Did NYT’s Editors Alert the Government to Risen’s Source?

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Let me start by pointing to two data points about the case of Jeffrey Alexander Sterling–the apparent (and alleged) source for James Risen’s reporting on MERLIN.

First, as DOJ’s press release alleges, Sterling first contacted Risen in February or March of 2003. The press release later reveals he first became aware that the FBI was investigating him for leaking classified information in June 2003.

The indictment alleges that beginning a few weeks later, in February and March 2003, Sterling made various telephone calls to the author’s residence, and e-mailed the author a newspaper article about the weapons capabilities of Country A. According to the indictment, while the possible newspaper article containing the classified information Sterling allegedly provided ultimately was not published in 2003, Sterling and the author remained in touch from December 2003 through November 2005 via telephone and e-mail.

[snip]

According to the indictment, Sterling was aware by June 2003 of an FBI investigation into his disclosure of national defense information, and was aware of a grand jury investigation into the matter by June 2006, when he was served a grand jury subpoena for documents relating to the author’s book.

In other words, Sterling allegedly contacted Risen in early 2003, the NYT never published an article at that point (which would have been just as the Iraq war was starting). But by June 2003, the FBI was already investigating the alleged leak.

Couple that information with the battle between Risen and the NYT over the contents of his book (which I first noted back in 2006).

Through several months in late 2005, Mr. Risen and bureau chief Phil Taubman had clashed over whether Times editors would get a preview of the book’s closely guarded contents, sources said. It was not until Dec. 27—11 days after the wiretapping story had run—that Mr. Risen relented and allowed Mr. Taubman to see the manuscript. Mr. Risen insisted that senior editors who viewed the pre-publication copy sign nondisclosure agreements and agree not to discuss the book’s contents.

[snip]

A Times spokesperson responded to questions about the Risen book by deferring to the paper’s Ethical Journalism Guidebook, which says reporters “must notify The Times in advance” when writing books related to their beats, “so The Times can decide whether to make a competitive bid to publish the work.”

[snip]

In October 2004, Mr. Risen first presented editors with a story about the secret N.S.A. wiretapping program, the sources said. Late that same year, Mr. Risen also proposed writing a piece about an alleged foiled C.I.A. plot to deliver bogus atomic-bomb plans to Iran—another story that appears in State of War.

Mr. Risen left on book leave in January 2005. According to multiple sources, he told editors he was writing a book about former C.I.A. chief George Tenet—and did not reveal that he would be using previously reported Times material about the N.S.A. wiretapping in the book. [my emphasis]

So, according to DOJ, Risen first tried to publish a story on MERLIN in 2003. He tried again in late 2004 (after, it should be said, the NYT started protecting Dick Cheney and Scooter Libby in the Plame case). After that didn’t work, he went on book leave, saying he was writing about George Tenet and refusing to tell them it included the NSA story and the MERLIN story. Read more →

CIA Doesn’t Want You To Know It Gave Iran Nuclear Blueprints

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Here’s what I think happened with Jeffrey Alexander Sterling, the former CIA officer who just got arrested for leaking classified information to James Risen.

As I noted in the timeline, Sterling was assigned to an operation in November 1998. Given that the DOJ press release specifies that Sterling was “the operations officer assigned to handle a human asset associated with that program,” and given that Risen’s MERLIN story includes first person details from the case officer managing a Russian scientist asked to leak a nuclear blueprint to the Iranians, it seems that Sterling was that case officer.

In other words, Sterling was probably the guy who convinced a Russian defector to give a nuclear blueprint to the Iranians.

As Risen tells it, the CIA prepared the Russian for the operation in a series of meetings at a luxury hotel in San Francisco. At one point, they handed the blueprints to the Russian.

Within minutes of being handed the designs, [the Russian] had identified a flaw. “This isn’t right,” he told the CIA officers gathered around the hotel room. “There is something wrong.” His comments prompted stony looks, but no straight answers from the CIA men in the room. No one in the San Francisco meeting seemed surprised by the Russian’s assertion that the blueprints didn’t look quite right, but no one wanted to enlighten him further on the matter, either.

In fact, the CIA case officer who was the Russian’s personal handler had been stunned by the Russian’s statement. During a break, he took the senior CIA officer aside. “He wasn’t supposed to know that,” the CIA case officer told his superior. “He wasn’t supposed to find a flaw.”

