Is the Government Confirming They Used MERLIN with Other Countries?

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Josh Gerstein notes a curious argument the government makes in its motion to deny bail to alleged leaker Jeffrey Sterling: that leaking is more dangerous than espionage.

The defendant’s unauthorized disclosures, however, may be viewed as more pernicious than the typical espionage case where a spy sells classified information for money. Unlike the typical espionage case where a single foreign country or intelligence agency may be the beneficiary of the unauthorized disclosure of classified information, this defendant elected to disclose the classified information publicly through the mass media. Thus, every foreign adversary stood to benefit from the defendant’s unauthorized disclosure of classified information, thus posing an even greater threat to society.

Now, Gerstein looks at what this likely means for Wikileaks.

The Justice Department’s brief emphasizing the dangers of leaks could be seen as a preview of arguments the government will make against Wikileaks if authorities proceed with a prosecution of its founder, Julian Assange, or others who are part of the group. A prosecution of Wikileaks would open a significant new front in the Obama Administration’s war on leaks, which has so far targeted only leakers for prosecution and not those who receive the leaks.

But I’m interested in what they’re asserting as it has to do with Sterling’s case.

The government repeatedly claims that the big damage from Sterling’s leak is that it put the life of his source–almost certainly the former Russian nuclear scientist who passed doctored nuke plans to Iran–at risk.

In making these illegal disclosures, the defendant put the life of at least one individual in great danger. This individual, identified as Human Asset No. 1 in the Indictment, see Indictment, ¶ 14, played a role in Classified Program No. 1. The defendant’s illegal disclosures revealed certain identifying information about Human Asset No. 1 that placed Human Asset No. 1 in great danger. Id. at ¶ 42. The threat to Human Asset No. 1 was so great that certain United States government officials cited the danger to Human Asset No. 1 as one reason why Author A’s employer should not publish a newspaper article about Classified Program No. 1 in late April 2003. Id. at ¶ 42.

That expressed concern is really rich, as Risen’s book suggests that one of the concerns of the MERLIN case officer–presumably Sterling himself–is that the CIA had botched the process of doctoring the nuke plans so badly, the Russian immediately became aware of the flaw in the plans.

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.

It was a fear about the flaw in the blueprints that led the Russian to include a note hinting there was such a flaw.

There is, of course, the damage done to the Russian’s ability to conduct any similar operations. It’s worth noting, though, that at least as presented in Risen’s book, this was the first time in the many years he had been in the CIA’s defector resettlement program when the CIA asked him to conduct such an operation.

One secret CIA report said that the Russian “was a known handling problem due to his demanding and overbearing nature.” Yet the same report stated that he was also a “sensitive agent” who could be used in a “high-priority covert-action operation.”

So despite their disputes, the CIA had arranged for the Russian to become an American citizen and had kept him on the payroll, to the tune of $5,000 a month. It really did seem like easy money, with few strings attached. Life was good. He was happy to be on the CIA gravy train.

Until now. The CIA was placing him on the front lines of a plan that seemed to be completely at odds with the interests of the United States, and it had taken a lot of persuading by his CIA case officer to convince him to go through with what appeared to be a rogue operation.

But what really seems to be the government’s complaint, if you take their filing in good faith, is the notion that “every foreign adversary stood to benefit from the defendant’s unauthorized disclosure of classified information, thus posing an even greater threat to society.”

Is that, then, a confirmation of something that James Risen’s sources (plural) only suggested to him?

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Air National Guard Will Deploy Drones to Spy on Black Bears in Adirondack Park

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As part of what they bill as a “military training program,” the Air Force National Guard will deploy a bunch of MQ-9 Reaper drones over the Adirondacks park in Northern NY. (h/t Tim Shorrock)

The Air Force Air National Guard will fly remotely piloted planes over the Adirondacks starting next June.

Crews at ground control stations fly the unmanned aircraft, the MQ-9 Reaper, from both line-of-sight locations and by satellite.

