so thinly-veiled an Administration puff piece, it ought to attract as much attention for the sheer hypocrisy about secrecy it demonstrates as it will for the heroism such hypocrisy attempts to portray.

Update: Here’s the reason I focused on Webb (shown typing on his computer above) as the “special-forces official.”

Brigadier General Marshall Webb, an assistant commander of JSOC, took a seat at the end of a lacquered table in a small adjoining office and turned on his laptop. He opened multiple chat windows that kept him, and the White House, connected with the other command teams. The office where Webb sat had the only video feed in the White House showing real-time footage of the target, which was being shot by an unarmed RQ 170 drone flying more than fifteen thousand feet above Abbottabad. The JSOC planners, determined to keep the operation as secret as possible, had decided against using additional fighters or bombers. “It just wasn’t worth it,” the special-operations officer told me. The SEALs were on their own.

Obama returned to the White House at two o’clock, after playing nine holes of golf at Andrews Air Force Base. The Black Hawks departed from Jalalabad thirty minutes later. Just before four o’clock, Panetta announced to the group in the Situation Room that the helicopters were approaching Abbottabad. Obama stood up. “I need to watch this,” he said, stepping across the hall into the small office and taking a seat alongside Webb. Vice-President Joseph Biden, Secretary Gates, and Secretary of State Hillary Clinton followed him, as did anyone else who could fit into the office. On the office’s modestly sized LCD screen, helo one—grainy and black-and-white—appeared above the compound, then promptly ran into trouble. [my emphasis]

First, this passage describes Webb alone in the office that ultimately filled up. Sure, others must have known he was there, alone in the office, but it is a detail that no other people were present for.

More tellingly, why include the detail that Obama took a seat alongside Webb? It’s a detail that Schmidle could get from the photo–so it’s not a question of how Schmidle learned the detail. Rather, it’s a question of who would care (and who would orient the President’s actions from Webb’s perspective, rather than orienting Obama’s position in the room generally). In a way, it feels like one of those renaissance paintings that includes an image of the patron in the corner of the frame, just to make sure the viewer knows who sponsored the whole thing.

Judge Brinkema Cites Espionage Act to Protect Reporter’s Privilege

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Charlie Savage tells the headline story from Leonie Brinkema’s opinion on whether or not James Risen must testify in Jeffrey Sterling’s leak trial.

“A criminal trial subpoena is not a free pass for the government to rifle through a reporter’s notebook,” wrote the judge, Leonie Brinkema of the United State District Court in Alexandria, Va.

But I’m just as interested in a few other things she says. First there’s the way she dismisses the government’s claim that two of the people who testified to the Grand Jury–Jeffrey Sterling’s ex-girlfriend and a former CIA officer with knowledge of the MERLYN operation–would be unable to testify at he trial.

The government had argued that the girlfriend was protected by spousal privilege and that the former CIA officer would be hearsay.

Separate and apart from Risen’s concession regarding the admissibility of his grand jury affidavit at trial, see Mot. p. 45, other evidence relied upon by the Court in its Memorandum Opinion similarly would be inadmissible at trial. For example, the grand jury testimony of the witness cited by the Court at page 7 of its Memorandum Opinion would be inadmissible under Rules 801(c), 802 and 803 of the Federal Rules of Evidence and United States v. Acker, 52 F.3d 509, 514-515 (4th Cir. 1995)(availability of spousal privileges to testifying and non-testifying spouses). The grand jury testimony of the witness cited by the Court at pages 7, 9, 10, 20, and 34 of its Memorandum Opinion – testimony that this Court deemed one of the key facts in its conclusion – is inadmissible hearsay on its face absent some exception; yet Risen treats the admissibility of the testimony of both witnesses as a foregone conclusion.

But as Risen’s lawyer Joel Kurtzberg pointed out during the hearing on Risen’s subpoena, she’s not his wife!

They actually cite in their papers as to the testimony of Mr. Sterling’s ex-girlfriend, suggest that it wouldn’t be admissible because they cite to a Fourth Circuit case about the marital privilege.

