Spying on Americans: A “Team Sport” Since 2004

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Screen shot 2013-07-11 at 6.25.06 PMOne of the more colorful revelations in today’s Guardian scoop is the newsletter piece that describes increased sharing of PRISM (Section 702) data with FBI and CIA.

The information the NSA collects from Prism is routinely shared with both the FBI and CIA. A 3 August 2012 newsletter describes how the NSA has recently expanded sharing with the other two agencies.

The NSA, the entry reveals, has even automated the sharing of aspects of Prism, using software that “enables our partners to see which selectors [search terms] the National Security Agency has tasked to Prism”.

The document continues: “The FBI and CIA then can request a copy ofPrism collection of any selector…” As a result, the author notes: “these two activities underscore the point that Prism is a team sport!”

But that’s something that has actually been built into the program for years. While the Joint IG Report on the illegal wiretap program claimed,

NSA also was responsible for conducting the actual collection of information under the PSP and disseminating intelligence reports to other agencies such as the Federal Bureau of Investigation (FBI), the Central Intelligence Agency (CIA), and the Office of the Director of National Intelligence (ODNI) National Counterterrorism Center (NCTC) for analysis and possible investigation.

The Draft NSA IG Report explained,

Coordination with FBI and CIA. By 2004, four FBI integrees and two CIA integrees, operating under SIGINT authorities in accordance with written agreements, were co-located with NSA PSP-cleared analysts. The purpose of co-locating these individuals was to improve collaborative analytic efforts.

And the minimization procedures released by the Guardian (which date to 2009), make it clear NSA can provided unminimized content to CIA and FBI on whatever selectors they request.

6(c)

(1) NSA may provide to the Central Intelligence Agency (CIA) unminimized communications acquired pursuant to section 702 of the Act. CIA will identify to NSA targets for which NSA may provide unminimized communications to CIA. CIA will process any such unminimized communications received from NSA in accordance with CIA minimization procedures adopted by the Attorney General, in consultation with the Director of National Intelligence, pursuant to subsection 702(e) of the Act.

(2) NSA may provide to the FBI unminimized communications acquired pursuant to section 702 of the Act. FBI will identify to NSA targets for which NSA may provide unminimized communications to the FBI. FBI will process any such unminimized communications received from NSA in accordance with FBI minimization procedures  adopted by the Attorney General, in consultation with the Director of National Intelligence, pursuant to subsection 702(e) of the Act.

And none of that should be surprising, given the tasking slide — above — that was first published by the WaPo. FBI, at least, is solidly in the midst of this collection, for a program deemed to be foreign intelligence collection.

There have been a variety of claims about all this team sport participation. But I’m not convinced any of them explain how all this works.

And in perhaps related news, the Fifth Circuit today said that Nidal Hasan could not have access to the FISA material on him, in spite of the fact that William Webster published a 150 page report on it last year. Legally, that material should be utterly distinct from PRISM, since a wiretap on Anwar al-Awlaki would require a specific FISA warrant (and the latest Guardian scoop refers to expanded cooperation since 2012). But I suspect the reason Hasan, the FISA evidence against whom has already been extensively discussed, can’t see it is because we would see what this actually looks like from the FBI side.

DOJ has to protect its team, you know.

“Is This the New Espionage?” CBS Asks of Leaking Government Files, While Airing Leaked Government Video

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“Is this the new espionage,” CBS asks, “the spy who believes, for the good of his country, he must reveal its secrets?”

CBS then chooses to give former NSA Director Michael Hayden — who oversaw the NSA when it engaged in an unprecedented illegal surveillance program — airtime to ask,

What kind of sense of moral superiority does it take, to feel like your moral judgment trumps the moral judgment of not one but two Presidents, both houses of Congress, and bipartisan majorities, the American court system, and 35,000 of your coworkers at the NSA?

