The Incredible Disappearing PFIAB

/32 Comments/in , /by

Smintheus provides a good background on Bush’s Executive Order to gut PFIAB (h/t scribe).

On Friday afternoon the White House posted without fanfare a new Executive Order that revamps an important though little known intelligence board. There are a few minor changes, but the most radical revision appears to be that the board has now been stripped of nearly all its powers to investigate and check illegal intelligence activities. It’s difficult to see what legitimate reasons there could have been for gutting the oversight activities of the board in this way, and the WH has not explained the changes.

[snip]

The newly revised IOB is much more passive. Gone is the duty to review agency guidelines regarding illegal intelligence activities. Gone is the duty to hold accountable the intelligence watchdog offices, such as inspectors general, who are supposed to serve as a bulwark against illegal activities.

Gone is the duty ("shall…forward") to take illegal activities directly to the Attorney General.

I wanted to add just a few details of context.

First, recall that the referrals by IOB–and the absence of any response to such referrals–got Alberto Gonzales in trouble.

In 2005, Gonzales had assured Congress there were no violations of privacy associated with the PATRIOT Act. But last year it became clear that Gonzales received reports of at least six violations.

As he sought to renew the USA Patriot Act two years ago, Attorney General Alberto R. Gonzales assured lawmakers that the FBI had not abused its potent new terrorism-fighting powers. "There has not been one verified case of civil liberties abuse," Gonzales told senators on April 27, 2005.

Six days earlier, the FBI sent Gonzales a copy of a report that said its agents had obtained personal information that they were not entitled to have. It was one of at least half a dozen reports of legal or procedural violations that Gonzales received in the three months before he made his statement to the Senate intelligence committee, according to internal FBI documents released under the Freedom of Information Act.

When cornered on his lie, Gonzales invented some mumbo jumbo about how violations that get reported to the IOB aren’t really violations.

Read more →

Taliban Cells and Cables

/77 Comments/in , , /by

I’m not really sure if these dots connect at all, but let me point them out and have the tech wizards rip me to shreds.

On January 31, two telecom cables lines to Egypt went out. The countries that were most affected, by far, by the cuts were Egypt and Pakistan–with Pakistan losing over 70% of its connectivity. Cables continued to go down around the Middle East; eventually, a UN official conceded the outages may have been intentional.

Today, Noah Shachtman reports that the Taliban in Afghanistan are threatening to take out cell phone towers if the providers don’t turn them off for ten hours every night.

Taliban militants threatened Monday to blow up telecom towers across Afghanistan if mobile phone companies do not switch off their signals for 10 hours starting at dusk.

Taliban spokesman Zabiullah Mujaheed said the U.S. and other foreign troops in the country are using mobile phone signals to track down the insurgents and launch attacks against them.

The AP notes that Afghanistan’s cell network went in since our 2001 invasion, so presumably the connectivity to the country, like that in Iraq, is largely under US control. That is, as insurgents in Iraq are doing, you’d have to blow the towers to cut their connectivity.

Shachtman goes on to note that the Taliban have a point.

Without getting into specifics, let me say that Mujaheed’s concern is eminently reasonable. Former Royal Navy sailor Lew Page notes:

The mobile companies have long been thought by the Taliban to be colluding with NATO and Coalition forces operating in Afghanistan, and in fact it would be surprising if they weren’t. The Afghan government is heavily dependent on the international troops. Use of the mobile networks for intelligence is an obvious step which is well-nigh certain to have been taken, just as governments have done in every country. And it’s well known that masts can be used to locate a phone which is powered up.

What’s less clear is why the Taliban have chosen to demand a shutdown of mast signals at night. Even the most paranoid phone-security advisers would normally suggest taking the battery out of one’s phone, rather than menacing local cell operators unless they went off the air. (The idea of removing the battery is to guard against someone having modified the phone to switch itself on without the owner’s knowledge.)

Read more →

The Pointy End of a Dull Spear

/40 Comments/in , /by

The NYT has a fascinating profile of Jose Rodriguez–the guy who ordered the destruction of the CIA torture tapes. This anecdote conveys the kind of guy we’re dealing with:

Not long after the tapes were destroyed, Mr. Goss held a management retreat for top agency officials meant in part to soothe tensions among the agency’s dueling branches. There the deputy director for intelligence — the head of analysis — complained openly about the arrogance of the clandestine branch and said undercover officers thought they could get away with anything.

That was too much for Mr. Rodriguez. He stood up in the room, according to one participant in the meeting, and shouted in coarse language that the analysis chief should “wake up and smell the coffee,” because undercover officers were at the “pointy end of the spear.”

The clandestine branch, Mr. Rodriguez was making it clear, would do what it wanted.