“Don’t worry,” the senior CIA officer calmly replied. “It doesn’t matter.”

The CIA case officer couldn’t believe the senior CIA officer’s answer, but he still managed to keep his fears from the Russian, and he continued to train him for his mission.

In February 2000, the Russian was flown to Vienna by himself to deliver the blueprints to Iran’s mission to the IAEA there. Worried that the CIA was framing him somehow, he wrote a letter to the Iranians that he included with the blueprints.

What is the purpose of my offer?

If you try to create a similar devise you will need to ask some practical questions. No problem. You will get answers but I expect to be paid for that. Let’s talk about details later when I see a real interest in it.

Now just take your time for professional study of enclosed documentation. My contact info on next page.

In other words, the Russian warned the Iranians that there was a flaw in the blueprints.

Three months later, in May 2000, Sterling appears to have been moved off the MERLIN operation and compartmented out of it. On August 2, 2000, Sterling first filed his employment discrimination suit against the CIA. In January 2002, his employment with the CIA ended. In April of that year, the CIA invoked state secrets in his employment discrimination lawsuit. And in January 2003, the CIA’s Publication Review Board told him to include false information in his memoirs. After the CIA rejected his settlement offer in February 2003, he first reached out to Risen. While he kept in contact with him, it may not have been until after Sterling’s employment discrimination suit was rejected in either 2004 (by the VA District Court) or 2005 (by the Appeals Court, though that seems too late to have been included in Risen’s book) that the story made it into Risen’s book.

In any case, this all seems to be about the CIA’s efforts to prevent you from knowing that it gave Iran nuclear blueprints in 2000.

James Risen’s MERLIN Source Arrested

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DOJ has announced the arrest of James Risen’s source for the MERLIN story (though they don’t admit Risen and MERLIN are the leaks in question).

Jeffrey Alexander Sterling, 43, of O’Fallon, Mo., was charged in a 10-count indictment returned by a federal grand jury in the Eastern District of Virginia on Dec. 22, 2010, and unsealed today.  The indictment charges Sterling with six counts of unauthorized disclosure of national defense information, and one count each of unlawful retention of national defense information, mail fraud, unauthorized conveyance of government property and obstruction of justice.  Sterling was arrested today in St. Louis and is expected to make his initial appearance this afternoon before U.S. Magistrate Judge Terry I. Adelman in U.S. District Court for the Eastern District of Missouri.

The arrest seems all the more futile given that everyone knows the story in question.

Which leaves the interesting bits of this press release, revealing Sterling’s motive for the leak.

According to the indictment, Sterling was employed by the CIA from May 1993 to January 2002.  From November 1998 through May 2000, he was assigned to a classified clandestine operational program designed to conduct intelligence activities related to the weapons capabilities of certain countries, including Country A. During that same time frame, he was also the operations officer assigned to handle a human asset associated with that program.  According to the indictment, Sterling was reassigned in May 2000, at which time he was no longer authorized to receive or possess classified documents concerning the program or the individual.

[snip]

Specifically, the indictment alleges that beginning in August 2000, Sterling pursued various administrative and civil actions against the CIA concerning alleged employment-related racial discrimination and decisions made by the CIA’s Publications Review Board regarding Sterling’s efforts to publish his memoirs. According to the indictment, on Feb. 12, 2003, the CIA rejected Sterling’s third offer to settle his discrimination lawsuit, which was ultimately dismissed by the court.

The indictment alleges that beginning a few weeks later, in February and March 2003, Sterling made various telephone calls to the author’s residence, and e-mailed the author a newspaper article about the weapons capabilities of Country A. According to the indictment, while the possible newspaper article containing the classified information Sterling allegedly provided ultimately was not published in 2003, Sterling and the author remained in touch from December 2003 through November 2005 via telephone and e-mail. The indictment alleges that in January 2006, the author published a book which contained classified information about the program and the human asset.

The indictment also alleges that Sterling obstructed justice when, between April and July 2006, he deleted the e-mail he had sent to the author concerning the weapons capabilities of Country A from his account. According to the indictment, Sterling was aware by June 2003 of an FBI investigation into his disclosure of national defense information, and was aware of a grand jury investigation into the matter by June 2006, when he was served a grand jury subpoena for documents relating to the author’s book.