Congratulations to CBS for at least visually tying Hayden to his gravy train at Chertoff Group, a firm associated with profiting off of “security solutions” (like Rapiscan) that end up being too costly and ineffective.

Hayden then tries to get in the head of Bradley Manning and Edward Snowden.

These two most recent cases — Private Manning and Mr. Snowden — they’re a bit different. They’re probably doing it for ideology and almost this romantic, absolute commitment to transparency.

I’ll come back to Hayden and his very amusing outrage in a second.

But did you notice what else CBS did in this clip?

They aired a leaked CIA/FBI film produced as part of Obama’s Insider Threat program, the program that also pushes government employees to spy on their coworkers.

And while CBS later admits, several minutes into this clip, that Snowden “is not a spy,” it sure seems funny for them for have first asked if leaking spy agency materials is “the new Espionage” in a piece that itself airs leaked spy agency material.

You’d think the obvious conclusion would be that Snowden’s action is the old journalism?

So back to Michael Hayden.

CBS barely discusses the law in this clip. I mean, sure, they talk about the convicted spies Robert Hanssen and Aldrich Ames and mention the law, Espionage. But they don’t mention FISA — one of several laws that Michael Hayden broke — nor do they mention war crimes that some of Bradley Manning’s disclosures revealed.

Which is sort of odd given that according to these whistleblowers’ own descriptions of their motives, both men talked about the laws they at least perceived their government to be grossly violating. (And the Draft NSA IG Report Snowden leaked provides more details on Hayden’s unpunished crimes than we’ve gotten before.)

By the way, when Hayden claims “the American court system” sides with him? He forgets Vaughn Walker’s ruling that, in fact, the government had illegally wiretapped al-Haramain during that window when Hayden agreed to continue the program even though the Acting Attorney General Jim Comey had deemed it illegal.

CBS decided to invite a criminal, Michael Hayden, on to attack the actions of a man who had provided the public additional evidence of his crimes. The clip ends with Hayden warning about how much more empowered insider threats are.

What is new that in this modern connected era the trusted insider who betrays us is far more empowered to do damage far greater than these kinds of folks were able to do in the past and so we just have to be more vigilant.

Perhaps the question we ought to be asking is not “is this the new espionage” but “who is the greater insider threat risk, Edward Snowden or Michael Hayden?”

US Big-Footing Extraterritoriality Again

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The Irish High Court has rejected the request for an arrest warrant for Edward Snowden. While most aspects of the request were in order — the timing of the alleged crimes, Snowden’s role in them — the US somehow neglected to mention where the alleged crimes had occurred. And that’s a problem because if stealing and leaking outside of Ireland is not an Irish crime, Ireland wouldn’t be able to extradite Snowden if he allegedly stole and leaked documents in outside of the US.

Judge Mac Eochaidh said he was satisfied that the US request met a number of the conditions set out in the relevant act for him to grant the arrest warrant. These included the fact it set out the time when the alleged offences took place, the circumstances in which the offences were committed and the degree of involvement of Mr Snowden in the commission of the alleged offences.

However, the judge observed that the request did not state where the offences actually took place – a condition that must be met by such applications.

“The question of where the offence took place is not a minor detail but is a matter which could have very serious consequences in any further stage that might be reached in an extradition process,” the judge wrote.

“That is because if it is the case that the offences took place outside of the territory of the United States of America, the question will arise as to whether there is extraterritorial effect in respect of the US offences, but more importantly, whether the Irish equivalent offences have an extraterritorial effect or aspect to them.”

He continued: “There would need to be sufficient similarity between the two offences in order for there to be an extradition.”

Presumably, the US will come back and say that Snowden stole documents, at least, in Hawaii, and therefore within the US, even if he didn’t leak them until he got to Hong Kong. Unless, of course, revealing what their contractor-hacker was allowed to do with data would get awkward for the US.

Still, given the way the US loves to big-foot extraterritoriality (including in the Viktor Bout case), you have to wonder whether they knew this would be a problem and tried to just ignore silly things like jurisdiction.