While the profile doesn’t offer much new in the story of the torture tapes (though it does provide a more compelling case that Goss couldn’t control Rodriguez than I’ve previously seen), I’m most interested that Rodriguez apparently prevented any accountability for those who conducted the pathetically incompetent kidnapping of Abu Omar.

It would become known inside the Central Intelligence Agency as “the Italian job,” a snide movie reference to the bungling performance of an agency team that snatched a radical Muslim cleric from the streets of Milan in 2003 and flew him to Egypt — a case that led to criminal charges in Italy against 26 Americans.

Porter J. Goss, the C.I.A. director in 2005 when embarrassing news reports about the operation broke, asked the agency’s independent inspector general to start a review of amateurish tradecraft in the case, like operatives staying in five-star hotels and using traceable credit cards and cellphones.

But Jose A. Rodriguez Jr., now the central figure in a controversy over destroyed C.I.A. interrogation tapes, fought back. A blunt-spoken Puerto Rico native and former head of the agency’s Latin America division, he had been selected by Mr. Goss months earlier to head the agency’s troubled clandestine branch. Mr. Rodriguez told his boss that no inspector general review would be necessary — his service would investigate itself.

Read more →

Or Maybe Those Cables WERE Cut

/52 Comments/in , /by

Remember those four five six who knows how many telecom cables to the Middle East and South Asia that were cut? Ryan Singel finds a UN official suggesting at least four of them may well have been cut intentionally.

The five underseas cables that were cut or went out of service in the Middle East in recent weeks might have been sabotaged, an officer at the International Telecommunication Union told the Agence France-Presse.

"We do not want to preempt the results of ongoing investigations, but we do not rule out that a deliberate act of sabotage caused the damage to the undersea cables over two weeks ago," the UN agency’s head of development, Sami al-Murshed, told AFP.[…]

Some experts doubt the prevailing view that the cables were cut by accident, especially as the cables lie at great depths under the sea and are not passed over by ships," Murshed said on the sidelines of a conference on cyber-crime held in Gulf state of Qatar.

(I don’t know if this is his source, but it’ll suffice for a link.)

Let’s see. Since the cables were cut, Hamas agreed to close up its borders with Egypt, Pakistan’s rigged election wasn’t rigged enough to save Musharraf, and the Saudi Foreign Minister has been on a "for your ears only" tour around the world. Any of those look like probable explanations?

Shorter WSJ: George Bush Is Irrelevant and So Is McCain

/20 Comments/in , /by

This WSJ editorial beating up on Dems for their shiny new FISA spine is full of the illogical blathering you’d expect. Take this paragraph, which claims that even with immunity from PAA and even with a FISA court order, the telecoms simply won’t do as they’re mandated to do.

Mr. Reyes claims that existing wiretap orders can stay in place for a year. But that doesn’t account for new targets, which may require new kinds of telecom cooperation and thus a new court order. Mr. Reyes can make all the assertions he wants about immunity, but they are no defense against a lawsuit. For that matter, without a statute in place, even a renewed order by the Foreign Intelligence Surveillance Court is likely to be challenged as illegitimate. A telecom CEO who cooperates without a court order is all but guaranteed to get not merely a wiretap lawsuit, but also a shareholder suit for putting the company at legal risk.

Apparently, the WSJ believes that even if the telecoms have immunity, it’s no defense against a lawsuit (someone better tell Mitch and Mike McConnell that all their immunity efforts are for naught). And even if the FISA Court issues a warrant under that statute known as "FISA," the telecoms would regard such an order as illegitimate, because there’s no statute supporting it.

And of course, the WSJ parrots the now mandatory claim that ACLU and EFF are really trial lawyers wearing low-paying disguises.

So instead they’re trying to do it through the backdoor by unleashing the trial bar to punish the telephone companies.

I’m most amused, though, by the closing paragraph, which gets to the heart of the panic over FISA.

Mr. Bush has been doing his part in this debate, but his political capital is waning. The Republican who needs to make himself heard now is John McCain. The Arizona Senator is voting the right way, but he seems curiously disengaged from a debate that plays to his national security strengths. The time to speak up is before the next 9/11 Commission. [my emphasis]

Bush’s "political capital is waning" must be GOP-speak for "don’t look now because the Democrats have stood up to Bush."  And, pathetically, the WSJ whines that John McCain isn’t cowering Democrats into unquestioning obedience, either.

It’s like flying without a net, isn’t it, WSJ? When you can’t rely on Bush’s "political capital" to cow others into compliance?