And in fact, if you look at the case they cite, the case holds the exact opposite. It holds that if you are not married, even if you have been living together I believe for 26 years in that case, the marital privilege doesn’t apply.

Here’s how Brinkema dismisses this William Welch gimmick.

Although the government argues that the spousal privilege would prevent this witness from testifying, nothing in the record indicates thta Sterling and the witness are married now or were married during the time of Sterling’s alleged statements.

More interesting still is the way Brinkema dismisses the government’s claim that the CIA officer’s testimony would be inadmissible hearsay.

Brinkema starts by citing Federal Rules of Evidence describing the exception for a statement against interest.

A statement is admissible under this exception if: (1) the speaker is unavailable; (2) the statement is actually adverse to the speaker’s penal interest; and (3) corroborating circumstances clearly indicate the trustworthiness of the statement.

After noting that Risen’s testimony would be unavailable if she found that reporter’s privilege prevented his testimony or if he refused to testify, she then invokes the Espionage Act.

Risen’s statements are adverse to his penal interest because receiving classified information without proper authorization is a federal felony under 18 U.S.C. 793(e); see U.S. Sentencing Guidelines Manual 2M3.3 (providing a base offense level 29 for convictions for the “Unauthorized Receipt of Classified Information.”). 6

6 The government clearly recognizes Risen’s potential exposure to criminal liability and has offered to obtain an order of immunity for him.

Brinkema uses the overzealous interpretation of the Espionage Act the government itself has been floating lately as a way to force the government to have the former CIA officer testify, which I suspect they’d much rather not do.

And note that footnote about immunity. I’m not sure whether we knew the government had discussed offering Risen immunity or not, but particularly given claims they’re pursuing his testimony so aggressively as a way to jail him for protecting his sources, it is an interesting revelation.

Finally, there’s one more passage I find telling. In the middle of a passage discussing whether the government has access to the information Risen would testify to via other means, she notes,

The government has not stated whether it has nontestimonial direct evidence, such as email messages or recordings of telephone calls in which Sterling discloses classified information to Risen; nor has it proffered in this proceeding the circumstantial evidence it has developed.

In a case in which the government has pointed to records of emails and calls, Brinkema notes, the government has never said whether or not it has the content of those emails and calls. Given that this statement is a non sequitur (it appears amid a discussion of circumstantial evidence), and given that Brinkema knows the government may have improperly accessed Risen’s phone records in the warrantless wiretap case, I find her comment mighty suggestive.

The Inevitable Collapse of Legitimacy Under Secret Law: WikiLeaks Hacks

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DOJ indicted 16 alleged hackers today, 14 of whom were purportedly involved in hacking PayPal after it refused to accept payments for WikiLeaks.

According to the San Jose indictment, in late November 2010, WikiLeaks released a large amount of classified U.S. State Department cables on its website. Citing violations of the PayPal terms of service, and in response to WikiLeaks’ release of the classified cables, PayPal suspended WikiLeaks’ accounts so that WikiLeaks could no longer receive donations via PayPal. WikiLeaks’ website declared that PayPal’s action “tried to economically strangle WikiLeaks.”

The San Jose indictment alleges that in retribution for PayPal’s termination of WikiLeaks’ donation account, a group calling itself Anonymous coordinated and executed distributed denial of service (DDoS) attacks against PayPal’s computer servers using an open source computer program the group makes available for free download on the Internet. DDoS attacks are attempts to render computers unavailable to users through a variety of means, including saturating the target computers or networks with external communications requests, thereby denying service to legitimate users. According to the indictment, Anonymous referred to the DDoS attacks on PayPal as “Operation Avenge Assange.”

Now, I’m not surprised DOJ indicted these folks. I’m not arguing that, if they did what DOJ alleged they did, they didn’t commit a crime.

But I can’t help but notice that DOJ has not yet indicted anyone for the DDoS attacks–the very same crime–committed against WikiLeaks 8 days earlier than the crime alleged in this indictment.

I’m guessing DOJ has a very good idea who committed that crime. But for some reason (heh), they haven’t indicted those perpetrators.

In fact, I’ll bet you that DOJ also has a better explanation for why PayPal started refusing WikiLeaks donations on December 4, 2010–two days before this alleged crime–than they describe here.