On the Meanings of “Dishonor” and “Hack”

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The former NSA IG (and current affiliate of the Chertoff Group profiteers, though he didn’t disclose that financial interest) Joel Brenner has taken to the pages of Lawfare to suggest anyone trying to force some truth out of top Intelligence Community officials is dishonorable.

On March 12 of this year, Senator Ron Wyden asked James Clapper, the director of national intelligence, whether the National Security Agency gathers “any type of data at all on millions or hundreds of millions of Americans.”

“No, sir,” replied the director, visibly annoyed. “Not wittingly.”

Wyden is a member of the Senate Select Committee on Intelligence and had long known about the court-approved metadata program that has since become public knowledge. He knew Clapper’s answer was incorrect. But Wyden, like Clapper, was also under an oath not to divulge the story. In posing this question, he knew Clapper would have to breach his oath of secrecy, lie, prevaricate, or decline to reply except in executive session—a tactic that would implicitly have divulged the secret. The committee chairman, Senator Diane Feinstein, may have known what Wyden had in mind. In opening the hearing she reminded senators it would be followed by a closed session and said,  “I’ll ask that members refrain from asking questions here that have classified answers.” Not dissuaded, Wyden sandbagged he [sic] director.

This was a vicious tactic, regardless of what you think of the later Snowden disclosures. Wyden learned nothing, the public learned nothing, and an honest and unusually forthright public servant has had his credibility trashed.

Brenner of course doesn’t mention that Clapper had had warning of this question, so should have provided a better non-answer. Later in his post, he understates how revealing telephone metadata can be (and of course doesn’t mention it can also include location). He even misstates how often the phone metadata collection has been queried (it was queried on 300 selectors, not “accessed only 300 times”).

But the really hackish part of his argument is in pretending this whole exchange started on March 12.

It didn’t. It started over a year ago and continued through last week when Keith Alexander had to withdraw a “fact sheet” purporting to lay out the “Section 702 protections” Americans enjoy (see below for links to these exchanges).

The exchange didn’t start out very well, with two Inspectors General working to ensure that Wyden and Mark Udall would not get their unclassified non-answer about how many Americans are surveilled under Section 702’s back door until after the Intelligence Committee marked up the bill.

But perhaps the signature exchange was this October 10, 2012 Wyden letter (with 3 other Senators) to Keith Alexander and Alexander’s November 5, 2012 response.

On July 27, 2012, Alexander put on a jeans-and-t-shirt costume and went to DefCon to suck up to hackers. After giving a schmaltzy speech including lines like, “we can protect the networks and have civil liberties and privacy,” DefCon founder Jeff Moss asked Alexander about recent Bill Binney allegations that the NSA was collecting communications of all Americans. Wired reported the exchange here.

It was this exchange — Keith Alexander’s choice to make unclassified statements to a bunch of hackers he was trying to suck up to — that underlies Wyden’s question. And Wyden explicitly invoked Alexander’s comments in his March 12 question to Clapper.

In Wyden’s letter, he quoted this, from Alexander.

We may, incidentally, in targeting a bad guy hit on somebody from a good guy, because there’s a discussion there. We have requirements from the FISA Court and the Attorney General to minimize that, which means nobody else can see it unless there’s a crime that’s been committed.

Wyden then noted,

We believe that this statement incorrectly characterized the minimization requirements that apply to the NSA’s FISA Amendments Act collection, and portrays privacy protections for Americans’ communications as being stronger than they actually are.

This is almost precisely the exchange that occurred last week, when Wyden and Udall had to correct Alexander’s public lies about Section 702 protections again. 8 months later and Alexander is reverting to the same lies about protections for US Persons.

In the letter, Wyden quoted from Alexander again,

You also stated, in response to the same question, that “…the story that we have millions or hundreds of millions of dossiers on people is absolutely false. We are not entirely clear what the term “dossier” means in this context, so we would appreciate it if you would clarify this remark.