Don’t Cry For The Telcos – Bush & Cheney Are The Only Ones That Are Dying For Immunity

/80 Comments/in , , , , , /by

The issues surrounding the FISA legislation are still roiling in Congress, thanks to the sudden appearance of a spine and principle by the Democrats in the House of Representatives (and correspondingly, with no thanks to the spineless and craven counterparts in the Senate, especially Jello Jay Rockefeller, the SSCI, and Harry Reid for bringing the horrid Intel committee bill to the floor instead of the far superior Judiciary bill). The most contentious issue has been, and continues to be, the proposed retroactive immunity for telco companies. Since the ugly head of the issue was first raised last summer with the railroaded passage of the Protect America Act, I have been arguing vehemently that the telcos are not in any grave danger financially from the civil suits currently pending. If their conduct is as has been described to date, they are already protected from liability for the actions that have been described, both by existing statutory immunity and by a right to indemnification from the government. The full court press for immunity by the Administration is entirely about cover for the lawless Bush Administration, and not about the impending financial demise of the telcos.

This post will go back over some of the basis for my argument that has been laid out previously, both here at Emptywheel and, earlier, at The Next Hurrah. I will also try to relate a few basics on what the general concept of indemnification is, and how it relates to contracts, in this case the agreements between the telcos and the Bush Administration. I have been making this argument for quite some time now, since last August, and have yet to have anybody put a significant dent in it; but it is no good if it cannot hold up to scrutiny. In that regard, I have posited my theory to several other lawyers expert in the field of governmental/Fourth Amendment litigation, including some extremely knowledgeable on the very civil suits at issue here, and all have agreed with the validity of my premise.

The Argument: The Bush Administration, with the help of telco providers (telelphone, cellphone, internet and other communication providers) engaged in massive wiretapping and datamining efforts, ostensibly to protect the United States from attack by terrorists. The legality of much of these programs has been questioned in many fora, but the germane ones for the immunity demand by the Administration are the civil suits that have been filed against both Read more →

FISA and the Warrantless Wiretap Briefings

/76 Comments/in , /by

As we await certain doom because the NSA has to rely on FISA to authorize any new warrantless wiretaps (though it can continue all the programs currently in place), I wanted to correct what appears to be a common mistake about the earlier warrantless wiretap program. I’ve seen a lot of people claim that all of Congress knew of the program, that the Gang of Eight got regular briefings about it, that Congress wants the telecoms to get immunity because leaders in Congress want immunity.

The reality–at least according to the published record of those briefed on Bush’s warrantless wiretap program–is much more narrow. And as this fight moves into the House, it’d pay to have a clear understanding of who got briefed and how they claimed to have responded.

The Gang of Eight was not briefed regularly on the program

Kit Bond likes to claim that the Gang of Eight–the majority and minority leaders of both houses of Congress and the majority and minority leaders of both intelligence committees–were briefed on the program. That’s a lie. In general, the Administration briefed the intelligence committee heads, but not the Majority and Minority leaders. The first time the entire Gang of Eight was briefed on the program was when, on March 10, 2004, the Administration tried to get them to authorize continuing the program even though Jim Comey said it was illegal. At the time, the following were members of the Gang of Eight:

  • Denny Hastert
  • Bill Frist
  • Tom Daschle
  • Nancy Pelosi
  • Porter Goss
  • Jane Harman
  • Pat Roberts
  • Jello Jay Rockefeller

After Harry Reid became Minority Leader of the Senate in 2005, he received a briefing on February 3, 2005–by himself, as did Crazy Pete Hoekstra when he became HPSCI Chair in September 2004. There was not any other briefing where the entire Gang of Eight got the same briefing. Though after Risen and Lichtblau exposed the program, Jello Jay received a briefing with the Republican half of the Gang of Eight, and then Reid, Pelosi, and Harman received a briefing (which Roberts also attended).

As Arlen “Scottish Haggis” Specter has pointed out, the Administration was in violation of the National Security Act when, with the exception of March 10, 2004, it limited its briefings to just the intelligence committee heads.

Read more →

Technical Glitches and Minimization

/44 Comments/in , , /by

A number of you sent me this Eric Lichtblau story describing how, because of a "technical glitch," the FBI accidentally got all the emails going to one domain, rather than just the emails to and from their particular target.

A technical glitch gave the F.B.I. access to the e-mail messages from an entire computer network — perhaps hundreds of accounts or more — instead of simply the lone e-mail address that was approved by a secret intelligence court as part of a national security investigation, according to an internal report of the 2006 episode.

F.B.I. officials blamed an “apparent miscommunication” with the unnamed Internet provider, which mistakenly turned over all the e-mail from a small e-mail domain for which it served as host. The records were ultimately destroyed, officials said.

Bureau officials noticed a “surge” in the e-mail activity they were monitoring and realized that the provider had mistakenly set its filtering equipment to trap far more data than a judge had actually authorized.

The episode is an unusual example of what has become a regular if little-noticed occurrence, as American officials have expanded their technological tools: government officials, or the private companies they rely on for surveillance operations, sometimes foul up their instructions about what they can and cannot collect.