But we mere citizens are privy to none of that. As far as we know–because of choices about secrecy the government has made–a crime was committed against a media outlet on November 28, 2010. That crime remains unsolved. Indeed, DOJ has never made a peep about solving that crime. Meanwhile, today, 14 people were indicted for allegedly committing the very same crime the government–inexplicably, at least according to its public statements–has not pursued.

According to the public story, at least, the rule of law died with this indictment today. The government has put itself–the hackers it likes, if not employs–above the law, while indicting 14 people for the very same crime committed just weeks before those 14 people allegedly committed their crime.

Of course, that’s probably not how the government views it. I presume they went to some judge–probably a FISA judge–in the days leading up to November 28 and told that judge they were pursuing a case of Espionage and couldn’t that judge please give the government permission to commit a crime against a media outlet.

Mind you, I’m not aware of the part of the PATRIOT Act (or other US Code) that permits the government to commit crimes against media outlets it claims are engaged in Espionage. But then I’m not aware of the part of the PATRIOT Act that permits the government to track geolocation of all of us in the name of hunting terrorists.

And we know they do that.

That’s one of the problems with secret law, you know. It’s never clear what basis the government has given a judge, in secret, for breaking the law.

Less perplexing than how the government explains why its hack of WikiLeaks is not a crime but the alleged hacking committed by these 14 people is a crime, is why PayPal and Visa and MasterCard all of a sudden, within days, decided to stop taking donations to WikiLeaks. Withdrawing funding for alleged terrorists and spies with no due process, at least, is at least provided for under the law.

Though, from the perspective of seeing that our government used it to persecute a media outlet, it doesn’t necessarily make it right.

The other interesting thing about how this secret law thing works is that around about the same time this uninvestigated hack against WikiLeaks occurred and around about the same time these alleged hackers hacked PayPal, the government anonymously leaked information about problems with the claim that WikiLeaks was, in fact, engaged in Espionage. Even at that point, the government admitted it didn’t have much of an Espionage case.

The Justice Department, in considering whether and how it might indict Julian Assange, is looking beyond the Espionage Act of 1917 to other possible offenses, including conspiracy or trafficking in stolen property, according to officials familiar with the investigation.

Attorney General Eric H. Holder Jr. acknowledged this week that there were problems with the Espionage Act, a World War I-era law that says the unauthorized possession and dissemination of information related to national defense is illegal. But he also hinted that prosecutors were looking at other statutes with regard to Mr. Assange, the founder of WikiLeaks.

[snip]

A government official familiar with the investigation said that treating WikiLeaks different from newspapers might be facilitated if investigators found any evidence that Mr. Assange aided the leaker, who is believed to be a low-level Army intelligence analyst — for example, by directing him to look for certain things and providing technological assistance.

If Mr. Assange did collaborate in the original disclosure, then prosecutors could charge him with conspiracy in the underlying leak, skirting the question of whether the subsequent publication of the documents constituted a separate criminal offense. But while investigators have looked for such evidence, there is no public sign suggesting that they have found any.

Did they tell a judge WikiLeaks was engaged in Espionage even while they were telling Charlie Savage it wasn’t?

Particularly from the perspective of today–as it has become clear that Rupert Murdoch has been trafficking in stolen property without his media properties mysteriously getting hacked by people we believe to be aligned with the government–the 7 month period in which DOJ has failed to find any grounds to indict WikiLeaks itself really raises questions about the justification DOJ presumably gave to a judge all those months ago to engage in illegal prior restraint.

I assume DOJ claimed WikiLeaks engaged in Espionage. I assume the government used that claim to hack WikiLeaks and engage in prior restraint. I assume the government used the same claim to cut off US-based donations to WikiLeaks. And if the government admitted that publicly, likely just a few crazy civil libertarians like me would object to the government’s violation of the First Amendment.

We’re so quaint, those of us who believe in rule of law!

DOJ could fix the crisis in legitimacy this indictment will bring about by simply explaining some detail about why they’re not pursuing the hackers that brought down a media outlet last year, but they have pursued hackers that brought down an online payment service (never mind questions about why they’re not pursuing banksters). They could simply explain what law they used–or abused–to be able to incapacitate a media outlet without violating the First Amendment.