And asked,

Are you certain that the number of American communications collected is not “millions or hundreds of millions”? If so, then clearly you must have some ability to estimate the scale of this number, at least some range in which you believe it falls. If this is the case, how large could this number possibly be? How small could it possibly be?

Does the NSA collect any type of data at all on “millions or hundreds of millions of Americans”?

This last question was precisely the question Wyden asked Clapper 5 months later on March 12 (Alexander’s response in November didn’t even acknowledge this question — he just blew it off entirely).

As Wyden emphasized, Alexander is the one who chose to make misleading assertions in unclassified form, opening up the door for demands for an unclassified response.

Since you made your remarks in an unclassified forum, we would appreciate an unclassified response to these questions, so that your remarks can be properly understood by Congress and the public, and not interpreted in a misleading way.

In other words, Brenner presents the context of Wyden’s question to Clapper completely wrong. He pretends this exchange was about one cleared person setting up another cleared person to answer a question. But Brenner ignores (Wyden’s clear invocation of it notwithstanding) that this exchange started when a cleared person, General Alexander, chose to lie to the public.

And now that we’ve seen the minimization standards, we know just how egregious a lie Alexander told to the hackers at DefCon. It’s bad enough that Alexander didn’t admit that anything that might possibly have a foreign intelligence purpose could be kept and, potentially, disseminated, a fact that would affect all Americans’ communications.

But Alexander was talking to high level hackers, probably the group of civilians who encrypt their online communications more than any other.

And Alexander knows that the NSA keeps encrypted communications indefinitely, and with his say-so, can keep them even if they’re known to be entirely domestic communications.

In other words, in speaking to the group of American civilians whose communications probably get the least protections from NSA (aside from the encryption they themselves give it), Alexander suggested their communications would only be captured if they were talking to bad guys. But the NSA defines “those who encrypt their communications” as bad guys by default.

He was trying to suck up to the hackers, even as he lied about the degree to which NSA defines most of them as bad guys.

Brenner gets all upset about his colleagues being “forced” to lie in public. But that’s not what’s going on here: James Clapper and, especially, Keith Alexander are choosing to lie to the public.

And if it is vicious for an intelligence overseer to call IC officials on willful lies to the public, then we’ve got a very basic problem with democracy. Read more →

Alberto Gonzales and Internet Data Mining

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I was going to leave this speculation well enough alone. But George W Bush decided to interrupt his dog painting to defend Obama’s surveillance dragnet.

Bush also defended the surveillance program, which began during his administration after 9/11, saying the programs guarantee civil liberties are protected.

“I put the program in place to protect the country and one of the certainties is civil liberties were guaranteed,” Bush said.

So here goes.

In his book, Jack Goldsmith describes Alberto Gonzales siding against David Addington in a debate just once, only to have George Bush override the then White House Counsel.

Addington’s hard-line nonaccommodation stance always prevailed when the lawyers met to discuss legal policy issues in Alberto Gonzales’ office. During these meetings, Gonzales himself would sit quietly in his wing chair, occasionally asking questions but mostly listening as the querulous Addington did battle with whomever was seeking to “go soft.” It was Gonzales’ responsibility to determine what to advise the president after the lawyers had kicked the legal policy matters around. But I only knew him to disagree with Addington once, on an issue I cannot discuss, and on that issue the president overruled Gonzales and sided with the Addington position. [my emphasis]

The issue Goldsmith could not discuss could be torture or prisoner transfers or something entirely unknown, but the data mining at the heart of the hospital confrontation is clearly one candidate.

There’s no overt evidence Gonzales tried to do the right thing on the illegal surveillance program. After all, even after Bush agreed to put the program right on March 12, 2004, Gonzales still objected to Goldsmith and Jim Comey’s first advice on the program. After Goldsmith laid out his initial advice on March 15, Gonzales wrote a memo saying,

Your memorandum appears to have been based on a misunderstanding of the President’s expectations regarding the conduct of the Department of Justice. While the President was, and remains, interested in any thoughts the Department of Justice may have on alternative ways to achieve effectively the goals of the activities authorized by the Presidential Authorization of March 11, 2004, the President has addressed definitively for the Executive Branch in the Presidential Authorization the interpretation of the law.