Note the reference to several suits against the CIA. The first of these appears to have been at a minimum an employment discrimination suit filed in NY on August 2, 2000. On April 18, 2002, the CIA first invoked state secrets in his case. On March 7, 2003, the judge in NY granted the CIA’s venue complaint and moved the case to Alexandria, VA–basically the CIA’s very own district court. On March 3, 2004, the case was dismissed. And on September 28, 2005, the Appeals Court rejected Sterling’s appeal.

Sterling’s second suit was filed on March 4, 2003 (that is, the day after his employment discrimination suit was dismissed in VA). It charges that Sterling submitted his memoirs for pre-publication review in 2002. His second submission was held up, not least to give CIA’s Office of General Counsel a review. Sterling claims that OGC got involved to give them an advantage in the NY employment discrimination suit. In December 2002, the CIA told him some of the information was classified (after having earlier said that similar information was not). Upon rejecting his submission on January 3, 2003, the CIA not only told him some of the information was classified, but they “informed Sterling that he should add information into the manuscript that was blatantly false.”

Read more →

TSA’s Legal Justification for Gate Grope

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The Electronic Privacy Information Center has been suing the Department of Homeland Security because it refused to engage in the public rule-making process before it adopted RapeAScan machines as part of the primary screening at airports. DHS responded to EPIC’s suit the other day. While I think their response will be largely successful as written, they’re playing games with the timing of EPIC’s suit so as to avoid doing any discussion or even administrative privacy assessment of giving passengers a choice between being photographed nude or having their genitalia fondled.

The key to this is that EPIC first requested a request for review of whether DHS should have engaged in rule-making on May 28, 2010, before TSA changed pat-down procedures. It then submitted its brief on November 1, 2010, after the enhanced pat-downs were being rolled out. But the issue still focuses on the machines and not the machines in tandem with the invasive pat-downs. So a central part of DHS’ argument is that passengers are given an alternative to the RapeAScan machines: pat-downs. But its filing never deals with the possibility that pat-downs are more invasive than even the RapeAScan machines.

TSA communicates and provides a meaningful alternative to AIT screening. TSA posts signs at security checkpoints clearly stating that AIT screening is optional, and TSA includes the same information on its website. AR 071.003. Those travelers who opt out of AIT screening must undergo an equal level of screening, consisting of a physical pat-down to check for metallic and nonmetallic weapons or devices. Ibid.

A physical pat-down is currently the only effective alternative method for screening individuals for both metallic and nonmetallic objects that might be concealed under layers of clothing. The physical pat-down given to passengers who opt out of AIT screening is the same as the pat-down given to passengers who trigger an alarm on a walk-through metal detector or register an anomaly during AIT screening. Passengers may request that physical pat-downs be conducted by same gender officers. AR 132.001. Additionally, all passengers have the right to request a private screening. Ibid. More than 98% of passengers selected for AIT screening proceed with it rather than opting out. AR 071.003.

And by focusing on this alternative with no real discussion of what it currently entails, DHS dodges the question of whether the two screening techniques together–RapeAScans and enhanced pat-downs–violate passengers’ privacy. Note, for example, how the filing boasts of two Privacy Impact Assessments TSA’s privacy officer did (plus an update just as EPIC was last complaining about this technology).

Pursuant to 6 U.S.C. § 142, DHS conducted Privacy Impact Assessments (“PIAs”) dated January 2, 2008, and October 17, 2008, to ensure that the use of AIT does not erode privacy protections. AR 011.001-.009, 025.001-.010. The second PIA was updated on July 23, 2009 and lays out several privacy safeguards tied to TSA’s use of AIT. AR 043.001-010.

