Former Bush Special Counsel Scott Bloch Bullies Journalists and Threatens 1st Amend Speech Before Criminal Sentencing

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CryingJusticeWhen this blog last substantively left the continuing saga of Bush/Cheney Special Counsel Scott Bloch, it was with these words:

So, between August 2, 2011 and December 21, 2012, a period of nearly a year and a half’s time, the DOJ has done nothing whatsoever in furtherance of prosecuting Scott Bloch. Until today. And the vaunted Department of Justice has, on the Friday before the Christmas holiday…..filed a Motion to Dismiss. However, that is not the end of the story, as clause 5 of the Motion to Dismiss contains this language:

Concurrent with this Motion to Dismiss, the government is filing a new information.

Well, not quite concurrent, as the Motion to Dismiss was filed mid to late morning, and the new information was just now made public. The new charge, a misdemeanor, is pursuant to 18 USC 1361 Depredation of Government Property or Contracts. The factual basis is made out from the “seven level wiping” Bloch caused to be done. Here is the new information just filed.

Yes, that is the “Reader’s Digest” version of how Scott Bloch came to be where he is now….awaiting sentencing in the United States District Court for the District of Columbia. For a crime that barely even references, much less is indicative of, the actual acts he committed against the United States Government, and the citizens it represents.

But, Bloch is indeed now facing sentencing on the latest cushy plea he has been afforded by the Department of Justice; sentencing scheduled for Monday May 13, 2013, less than one week from today. Here is Defendant Bloch’s sentencing memorandum, and here is the curiously collusive memorandum from the DOJ, who simply cannot stand for any Article II Executive Branch attorney being sent to jail/prison for lying to Congress because, seriously, many more might be in jeopardy if that was the case and precedent.

So, what is Mr. Scott Bloch doing? Taking his medicine quietly for having been given the gift plea by the DOJ to a misdemeanor after he actually committed such acts that appear by all legal rights to warrant felony allegations? Allegations as were described the last time Bloch was tried to be handed such a gift horse plea by the DOJ as:

…felony crimes Bloch could have been, and should have been, charged with are staggering; including obstruction of justice, false statements, perjury, willful destruction of government property and Federal Records Act violations. But Defendant Bloch made a deal to plead to one little misdemeanor with the guarantee he would be considered under the most favorable sentencing guideline conditions imaginable.

Nothing has changed; not a single underlying fact has changed in the least, and Bloch still stands Read more →

The National Security Advisor Exception Under the Espionage Act

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When the FBI found sensitive — though it turned out, unclassified — documents in Thomas Drake’s basement, he was charged under the Espionage Act. When the Army found hundreds of thousands of classified — but not Top Secret — cables on Bradley Manning’s computer, they charged him with Espionage and Aiding the Enemy.

But when the FBI found Top Secret documents on Sudan — our actual enemy, if sanctions count — in Reagan National Security Advisor Robert McFarlane’s basement, it decided to investigate him for illegal lobbying.

The FBI has searched the apartment of former Reagan administration national security adviser Robert McFarlane for evidence of whether he lobbied for the government of Sudan, in violation of federal law.

The search warrant is on file in federal district court in Washington. It shows agents seized items this month including handwritten notes about Sudan and White House documents with classifications up to Top Secret.

From this I can only assume that McFarlane is being subjected to the same double standard that Clinton’s National Security Advisor Sandy Berger was (represented, it should be noted, by former Criminal Division chief Lanny Breuer), when he snuck 9/11 related documents out of the Archives, yet only plead guilty to a misdemeanor.

When National Security Advisors take top secret documents, they’re called lobbyists, not spies.

I can’t wait to find out what Condi Rice will be called if she’s ever caught with sensitive documents in her basement.

According to James Clapper, John Brennan Is a Leaker

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To celebrate Sunshine Week last week, the Office of Director of National Intelligence  released to Jason Leopold that office’s memo on ramped up use of polygraphs to crack down on leaks.