This led Comey to write up his resignation letter on March 16. “[A]lthough I believe this has been one of [DOJ’s] finest hours, we have been unable to right that wrong.” Three days later, Bush modified his March 11 Authorization, directing NSA to stop collecting Internet metadata within a week.

Of course, three months later, the Administration resumed collection of Internet metadata using the FISC PR/TT order. That was within days of Goldsmith’s departure, though he had announced his departure a month earlier and Comey, obviously, stuck around for over a year longer.

So still no evidence the Internet data mining was the issue on which Gonzales tried to stand up to Addington.

But let’s jump ahead to the circumstances of Alberto Gonzales’ resignation in August 2007. At the time, his sudden and confusing resignation was attributed to the multiple scandals embroiling him — chiefly the US Attorney firing scandal, but also Gonzales’ Clapper-like lies about the illegal wiretap program before the Senate a month earlier. But for some reason, Gonzales did not benefit from the kind of sinecure every other former Bush official — even James Comey, who went to Lockheed — enjoyed upon departure, which you would have thought he’d get after lying to protect the President.

Then, a year after Gonzales’ departure, we learned that in the weeks before he resigned, White House Counsel Fred Fielding had narced him out for storing a bunch of Top Secret CYA documents in a briefcase in his closet. Read more →

James Clapper’s Double Super Secret Correction

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Screen shot 2013-07-01 at 9.21.55 AMIf the Director of National Intelligence corrects a lie but nobody hears it, does it make a sound?

Greg Miller returns focus to James Clapper and Keith Alexander and President Obama’s lies that underscore why, at least for some of his leaks, Edward Snowden must count as a whistleblower. He reveals two new details about why Clapper is not headed for prison.

First, Clapper claims his staffers acknowledged to Wyden (presumably not in writing) his error after the Senator demanded a correction.

Sen. Ron Wyden (D-Ore.), who had asked Clapper the question about information collection on Americans, said in a recent statement that the director had failed to clarify the remark promptly despite being asked to do so. Clapper disputed that in his note to the committee, saying his “staff acknowledged the error to Senator Wyden’s staff soon after the hearing.”

And then, more than two weeks after Snowden proved Clapper to be a liar (and 10 days after Wyden called for hearings for the Intelligence Committee to correct their disinformation), Clapper sent the Senate Intelligence Committee a letter apologizing for his “clearly erroneous” comment.

Acknowledging the “heated controversy” over his remark, Clapper sent a letter to the Senate Intelligence Committee on June 21 saying that he had misunderstood the question he had been asked.

“I have thought long and hard to re-create what went through my mind at the time,” Clapper said in the previously undisclosed letter. “My response was clearly erroneous — for which I apologize.” [my emphasis]

Miller also reveals that Clapper presented yet another explanation for why his lie wasn’t really a lie.

He made a new attempt to explain the exchange in his June 21 correspondence, which included a hand-written note to Wyden saying that an attached letter was addressed to the committee chairman but that he “wanted [Wyden] to see this first.”

Clapper said he thought Wyden was referring to NSA surveillance of e-mail traffic involving overseas targets, not the separate program in which the agency is authorized to collect records of Americans’ phone calls that include the numbers and duration of calls but not individuals’ names or the contents of their calls.

Referring to his appearances before Congress over several decades, Clapper concluded by saying that “mistakes will happen, and when I make one, I correct it.”

Note, this particular lie retreats to Administration claims that they no longer collect Internet metadata, at least no via Section 702 collection, at least as far as they’lll tell us.

Of course, that’s only been true (if it is in fact true) since 2011, for what that’s worth.