That might give their actions today–and back in November–the patina of legitimacy.

But instead, they have apparently chosen to persist in applying their secret laws, such that they can violate the First Amendment of the Constitution, even while prosecuting others for crimes the government has presumably committed itself.

And that, my friends, is how secret law kills democracy and the rule of law.

Sterling’s Graymail Attempt

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As Josh Gerstein reported, back in June, Jeffrey Sterling asked the government for details about which parts of James Risen’s account of Merlin are true and which are false. His lawyers argue that Sterling cannot be guilty of disseminating national defense information if what he disseminated–as the government claims–was actually not true.

Now, at first glimpse, this seems to be a graymail attempt: an attempt to demand information from the government it will ultimately refuse to turn over.

In addition to details of the alleged operation, the defense is entitled to know if, as a result of the publication of State of War, the identity of Human Asset No. 1 was learned by any foreign power at all. It is entitled to know if because of the publication of State of War, the Iranians shelved plans to use the blue prints that they allegedly learned, due to the publication of State of War, were allegedly flawed. The defense is entitled to know if this “Rogue Operation,” as described by Mr. Risen, did help the Iranian nuclear program in any way.

Some of this information, after all, would be the information Risen’s sources would have been trying to get out in the first place; this is precisely the kind of information the government is trying to suppress by prosecuting this case. And the emphasis on whether Iran (or another country) learned this information from Risen’s book–or from the operation itself–would make for an interesting question (though I suspect the government would retreat to a claim they’ve made before: that part of the damage comes in letting other countries know about this op).

But I’m also interested in Sterling’s focus on expert witnesses: as of June 22, when this was filed, the government had not yet revealed to the defense what expert they would call to verify that this information was actually national defense information. I suspect part of what the defense is trying to do is force that issue–and in particular, learn whether that expert will be someone who was actually involved in the operation (and therefore could refute Sterling’s version of what happened) or someone else, who would rely on second-hand information.

At a minimum, it must allow the defense to challenge the accuracy of that testimony by confronting the witness called by the government with the truth of what actually occurred.

I hope to come back to this issue in the coming days.

just as interesting as this attempt to get more information on what the government claims happened with the Merlin program is the timing. At one level, it seems very late in the process, almost a second swipe at a Bill of Particulars (the government responded to the first one by giving Sterling the chapter of Risen’s book).

But remember that this filing also came before most of the filings on whether or not Risen will have to testify. I noted that in addition to everything else the government has said to support its subpoena of Risen, they also said he cannot protect a source who passed false information. Of course, they haven’t proven that, they’ve simply gotten a grand jury to buy off on that.

It seems the stakes on whether information Sterling allegedly provided Risen was true or not have gone up. But that seems to be precisely the kind of information the government will want to keep out of court.

ACLU FOIAs CIA for Documents on Juan Cole

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The ACLU has just FOIAed the CIA and Director of National Intelligence for any information on Juan Cole. It asks for,

e-mails, letters, faxes, or other correspondence, memoranda, contemporaneous notes of meetings or phone calls, reports or any other material relating to the gathering, collecting, copying, collating, generating or other use of information and material regarding Professor Cole,

The FOIA is addressed to CIA, Director of National Intelligence, and DOJ.

Now, far be it for me to tell ACLU how to FOIA–after all, they’re the best in the business at wringing embarrassing documents out of the government.

But they might want to FOIA DOD, too.

You see, there’s something that has been haunting me about this description from James Risen’s story on this.

According to Mr. Carle, Mr. Low returned from a White House meeting one day and inquired who Juan Cole was, making clear that he wanted Mr. Carle to gather information on him. Mr. Carle recalled his boss saying, “The White House wants to get him.”“ ‘What do you think we might know about him, or could find out that could discredit him?’ ” Mr. Low continued, according to Mr. Carle.

Mr. Carle said that he warned that it would be illegal to spy on Americans and refused to get involved, but that Mr. Low seemed to ignore him.