Col. Charles “Spider” Dorsey, vice commander of the 174th Fighter Wing based at Fort Drum, presented details of the new military training program to Adirondack Park Agency commissioners Thursday.

[snip]

It is used for intelligence-gathering details, Dorsey explained, and also for combat search and rescue or simulated attacks.

The Department of Defense prohibits target surveillance of U.S. citizens by intelligence systems,” the colonel said, to deflect concern about any intrusion from the sorties.

[snip]

The MQ-9 is used by the Army, Navy and U.S. Border Patrol, primarily along the southern border, Dorsey said.

Now, Colonel “Spider” Dorsey admits that this drone is used to collect intelligence. But don’t you worry, he says, because DOD prohibits “target surveillance” of US citizens by intelligence systems. I’m not sure precisely what he means by “target surveillance,” but as the NSA’s mission makes clear, DOD does not prohibit surveillance of US citizens by intelligence systems, at least within some parameters.

Moreover, as the use of these drones by Border Patrol makes clear, the US government does use these drones to surveil humans in the US. The legal basis for doing so would generally restrict its use to border areas. But as it happens, the Adirondacks are pretty damn close to an international border, and Fort Drum is even closer to that border. So the US government could very easily start flying “border patrol” missions out of Fort Drum with this drone and–given that DOD had publicly announced its use for “training missions” in the Adirondacks–no one on the ground would know any different. Particularly not given that–as “Spider” boasts–these are designed to be silent. And since this is a medium-to-high altitude drone, with a top flying altitude of 50,000 feet, those “black bears” on the ground “in the Adirondacks” wouldn’t see the damn thing, either.

Mind you, the Adirondacks are really not all that far from all the major population centers in the Northeast; both Boston and NYC would easily fall within its 1,150 mile range. So if this silent, high flying intelligence drone just happened to collect information from people in either one of those cities, under the legal cover of a border-related mission, we would have no way of knowing. Particularly given that the Air Force specifically prohibits anyone cleared into its Special Access Programs from talking to Congress about them.

But don’t you worry. Spider tells us we have nothing to worry about. Honest, I’m sure they’re just spying on the black bears that live in the park.

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Wikileaks Redactions: It’s Not Just the Chinese that Bribe for Oil

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Given the past history of how newspapers have redacted (or not) Wikileaks dumps, I was very interested in an article that reveals what the Guardian (or one of its media partners) redacted in a cable on Kazakh corruption. The Guardian summarizes the cable this way:

Top Kazakh energy official reveals the four principal gate-keepers around President Nursultan Nazarbayev, including Timur Kulibayev, the favoured billionaire presidential son-in-law.

But read more closely, it serves to record Ambassador Richard Hoagland’s judgment that KazMunaiGaz First Vice President Maksat Idenov is currently (on January 25, 2010) successfully ensuring that two big hyrdocarbon projects will be developed according to “international standards”–which seems to imply something about the level of bribery involved, but it’s not entirely clear whether that implies less bribery or none at all. The big question, in any case, is whether President Nazarbayev’s son-in-law, Kulibayev, will demand bribes associated with the projects.

But as Israel Shamir reveals in an article for Counterpunch (here’s a Fast Company article with more background on Shamir) there are three details that have been redacted in the Guardian version, all of which make the role of bribery more obvious and point to much closer British, Italian, and US ties to that kind of bribery.

In the first instance, the Guardian version of the cable redacts an explicit reference–attributed to Idenov but not a direct quote from him–to the role of bribery in Kazakhstan and in capitalism more generally. (The bolded text is what is redacted in the Guardian version.)

According to Idenov, in Kazakhstan, market economy means capitalism, which means big money, which means large bribes for the best connected.

But it’s not that analogy which seems to tie the US and Britain more closely to the culture of bribery in Kazakhstan. With two other redactions, the Guardian version of the cable hides the ties between British Gas Country Director for Kazakhstan, Mark Rawlings, and a US citizen recently acquitted of bribery because he had offered the bribes at the behest of the CIA.