One thing Miller is missing in this otherwise laudable article is one more detail from Wyden: that he gave Clapper notice he was going to ask the question.

Clapper got the question for the test before taking it, and he still — he says — misunderstood it.

But of course that’s not what happened. The way Clapper has made false statements in public and then “acknowledged errors” in secret is all part of the game by which Clapper mostly sort of tells the truth to Congress, but continues to lie to the American people.

In other news, it has now been almost a week since, caught in another lie, the NSA took down their “Section 702 Protections” document, without replacing them with an accurate description of what  protections, if any, Americans have under Section 702.

Perhaps NSA has finally decided to start telling the truth?

After Khalid el-Masri, Details Like Snowden’s Middle Name Matter

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Anonymous (heh) DOJ officials have taken to the press to whine that Hong Kong delayed turning over Edward Joseph Snowden because the US got his true middle name, James, wrong (and once left it at “J”).

They scoffed at the middle name mixup. The initial provisional arrest warrant request only listed his name as Edward J Snowden, a senior U.S. law enforcement said.

“Is this the best they got?” the senior U.S. law enforcement official said.

A Justice Department spokeswoman said Mr. Snowden’s photo and videos were widely disseminated in the media. And when Hong Kong officials called the Justice Department to notify that he had left their territory, there was no doubt of his identity, the spokeswoman said.

“That Hong Kong would ask for more information about his identity demonstrates that it was simply trying to create a pretext for not acting on the provisional arrest request,” the spokeswoman said.

Back when my official ID read “Marcy” instead of my legal name, it caused all amounts of headache and delay getting on planes; I had to go through a tedious process to change it. And airlines now insist on my full middle name.

I’m not sure why DOJ thinks Snowden should be any different than every other American flier whose name must be correct before getting on a plane.

And in an international context, there’s an even bigger reason why any country would be crazy to hand over a person if the US couldn’t get his name right. German citizen Khalid el-Masri was kidnapped and tortured in Afghanistan for four years months [I regret this error] because the US government mistook him for a guy named Khalid al-Masri.

There was no telling who Hong Kong might have unintentionally turned over to an American black hole.

Once upon a time, sure, other countries might have been able to take us at our word on something like this. But not only do we insist on even higher accuracy from their citizens when they come to the US than the US does from me and my legal name, but the US has a history of torturing people for years based on misidentification.

We’re simply not trustworthy on that front anymore.

Keith Alexander: “We Must Win, There Is No Substitute for Victory”

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I frankly have no problem with Keith Alexander giving the employees of the National Security Agency a pep talk as the truth of what they’re doing to us becomes public. They are not, after all, responsible for the serial disinformation Alexander and James Clapper have spread about their work. And the overwhelming majority of them are just trying to support the country.

I don’t find this part of Alexander’s speech even remotely accurate, mind you, but I’ve gotten used to dissembling from Alexander.

The issue is one that is partly fueled by the sensational nature of the leaks and the way their timing has been carefully orchestrated to inflame and embarrass. The challenge of these leaks is exacerbated by a lack of public understanding of the safeguards in place and little awareness of the outcomes that our authorities yield. Leadership, from the President and others in the Executive Branch to the Congress, is now engaged in a public dialogue to make sure the American public gets the rest of the story while not disclosing details that would further endanger our national security.

It’s hard to understand how leaks can be inflammatory and embarrassing but all the claims about safeguards and dialogue to also be true.

But it’s this passage I’m far more struck by:

Let me say again how proud I am to lead this exceptional workforce, uniformed and civilian, civil service and contract personnel. Your dedication is unsurpassed, your patriotism unquestioned, and your skills are the envy of the world. Together with your colleagues in US Cyber Command, you embody the true meaning of noble intent through your national service. In a 1962 speech to the Corps of Cadets on “duty, honor and country,” one of this nation’s military heroes, General Douglas MacArthur, said these words teach us “not to substitute words for action; not to seek the path of comfort, but to face the stress and spur of difficulty and challenge; to learn to stand up in the storm.” You have done all that and more. “Duty, Honor, Country” could easily be your motto, for you live these words every day. [my emphasis]

It’s not just that he calls out Cyber Command in the midst of a scandal that’s not supposed to be (but really is) about offensive war.