The memo requires that polygraphs incorporate the following guidelines about what constitutes a leak.

  • “Unauthorized recipient” includes any U.S. person or foreign national without a need to know or not cleared at the appropriate level for the information, including any member of the media.
  • “Unauthorized disclosure” means a communication, confirmation, acknowledgement, or physical transfer of classified information, including the facilitation of, or actual giving, passing selling, keeping, publishing, or in any way making such information available, to an unauthorized recipient.
  • Classified information includes information classified at any level, including Confidential, Secret, or Top Secret. [my emphasis]

Note these categories are — at least as listed in the memo — position independent. No matter who does these things, an unauthorized disclosure of classified information to an unauthorized recipient is a leak.

Including the acknowledgement of classified information that may be already public.

Funny, then, that Clapper celebrated the confirmation of John Brennan at the Global Threats hearing last week. Because as part of Brennan’s confirmation process, he responded this way to a Richard Burr supplemental question about his own leaks.

Describe each specific instance in which you were authorized to disclosure classified information to a reporter or media consultant, including the identity of the individual authorizing each disclosure and the reason for each such disclosure.

In exceptional circumstances, when classified information appears to have already been leaked to the media, it may be necessary to acknowledge classified information to a member of the media or to declassify information for the very purpose of limiting damage to national security by protecting sources and methods or stemming the flow of additional classified information. Such conversations involve only the most senior Agency officials or their designees and must be handled according to any applicable regulations. I have on occasion spoken to members of the media who appeared to already have classified information, in an effort to limit damage to national security; however, even in those circumstances I did not disclose classified information.

Now, this doesn’t mean CIA Director Brennan will fail the polygraph question his new boss set up last year. At multiple times in his confirmation process, he admitted that he talks to journalists, up to and well beyond “acknowledging” information already out there. (Though he proved remarkably unwilling to provide the Senate Intelligence Committee a list of those acknowledgements leaks, which is one reason Saxby Chambliss voted against him.) He’s honest that he’s a leaker, though he himself excuses his own leaking because he’s so high ranking.

But as the effects of Clapper’s new system become clear, remember that he thinks John Brennan, an admitted leaker, is a great guy to head up the CIA.

Read more →

A Partial Defense of Bill Keller’s Column on Manning

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Late Sunday, former New York Times Executive Editor Bill Keller put up an op-ed column at the NYT website on the state of Bradley Manning’s case, his perception of Manning’s motivations and what may have been different had Manning actually gotten his treasure trove of classified information to the Times instead of WikiLeaks. The column is well worth a read, irrespective of your ideological starting point on Mr. Manning.

Bradley Manning has ardent supporters and, predictably, they came out firing at Keller. Greg Mitchell immediately penned a blog post castigating Keller for not sufficiently understanding and/or analyzing the Manning/Lamo chat logs. Kevin Gosztola at Firedoglake also had sharp words for Keller, although, to be fair, Kevin did acknowledge this much:

It is an interesting exercise for Keller. Most of what he said is rational and, knowing Keller’s history, he could have been more venerating in his description of how the Times would have handled Manning.

Frankly, many of the points Mitchell and Gosztola made, which were pretty much representative of a lot of the chatter about Keller’s op-ed on Twitter, were fair criticism even if strident. And part of it seems to simply boil down to a difference in perspective and view with Keller, as evidenced in Keller’s response to inquiry by Nathan Fuller, where he indicates he simply views some things differently.

This is all healthy give and take, difference in view and sober discussion by the referenced Read more →

Brennan Continues to Stonewall on His Own Leaks

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John Brennan has now been asked three times (four, presuming Richard Burr asked during the closed hearing, as he said he would) to list the specific times he has leaked to journalists. He has refused all the unclassified questions, as he does here in his supplemental questions.

Describe each specific instance in which you were authorized to disclosure classified information to a reporter or media consultant, including the identity of the individual authorizing each disclosure and the reason for each such disclosure.