Now, as a threshold matter, there’s something odd about DHS citing 6 U.S.C. § 142 here. Its requirement for PIAs reads:

The Secretary shall appoint a senior official in the Department to assume primary responsibility for privacy policy, including – (1) assuring that the use of technologies sustain, and do not erode, privacy protections relating to the use, collection, and disclosure of personal information; (2) assuring that personal information contained in Privacy Act systems of records is handled in full compliance with fair information practices as set out in the Privacy Act of 1974 [5 U.S.C. 552a]; (3) evaluating legislative and regulatory proposals involving collection, use, and disclosure of personal information by the Federal Government; (4) conducting a privacy impact assessment of proposed rules of the Department or that of the Department on the privacy of personal information, including the type of personal information collected and the number of people affected; and (5) preparing a report to Congress on an annual basis on activities of the Department that affect privacy, including complaints of privacy violations, implementation of the Privacy Act of 1974 [5 U.S.C. 552a], internal controls, and other matters. [my emphasis]

See how it says the department has to do PIAs “of proposed rules”? That suggests the Privacy Officer treated the plan to use RapeAScans as a rule and did a PIA accordingly. But this entire filing–which explains why DHS refused to accede to EPIC’s request to conduct public rule-making on the use of RapeAScans–argues that the implementation of the machines did not constitute a rule. But they did a PIA as if it was a rule!

But there’s another thing this filing doesn’t say about PIAs: that Congress demanded TSA publish a PIA on the enhanced pat-downs.

In the absence of an Executive branch level Privacy and Civil Liberties Oversight Board that would evaluate decisions such as this, it was crucial that the Department of Homeland Security’s Privacy Officer and Office for Civil Rights and Civil Liberties thoroughly evaluate and publish written assessments on how this decision affects the privacy and civil rights of the traveling public. To date, the Department has not published either a Privacy Impact Assessment (PIA) nor a Civil Liberties Impact Assessment (CLIA) on the enhanced pat down procedures. Without a published PIA or CLIA, we cannot ascertain the extent to which TSA has considered how these procedures should be implemented with respect to certain populations such as children, people with disabilities, and the elderly. By not issuing these assessments, the traveling public has no assurance that these procedures have been thoroughly evaluated for constitutionality.

So while DHS boasts that it did PIAs on the RapeAScans before it rolled them out, it still does not appear to have done a PIA on the groping that serves as DHS’ much touted alternative to RapeAScans, much less a PIA on the two techniques offered together.

Now, DHS is using procedural complaints to object to EPIC’s inclusion of Nadhira Al-Khalili on the complaint, a lawyer with ties to the Muslim community. But their response to EPIC’s freedom of religion complaint seems to suggest they recognize they are vulnerable: suggesting that if a Muslim (or anyone else with documented reason to be opposed to having nude pictures taken and/or their genitalia groped by strangers) were to sue, the procedures would not hold up.

But for now, DHS is treating the RapeAScans separately from the groping so as to be able to argue that in conjunction with the “choice” of being groped, the RapeAScans present no big privacy problem.

Obama/Bush DOJ Update to OLC Christmas Carol

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Earlier I linked to and posted the oh so hilarious (if you appreciate the humor in the supposed creme de la creme of government attorneys laughing about breaking the law and violating citizens’ rights) Christmas carol drafted by the DOJ’s Office of Legal Counsel (OLC) all the way back during the Carter Administration. It seems to be making a comeback through a post at Volokh Conspiracy.

Well, through what can only be described as a Christmas miracle, our very own Mary has “discovered” the new version, as updated by the Obama/Bush OLC:

You’d better watch out,
look up in the sky,
You’d better not doubt;
Better say your good bye.
Santa Claus is droning
Your home.

He’s paying out bounties,
For kids he pays five,
He’s razoring genitals
And burying alive.
Santa Claus is beating
the prone

He hears you in your cages,
Videotapes your screams and moans,
After sharing with Senate pages,
Then he’ll freeze you all alone

So–you mustn’t believe
In Justice tonight.
On Christmas Eve
She’s lost more than her sight
The OLC will help with hiding
Your bones.

As Mary noted, “Those jokers at OLC. At least they enjoy their work”. Indeed. With “wise men” like John Yoo, Jay Bybee and Steve Bradbury, what could go wrong?

State Secrets Santa and SCOTUS

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Amid all the holiday hustle, bustle and, on at least some of the lame duck session accomplishments, success of Barack Obama, it is good to keep in mind what a lump of coal his administration has been on civil liberties and privacy. Nothing has been more emblematic of the cancer they have been in this regard than the posture they have relentlessly fought for on unfettered and unilateral ability of the Executive Branch to impose the state secrets doctrine to shield the government from litigation, even when it is concealing blatant and wholesale government criminality.