It’s not just that he chooses to cite one of the most powerful Generals ever, one who defied civilian command to try to extend a war that — it turns out — wasn’t existential.

But it’s also that he chose to cite a speech that invokes that moment of insubordination, a speech that encourages political inaction among the troops, a speech whose audience MacArthur defined as singularly military.

And through all this welter of change and development your mission remains fixed, determined, inviolable. It is to win our wars. Everything else in your professional career is but corollary to this vital dedication. All other public purpose, all other public projects, all other public needs, great or small, will find others for their accomplishments; but you are the ones who are trained to fight.

Yours is the profession of arms, the will to win, the sure knowledge that in war there is no substitute for victory, that if you lose, the Nation will be destroyed, that the very obsession of your public service must be Duty, Honor, Country.

Others will debate the controversial issues, national and international, which divide men’s minds. But serene, calm, aloof, you stand as the Nation’s war guardians, as its lifeguards from the raging tides of international conflict, as its gladiators in the arena of battle. For a century and a half you have defended, guarded and protected its hallowed traditions of liberty and freedom, of right and justice.

Let civilian voices argue the merits or demerits of our processes of government. Whether our strength is being sapped by deficit financing indulged in too long, by federal paternalism grown too mighty, by power groups grown too arrogant, by politics grown too corrupt, by crime grown too rampant, by morals grown too low, by taxes grown too high, by extremists grown too violent; whether our personal liberties are as firm and complete as they should be.

These great national problems are not for your professional participation or military solution. Your guidepost stands out like a tenfold beacon in the night: Duty, Honor, Country.

At a moment of crisis, at a moment when his own credibility is under strain, Keith Alexander has chosen to address the military, civilian, and contractor employees of the NSA as unthinking warriors, isolated from the critical issues swirling around them at the moment. He has chosen to frame NSA as a war machine, not as a defense machine.

The employees of NSA’s first duty is to the Constitution, not the secret battles Alexander wants to escalate and win at all costs. I do hope they don’t despair of that duty.

Shorter WaPo: It Would Take Months to Know about Spying Misconduct

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For what it’s worth, I consider reports that the government doesn’t know what Edward Snowden took to be disinformation. And indeed, claims to that effect in this WaPo article are sourced to: “one former government official,”a “former senior U.S. official,” and “a former senior U.S. intelligence official who served in Russia.” There’s also “a senior intelligence official” who says only it’ll take months to complete the damage assessment on Snowden’s materials, which is different from claiming (as the other sources do) that Russia and China have what he took. And a “second senior intelligence official” who fearmongers improbably about how much easier this will make things on the terrorists.

But ultimately, most of the people claiming NSA doesn’t know what Snowden took are former officials, presumably out of the loop on such issues (unless, of course, they’re Booz Allen Hamilton revolving doormen).

Funny thing is, if all that were true — if the government is still struggling to figure out what Snowden took a month after he left NSA — it indicates that the government would not know if a Sysadmin at the NSA had spied on Americans, if ever, until months after someone did so.

But, promise, this giant dragnet is secure.

Update: Mark Hosenball’s version of this apparently organized leak (his is sourced to “several U.S. officials,” “one non-government source familiar with Snowden’s materials,” and “2 U.S. national security sources,” makes it fairly clear the government intends to release this disinformation — along with incorrect claims about the history of WikiLeaks — as a way to fearmonger about that connection.

Although WikiLeaks initially made the diplomatic cables available to media outlets, including the Guardian and New York Times, who redacted potentially sensitive information before publishing them, the website eventually released an entirely unredacted archive of the material, to the dismay of the Obama Administration. U.S. officials said the information put sources at risk and damaged relations with foreign governments.