The problem has received no discussion as part of the fierce debate in Congress about whether to expand the government’s wiretapping authorities and give legal immunity to private telecommunications companies that have helped in those operations.

But an intelligence official, who spoke on condition of anonymity because surveillance operations are classified, said: “It’s inevitable that these things will happen. It’s not weekly, but it’s common.”

My response to this is sort of similar to Kagro X’s (and given all my posts about minimization, I would certainly take issue with Lichtblau’s assertion that "the problem has received no discussion"). This story illustrates why minimization is every bit as important in the FISA discussion as immunity.

Hmm. Minimization. That rings a bell. What was it?

Oh yeah! The FISA fight in the Senate! Minimization was a concern because the Senate bill pretty much gave the government a free hand to suck up every phone call, e-mail, text message, etc. there is, and — amazingly enough — had to be amended on the floor in order to even approach a proper handling of minimization concerns. Read more →

A $40 Million “Comedic Gold” Pissing Contest with the Chinese

/39 Comments/in , /by

Yesterday, Danger Room reported that the Administration’s rationale for shooting down the rogue spy satellite is laughingly bogus.

The Pentagon says it has to shoot down a malfunctioning spy satellite because of the threat of a toxic gas cloud. Space security experts are calling the rationale highly unlikely. "Having the US government spend millions of dollars to destroy a billion-dollar failure to save zero lives is comedic gold," one tells DANGER ROOM.

[snip]

So what could that other reason be?

Our veteran space security specialist believes there are several. To him, the satellite shot is a chance for the military to try out its missile defense capabilities; a way to keep secret material out of the wrong hands; and a warning to the Chinese, after they destroyed a satellite about a year ago. He shared some educated guesses:

My first thought is that MDA [Missile Defense Agency] is always looking for ways to pimp their systems and provide further justification that they work. The upcoming change in Administration is almost guaranteed to result in missile defense losing the top-level advocacy that it has enjoyed for the last several years. Any additional missions and justifications that the missile defense community can provide would increase the likelihood of their systems (and budgetary power) surviving.

An additional reason could be that destroying the satellite would prevent any chance of another nation getting access to any of the potentially sensitive technology on board. However, I have heard from other sources that supposedly the NRO [National Reconnaissance Office – the country’s spy satellite shop] is actually against the "shootdown" (and I hate that term – the satellite is not flying and is coming down regardless of whether or not it gets hit by a missile). Their absence at the press briefing could lend some weight to this rumor, although it could also be explained by the nature of the satellite and its still classified link to the NRO.

My real concern is that this is simply a knee-jerk reaction made by the Administration in response to the purported threat by the Chinese. Since the April 2007 ASAT [anti-satellite] test, there have been rumors and whispers going around that the Administration and like-minded individuals are looking for more sticks (instead of carrots) to use against China. Read more →

AJ Rossmiller: Why Bloggers Are Better Informed than Condi Rice

/13 Comments/in /by

still-broken.jpgAJ Rossmiller (of AmericaBlog fame) nailed the results of the 2005 Iraqi election. You might recall that as the election where, after it had long become clear Ahmad Chalabi had little base of support in Iraq, some anonymous sources in the Administration nevertheless had great hopes that somehow Chalabi might end up as Prime Minister.

Though he lacks any mass appeal, some U.S. diplomats even cite the secular Shi’ite as a possible compromise candidate for prime minister in a coalition government.

But Chalabi won just .5% of the vote. Iyad Allawi, in whom the Administration also invested their hopes, won just 8% of the vote. And the Shiite coalition dominated by SCIRI and the Sadrists got 41% of the votes. In his book, Still Broken, AJ describes that he saw this coming.

After Iraq’s winter elections, the results validated the predictions contained in the paper I’d written in the fall. It created something of a stir because the paper turned out to be remarkably accurate, far more so than the forecasts of other agencies and departments. Before the election occurred, a high-ranking official requested a follow-up evaluation of our assessments, and I wrote a memo that described our precision. The memo made its way up through the chain, and a few days later the office got a note from Stephen Cambone, the Undersecretary of Defense for Intelligence, praising both the prediction and the self-evaluation.

Unfortunately, the bulk of the last half of AJ’s book describes how such accurate predictions are generally weeded out by higher-ranking analysts worried that their office’s work product might piss off the Administration. For example, AJ describes some of the conversations leading up to the election (edited to take out classified information), where people argued against his analysis because it didn’t accord with that of other intelligence agencies.

"You’re being too pessimistic. [The secularists] are gaining strength."

"There’s no way Iraqis will vote for [those in power] again. We can’t pass this up the chain."

"[Other agencies] are predicting something totally different and we need to make sure we’re not too far off message with this."

Read more →