Just three days ago, the final judgment in al-Haramain was entered by Judge Vaughn Walker, and it was a good one. But, lest it be forgotten, the government basically refused to defend in that case, belligerently asserting that they were entitled to dismissal on the states secrets doctrine. That will be the government’s hard nosed basis for appeal to the 9th Circuit and, eventually, presumably the Supreme Court. Recently in the 9th Circuit the horrid en banc decision in Mohamed v. Jeppesen was entered granting nearly unfettered state secrets powers to the Executive and which the ACLU filed a petition for certiorari earlier this month. Both of these cases will likely hit the Supreme Court in 2011, with Jeppesen obviously further ahead in the process.

So, 2011 is going to be a busy and critical year for state secrets litigation in the Supreme Court, but those are just the two cases you likely know about; there is another case, actually two related cases combined, already racked and ready in the queue when the Supremes return to work in January. The cases are General Dynamics v. US and Boeing Company v. US, and they are not classic state secrets cases, but may well be used as a back door by the government to advance their unrestrained use of the Read more →

Vaughn Walker Issues Final al-Haramain Opinion on Damages and Attorney Fees

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As you may recall, Chief Judge Vaughn Walker of the Northern District of California (NDCA), who has handled two of the most critical and transcendent litigations of the last decade, Perry v. Schwarzenegger and al-Haramain v. Bush/Obama, is retiring. Today, he has issued his last big opinion left on his table pre-retirement, the ruling on damages to be awarded Plaintiff in al-Haramain, assignment of attorney fees to Plaintiffs, and whether or not to impose punitive damages against the government for their offending illegal conduct.

The government, in its brief objecting to the Plaintiffs’ proposed form of judgment, basically poked the court in the eye with a stick by continuing their obstreperous refusal to accept the court’s jurisdiction over their assertion of state secrets, continued to argue there were no facts competently of record despite Walker’s crystal clear determinations to the contrary, and denied that Plaintiffs were entitled to attorney fees or punitive damages. They just say NO. The Plaintiffs went on to properly lodge their calculation of damages, detailed request for attorney fees and affidavit in support thereof. Plaintiffs al-Haramain, separately, filed a very compelling brief on why the court should award them punitive damages against the government. The government, of course, objected some more.

As lead Plaintiffs counsel Jon Eisenberg stated in the punitive damages brief:

Defendants abused the extraordinary power of the Executive Branch by committing unlawful electronic surveillance of the plaintiffs with full knowledge of, and in flagrant disregard for, determinations by top officials in the Department of Justice (DOJ) that the surveillance lacked constitutional or other legal support. Defendants sought to put themselves above the law, in the manner of a monarch. That is a profound abuse of America’s trust. It calls for strong medicine.

And thus it all comes down to today’s decision by Judge Walker, and here is the full text of his 47 page order.

In short, Walker has ordered that Plaintiffs Wendell Belew and Asim Ghafoor (a-Haramain’s attorneys wrongfully surveilled) receive $20,400.00 each in liquidated damages. Walker denied damages to al-Haramain itself. In regards to punitive damages, Judge Walker has denied in full Plaintiffs’ request. As to attorney fees, the court grants the motion as to Plaintiffs Ghafoor and Belew only (again, not as to al-Haramain itself, and awards attorney fees and expenses in the amount of $2,537,399.45.

There is a lot to chew on in this order, and both Marcy and I will be coming back to do just that after chewing and digesting it further. But so far, it is clear that the court sided completely with the plaintiffs on compensatory/liquidated damages, giving Belew and Ghafoor every penny they asked for and finding the government’s opposition meritless. This passage by the court is telling: Read more →

161,948 SARs Become 103 Investigations and 5 Arrests

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The WaPo rolled out one last story to shore up their “Top Secret America” Pulitzer bid before the end of the year. I agree with Glenn’s overall assessment of this latest installment:

As was true of the first several installments of their “Top Secret America,” there aren’t any particularly new revelations for those paying attention to such matters, but the picture it paints — and the fact that it is presented in an establishment organ such as The Washington Post — is nonetheless valuable.