The disinformation people spreading this story apparently are less worried about confirming genuine concerns about the security of these programs than they are about trying to catch up to WikiLeaks involvement with a new line of fearmongering.

Update: I changed the title of this after it was published.

Obama’s Stubbornness and the Risk of Snowden

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At the outset of this post, let me lay out my following assumptions (I can’t prove these points, but I suspect them):

  • The documents released so far by Guardian and WaPo — information on the Section 215 program, PRISM, and the PPD on cyberwar — have done negligible damage to our security (indeed, even Sheldon Whitehouse, a big defender of these programs, said the government should have been transparent about them earlier)
  • China already knew the content of Edward Snowden’s public revelations about our hacking into Chinese networks (we know China’s compromises of us, so it is unlikely China, which is more successful and aggressive at hacking than we are, doesn’t know our compromises of it); the revelations on this front so far have served primarily to even out the playing field on mutual accusations of hacking
  • Snowden personally (and his laptops) have information that China and Russia could both find of more use, particularly given that some of our programs targeting them were run out of HI
  • Snowden may also have things that might be of use to others, such as organized crime (If I were planning on longevity and had access, for example, I would take some zero day exploits when I left the NSA, though the street value of them would diminish once NSA had inventoried what I took)
  • The reporting I’ve seen has not confirmed reports that either China or Russia has debriefed Snowden or scanned his computers (indeed, this report on China’s involvement in his departure from Hong Kong suggests they did not talk with him directly)
  • Julian Assange knows where Snowden is, leading to the possibility he has escaped Russia to a country that has not yet been named in reports of Snowden’s escape (named countries have included Venezuela, Cuba, Ecuador, and Iceland)

All of that is a roundabout way of saying that Snowden could do great damage to the US, but may not have yet, and certainly hadn’t by the time he first revealed himself in Hong Kong.

If that’s right, then it seems the Obama approach has been precisely the wrong approach in limiting potential damage to national security. The best way to limit damage, for example, would be to get Snowden to a safe place where our greatest adversaries can’t get to him, where we could make an eternal stink about his asylum there, but still rest easy knowing he wasn’t leaking further secrets. Indeed, if he were exiled in some place like France, we’d likely have more influence over what he was allowed to do than if he gets to Ecuador, for example.

The most likely approach to lead to further damage, however, is to charge him with Espionage. This not only raises the specter of the treatment we’ve given Bradley Manning — giving Snowden Denise Lind’s judgement that Manning’s rights were violated to include in any asylum application — but also easily falls under what states can call political crimes, which permits them to ignore extradition requests. That is, we appear to be pursuing the approach that could lead to greater damage.

By contrast, letting Snowden get someplace safe is perfectly equivalent to letting the CIA off for torture (or, for that matter, James Clapper off for lying to Congress). It’s a violation of rule of law, but it also serves to minimize the tremendous damage the spooks might do to retaliate. Obama has chosen this path already when the criminals were his criminals; he clearly doesn’t have the least bit of compunction of setting aside rule of law for pragmatic reasons. But in Snowden’s case, he seems to be pursuing a strategy that not only might increase the likelihood of damage, but also lets China and Russia retaliate for perceived slights along the way.

All this is just an observation. I believe Obama’s relentless attacks on whistleblowers and his ruthless enforcement of information asymmetry have actually raised the risk of something like this. And he seems to be prioritizing proving the power of the US (which has, thus far, only proved our diminishing influence) over limiting damage Snowden might do.

Update: This fearmongering WaPo article nevertheless quotes a former senior US official admitting that what Snowden has released so far wouldn’t help China or Russia.

A former senior U.S. official said that the material that has leaked publicly would be of limited use to China or Russia but that if Snowden also stole files that outline U.S. cyber-penetration efforts, the damage of any disclosure would be multiplied.