That first request elicited, Carle told Amy Goodman, four paragraphs of information, one of which included derogatory information.

GLENN CARLE: Yes, that’s correct. I was—the following day, I came to work and was asked to represent my office at the senior staff meeting, which is routine. And I did. And it was also routine that I take a memorandum of some sort up to the front office, I believe, for the White House. And I thought that I should know what I was doing for the morning, and I read the memo, and it was a memo on Professor Cole with four paragraphs, as I recall, only one of which was about inappropriate personal information. The other three struck me as innocuous. I don’t remember specifically what they said, but one of the four.

Now maybe it’s Carle’s reference, also in the Democracy Now interview, to the Plame outing. But I can’t help but think of how the White House got people across the national security community to reveal that Plame worked for the CIA: They kept asking for information on Wilson’s trip, long after they had already gotten the information they purportedly needed. So, for example, the day after John Hannah briefed Cheney on the trip, Cheney asked someone at CIA for more information on the trip, using incorrect information that would need corrected (I suspect this request was made at a Deputies Committee meeting at the White House, and I think Libby is the one who formally made the request). Then, two days later and almost certainly after Cheney had been briefed personally by (he says) George Tenet as well as (records show) John McLaughlin, and almost certainly after Libby had gotten information from Marc Grossman on Plame’s work at the CIA, Cheney and Libby called the CIA from a meeting with Cathie Martin, to ask for information they already knew. That call was ultimately how Martin learned, from Bill Harlow, that Plame worked for the CIA.

You see, the White House kept asking for the same information they already knew so they could try to get the CIA to share that information in a way they could use it. Of course, along the way, they increased the circle of people who knew that information, which is one of the things that led to the leak of Plame’s identity.

Now, this may not be what is happening here: an attempt to get CIA to take note of information about Cole the White House believed was derogatory.

But it would be worth checking to see whether likely co-participants in a meeting with National Intelligence Council’s David Low or CIA’s Deputy Director for intelligence, John A. Kringen also got similar requests–not least because DOD, with its CIPA program, would likely have been less squeamish about digging up dirt on Cole.

In any case, given the way the government responds to FOIAs, we’ll probably learn more about this in 5 years or so.

Bin Laden Found By Trolling The Weeds, Not By Torture

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Adam Goldman and Matt Apuzzo have a nice and fascinating article out today telling the story of a single CIA career analyst who was the critical cog in collating the information that led to Osama bin Laden’s capture and death:

He examined and re-examined every aspect of bin Laden’s life. How did he live while hiding in Sudan? With whom did he surround himself while living in Kandahar, Afghanistan? What would a bin Laden hideout look like today?

The CIA had a list of potential leads, associates and family members who might have access to bin Laden.

“Just keep working that list bit by bit,” one senior intelligence official recalls John telling his team. “He’s there somewhere. We’ll get there.”

Goldman and Apuzzo have done good work here; it is a great story, please read it in its entirety. But I want to play off their work to take it the step further that they did not. This is not just a feel good story about what worked and went right to capture bin Laden, it is an instructive primer on what didn’t work, to wit: torture.

So, while we congratulate CIA analyst “John”, let us also remember that years of effort, centuries of founding principles and an eternity of American morality was lost to the Bush/Cheney torture brigade. Ever since Osama bin Laden’s take down, the torture apologists have come out of their caves bleating at full voice in a vain attempt to justify their war crimes and save their face. Even yesterday, as the nation celebrated its founding, one of the most craven torture toadies of all, Marc Theissen, was back at it, saying the country owed the torture freaks an apology.

But torture is not what caught Osama bin Laden, good solid human intelligence and analysis were what did the trick.

That ability to spot the importance of seemingly insignificant details, to weave disparate strands of information into a meaningful story, gave him a particular knack for hunting terrorists.

Yes. Around here, we call that digging and trolling in the weeds. It is what works; not torture.

Russ Feingold Was Proved Fucking Right

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A number of you have been asking for my intro of Russ Feingold last Thursday. Here it is. Now that I’ve had a chance to see it I realize I had a number of misstatements (and a number of places where I glossed necessary detail–I guess I speak like I blog, for better or worse).