But I did want to point out what I find to be the most valuable detail in the story:

As of December, there were 161,948 suspicious activity files in the classified Guardian database, mostly leads from FBI headquarters and state field offices. Two years ago, the bureau set up an unclassified section of the database so state and local agencies could send in suspicious incident reports and review those submitted by their counterparts in other states. Some 890 state and local agencies have sent in 7,197 reports so far.

Of those, 103 have become full investigations that have resulted in at least five arrests, the FBI said. There have been no convictions yet. An additional 365 reports have added information to ongoing cases. [my emphasis]

That, as much as the skeptical comments from true experts like Philip Mudd and Charles Allen included in the story, really lays the stark inefficiency of this entire network: Less then .1% of the Suspicious Activity Reports have resulted in any real investigation, and just 5% of those investigations–a teeny fraction of the total–have resulted in any arrest.

So I hope no one actually believes this effort is an effective means to root out terrorism, however that gets defined.

Which would suggest the larger purpose for all this surveillance of private citizens is something else. Partly, as the WaPo points out, to use to combat more pedestrian crimes. But also to create the Total Information Awareness database that Americans once rejected soundly.

But, as Glenn points out, whereas Americans objected to such an expansive invasion of the privacy in the months after 9/11, they now welcome it.

Many Americans plead with their Government in unison:  we demand that you know everything about us but that you keep us ignorant about what you do and punish those who reveal it to us.  Often, this kind of oppressive Surveillance State has to be forcibly imposed on a resistant citizenry, but much of the frightened American citizenry — led by most transparency-hating media figures — has been trained with an endless stream of fear-mongering to demand that they be subjected to more and more of it.

All the better to distract the people from the real threat posed by the banksters and the others dismantling the middle class and our democracy.

Throwing our PATRIOT at Assange

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Last week, U.S. Attorney General Eric Holder admitted what bmaz laid out yesterday — the problems with prosecuting WikiLeaks’ Julian Assange under the Espionage Act. But at the same time, he said, the Espionage Act may play a role in a possible Assange indictment.

“I don’t want to get into specifics here, but people would have a misimpression if the only statute you think that we are looking at is the Espionage Act,” Mr. Holder said Monday at a news conference. “That is certainly something that might play a role, but there are other statutes, other tools that we have at our disposal.”

So even with all the problems in applying the Espionage Act to Assange, Holder is still invoking the provision in his discussion of the “tools that we have at our disposal” to combat Assange.

Legally, the stance could have import beyond the question of whether or not they can indict him.

Consider, for example, this language on the National Security Letter provision of the PATRIOT Act, which allows the FBI, with no court oversight, to require financial service and telecommunications providers to  turn over data pertaining to any investigation the Department of Justice asserts is an espionage investigation:

A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession made by the Director of the Federal Bureau of Investigation under subsection (b) of this section.

The Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, may—

request the name, address, length of service, and local and long distance toll billing records of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the name, address, length of service, and toll billing records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States; [my emphasis]

Or this language from Section 215 of the PATRIOT Act, which allows the FBI, with FISA Court approval, to require private businesses to secretly turn over a broad range of business records or tangible items pertaining to any investigation DOJ asserts is an espionage investigation.

The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution. [my emphasis]

Between these two provisions, the government can collect a wide range of information on US persons — things like donations via credit card and server data — simply by claiming the investigation involves spying. They don’t have to even claim there’s a connection between those US persons making those donations or accessing the particular server and the alleged spy. They don’t have to prove that the case involves spying or that they have the ability to indict under the Espionage Act. They only have to claim they are pursuing an authorized — ultimately, the AG does the authorizing — investigation to protect against spying.

Which is what the Attorney General is suggesting here, that they are investigating Assange and the Espionage Act might play a role.

Mind you, they’d also have to claim (to themselves, in the case of the NSL, to FISC in the case of Section 215) that they were collecting data on a US person for reasons above and beyond that person’s First Amendment right to read stuff on the InterToobz or donate to people the government is loosely alleging may be sort of like a spy. Mind you, if the government did collect — say — the names of Americans donating to WikiLeaks via MasterCard or Visa or Paypal, or the names of Americans accessing the WikiLeaks site for the day Amazon hosted it, those people might have a great lawsuit claiming they had been targeted for First Amendment protected activities.