When the Ambassador arrived, Idenov was barking into his cell phone, “Mark, Mark, stop the excuses! Mark, listen to me! Mark, shut up right now and do as I say! Bring the letter to my office at 10:00 pm, and we will go together to take it to (Minister of Energy and Mineral Resources, MEMR) Mynbayev at his house.” On ending the call, Idenov explained he was talking to British Gas (BG) Country Director for Kazakhstan Mark Rawlings who had missed the deadline to deliver a letter about arbitration on the Karachaganak super-giant oil-field project (reftel). Still clearly steamed, Idenov alleged, “He’s still playing games with Mercator’s James Giffin,” the notorious AmCit fixer indicted for large-scale bribery on oil deals in the 1990s, whose case drags on in the Southern District Court of New York. “I tell him, ‘Mark, stop being an idiot! Stop tempting fate! Stop communicating with an indicted criminal!'” Idenov asked, “Do you know how much he (Rawlings) makes? $72,000 a month! A month!! Plus benefits! Plus bonuses! Lives in Switzerland but supposedly works in London. Comes here once a month to check in. Nice life, huh?”

As Shamir explains in his article, Giffen was ultimately hailed as a patriot by the judge who dismissed most of the Foreign Corrupt Practices Act charges against him in November 2010 (that is, ten months after this cable was written, and around the same time the US signed a new airspace deal with Kazakhstan). Main Justice provides background of how State Department considerations–they didn’t want prosecutors to mention that President Nazarbayev was the recipient of the bribes Giffen was alleged to have arranged–and CIA stonewalling–they refused to provide the details of what Giffen claimed was his role in their “intelligence collecting” operations–led to the dismissal of most of the charges.

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Redefining Security

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Joe Biden finally endorsed yesterday what the imperialists in DC have long been backing: an open-ended presence in Afghanistan.

“It is not our intention to govern or to nation-build,” Mr Biden said. “As President Karzai often points out, this is the responsibility of the Afghan people, and they are fully capable of it.”

But he stressed that the United States would continue to assist the Afghan government.

“If the Afghan people want it, we won’t leave in 2014,” Mr Biden said.

Meanwhile, Lester Brown uses the last paragraph of a piece on the coming food riots to point out how out-dated our empire–the decision-making that will lead us to stay in Afghanistan until we go broke–is.

As the new year begins, the price of wheat is setting an all-time high in the United Kingdom. Food riots are spreading across Algeria. Russia is importing grain to sustain its cattle herds until spring grazing begins. India is wrestling with an 18-percent annual food inflation rate, sparking protests. China is looking abroad for potentially massive quantities of wheat and corn. The Mexican government is buying corn futures to avoid unmanageable tortilla price rises. And on January 5, the U.N. Food and Agricultural organization announced that its food price index for December hit an all-time high.

But whereas in years past, it’s been weather that has caused a spike in commodities prices, now it’s trends on both sides of the food supply/demand equation that are driving up prices. On the demand side, the culprits are population growth, rising affluence, and the use of grain to fuel cars. On the supply side: soil erosion, aquifer depletion, the loss of cropland to nonfarm uses, the diversion of irrigation water to cities, the plateauing of crop yields in agriculturally advanced countries, and — due to climate change — crop-withering heat waves and melting mountain glaciers and ice sheets. These climate-related trends seem destined to take a far greater toll in the future.

[snip]

The unrest of these past few weeks is just the beginning. It is no longer conflict between heavily armed superpowers, but rather spreading food shortages and rising food prices — and the political turmoil this would lead to — that threatens our global future. Unless governments quickly redefine security and shift expenditures from military uses to investing in climate change mitigation, water efficiency, soil conservation, and population stabilization, the world will in all likelihood be facing a future with both more climate instability and food price volatility. If business as usual continues, food prices will only trend upward.

Note, I think Brown misses one cause of the food shortages: the treatment of food and commodities used in its production as one more thing our banksters can bet on at their casino.

But his point stands: probably the two biggest threats to our country are–first–climate change and–second–the refusal to fix the global economy the banksters broke. Yet we’re continuing to pour our dollars into Afghanistan, and to pour it into efforts that may well just exacerbate the violence.

A McClatchy story written by Medill graduate students shows how badly our own “security” establishment responds to such non-military threats.

Yet the U.S. government is ill-prepared to act on climate changes that are coming faster than anticipated and threaten to bring instability to places of U.S. national interest, interviews with several dozen current and former officials and outside experts and a review of two decades’ worth of government reports indicate.

Climate projections lack crucial detail, they say, and information about how people react to changes — for instance, by migrating — is sparse. Military officials say they don’t yet have the intelligence they need in order to prepare for what might come.

Rolf Mowatt-Larssen, a 23-year veteran of the CIA who led the Department of Energy’s intelligence unit from 2005 to 2008, said the intelligence community simply wasn’t set up to deal with a problem such as climate change that wasn’t about stealing secrets.

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Did John Brennan Have a Role in DOJ’s Decision to Prosecute Jeffrey Sterling?

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John Brennan apparently plays an interesting role in the events surrounding Jeffrey Sterling, whom DOJ indicted for allegedly leaking details of the MERLIN program to James Risen.

James Risen first wrote about Sterling–profiling his employment discrimination suit–in March 2002. In it, Risen quotes then CIA Deputy Executive Director John Brennan, denying that Sterling was dismissed because he is black.

John Brennan, the deputy executive director of the agency who met Mr. Sterling several times about his case, said there was no evidence that racial discrimination had caused his problems.

”It was an unfortunate situation,” Mr. Brennan said, ”because Jeffrey was a talented officer and had a lot of the skills we are looking for, and we wanted him to succeed.

”We were quite pleased with Jeffrey’s performance in a number of areas. Unfortunately, there were some areas of his work and development that needed some improvement.”

Now Brennan’s role in negotiating with Sterling on the discrimination claims already provides one reason why Brennan might have a personal interest in seeing DOJ renew its pursuit of Sterling.

But there’s another: to go after Risen personally.

After all, whatever role Brennan had in Sterling’s discrimination suit, there’s no reason to believe it put Brennan at legal risk.

But Risen’s other big scoop in State of War did.

As I have shown, for at least a year, John Brennan was in charge of the process that picked who Dick Cheney would wiretap in his illegal domestic surveillance program.

Brennan appears to have overseen the units that conducted the threat assessments that were a key part of the illegal program from May 2003 at least until August 2004, and possibly up until he left ODNI in December 2005, just days before the NYT broke this story.For at least a year and possibly two, John Brennan appears to have been the guy inventing “reasonable cause” to wiretap people in the United States. John Brennan was also likely the guy who put together the list of groups considered al Qaeda affiliates (including al-Haramain) that could be wiretapped.

Of particular note, Brennan was in charge of this process when, after March 11, 2004, it operated without DOJ sanction, the time when it had the least legal cover (and the time period for which al-Haramain has proof they were illegally wiretapped). John Brennan is an accessory (at least) to violating FISA and other laws prohibiting domestic surveillance (including the part of 2004’s DOD appropriation bill that prohibited data mining of Americans).

And Risen’s reporting is what has ultimately led to the (very limited) exposure of Brennan’s role in the illegal wiretapping of Americans.

Mind you, the Deputy National Security Advisor probably shouldn’t be telling DOJ whom to investigate or not–particularly not if he’s trying to retaliate for the exposure of his own illegal actions. But he seems to have been right in the mix on the White House’s involvement in DOJ’s decisions on torture.

So did DOJ pursue this case so intently–as opposed to, say, torture and illegal wiretapping–at the direction of the White House?

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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 →

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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.

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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.”

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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.

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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?

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