If they ever found out they were targeted.

But of course, we don’t have any way of knowing whether the government decided to use the PATRIOT Act provisions allowing them to collect data on Americans so long as they assert a connection to an Espionage investigation. Because that all remains secret.

Now, I have no idea whether the government is doing this (though I could imagine that if financial service providers like MasterCard and Visa got a really onerous request from DOJ, they might choose to end their relationship with Assange rather than provide ongoing compliance with the DOJ request).

But it seems these PATRIOT provisions are just the tip of the iceberg of potential investigative techniques they could have access to (FISA wiretaps are another) based on the stance that DOJ is investigating Assange for spying, whether or not they ever intend to charge him with spying.

John Pistole: “What I Think Is Appropriate in Terms of Privacy”

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This entire interview between TSA Director John Pistole, James Fallows, and Jeffrey Goldberg is worth reading. But I’m particularly interested in what Pistole says about his role in finding the appropriate balance between security and privacy.

James Fallows: I’d like to start with a question both Jeff and I have raised, which is the whole question of the balance between security, on the one hand, and liberty and privacy concerns, on the other. Is it TSA’s job to set that balance? Or how do you think that balance is set?

John Pistole: The way I view it is for TSA to develop the security protocols that afford the best security, while recognizing that there is a balance. The best security would be something way beyond what we’re doing.

Jeffrey Goldberg: The best security would be to just not allow people on planes. That’s perfect security.

Pistole: That’s “risk elimination.” And we’re not in the risk-elimination business, we’re in risk mitigation, informed by the latest intelligence, informed by our friends [in the intelligence agencies], and informed by the results of our covert testing.

Those things inform judgments and actions and then we take that information — I take that information — and then ask the experts how can we address these threats? They come up with different things based on all the information they have, and then they make a recommendation, and then it’s up to me to say, OK, does that exceed what I think is appropriate in terms of privacy?

So that’s my responsibility. To say, does this give us security, without violating something that would be a Fourth Amendment issue? [my emphasis]

According to Pistole, it’s up to him–his responsibility–to determine what the appropriate balance between privacy and security.

Now, I appreciate that, at some level, it is up to him. He’s in charge of TSA and he’s got to make the final decision whether to implement (or discontinue) a controversial scanning technology.

But it’s not up to him.

It’s up to the entities that review counterterrorism techniques for their civil liberties and privacy impact. Specifically it’s up to the Privacy and Civil Liberties Oversight Board, which is mandated by Congress to do the following:

(1) analyze and review actions the executive branch takes to protect the Nation from terrorism, ensuring that the need for such actions is balanced with the need to protect privacy and civil liberties; and

(2) ensure that liberty concerns are appropriately considered in the development and implementation of laws, regulations, and policies related to efforts to protect the Nation against terrorism.

The PCLOB never got fully off the ground after it was passed in 2007. More appallingly, Obama hasn’t even nominated anyone to the board.

Absent review by the PCLOB, Department of Homeland Security is required to conduct a Privacy Impact Assessment, which it appears not to have done either. And Pistole should know that these reviews should take place, since Bennie Thompson reminded him of the fact several weeks ago.

In the absence of an Executive branch level Privacy and Civil Liberties Oversight Board that would evaluate decisions such as this, it was crucial that the Department of Homeland Security’s Privacy Officer and Office for Civil Rights and Civil Liberties thoroughly evaluate and publish written assessments on how this decision affects the privacy and civil rights of the traveling public. To date, the Department has not published either a Privacy Impact Assessment (PIA) nor a Civil Liberties Impact Assessment (CLIA) on the enhanced pat down procedures. Without a published PIA or CLIA, we cannot ascertain the extent to which TSA has considered how these procedures should be implemented with respect to certain populations such as children, people with disabilities, and the elderly. By not issuing these assessments, the traveling public has no assurance that these procedures have been thoroughly evaluated for constitutionality.

There is a means to conduct an independent review of where the line between privacy and security is–or at least there’s supposed to be, even if Obama refuses to fulfill that mandate.

I’m sure it’s nice for Obama and Pistole that, rather than having an independent board review gate grope before it gets implemented, Pistole just took it on himself to decide whether it’s constitutional and appropriate or not.

But that’s not how it’s supposed to work.