In exceptional circumstances, when classified information appears to have already been leaked to the media, it may be necessary to acknowledge classified information to a member of the media or to declassify information for the very purpose of limiting damage to national security by protecting sources and methods or stemming the flow of additional classified information. Such conversations involve only the most senior Agency officials or their designees and must be handled according to any applicable regulations. I have on occasion spoken to members of the media who appeared to already have classified information, in an effort to limit damage to national security; however, even in those circumstances I did not disclosure classified information.

Burr wants a list. Brennan isn’t giving him one.

Noted.

Five Questions for John Brennan

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I’m sure I could grill John Brennan for hours. But after a lot of thought, here are the five questions I believe most important that should be asked of him Today.

1) Do you plan to continue lying to Americans?

You have made a number of demonstrable lies to the American people, particularly regarding the drone program and the Osama bin Laden raid. Most egregiously in 2011, you claimed “there hasn’t been a single collateral death” in almost a year from drone strikes; when challenged, you revised that by saying, “the U.S. government has not found credible evidence of collateral deaths,” even in spite of a particularly egregious case of civilian deaths just months earlier. On what basis did you make these assertions? What definition of civilian were you using in each assertion? (More background)

In addition, in a speech purportedly offering transparency on the drone program, you falsely suggested we know the identities of all people targeted by drones. Why did you choose to misrepresent the kind of intelligence we use in some strikes?

2) What was the intelligence supporting the first attempt to kill Anwar al-Awlaki?

The US government’s first attempt to kill Anwar al-Awlaki with a drone strike was December 24, 2009. WikiLeaks cables make it clear that Awlaki was a primary target of that strike, not just intended collateral damage. Yet the Webster report makes clear that on that day — that is, until the Underwear Bomber attempt the next day — the Intelligence Community did not consider Awlaki to be operational. Thus, the strike seems to have been approved before he fulfilled the criteria of the white paper released the other day, which authorizes the targeting of senior operational leaders of groups like AQAP. What was the legal basis for targeting this American citizen at a time when the IC did not believe him to be operational? (More background)

3) Will your close friendships with Saudis cloud your focus on the US interest?

In a fawning profile the other day, Daniel Klaidman nevertheless laid out the following points:

  • You considered Yemen to be a “domestic conflict.”
  • You opposed signature strikes in the country.
  • You nevertheless approved signature strikes in Yemen because of personal entreaties from people you know from when you were stationed on the Arabian peninsula in the 1990s.

In addition, recent reports have confirmed that the drone strike that killed Anwar al-Awlaki was launched from Saudi territory.

Were the personal entreaties you responded to from Yemenis or Saudis (or both)?

What role did the Saudis have in the Awlaki strike? Did they have an operational role?

As someone with such close ties to liaison sources, how have you and will you manage to prioritize the interests of the United States over the interests of friends you have from two decades ago?

To what degree is your intelligence sharing — especially with the Saudis — a stovepipe that creates the same risks of intelligence failures that got us into the Iraq War? (More background)

4) What role did you have in Bush’s illegal wiretap program?

The joint Inspector General report on the illegal wiretap program reported that entities you directed — the Terrorist Threat Integration Center in 2003 and 2004, and the National Counterterrorism Center in 2004 and 2005 — conducted the threat assessments for the program.

What role did you have, as the head of these entities, in the illegal wiretapping of Americans? To what extent did you know the program violated FISA? What role did you have in counseling Obama to give telecoms and other contractors immunity under the program? What influence did you have in DOJ decisions regarding suits about the illegal program, in particular the al-Haramain case that was thrown out even after the charity had proved it had been illegally wiretapped? Did you play any role in decisions to investigate and prosecute whistleblowers about this and other programs, notably Thomas Drake? (More background)

5) Did you help CIA bypass prohibitions on spying domestically with the NYPD intelligence (and other) programs?

In your additional prehearing questions, you admit to knowing about CIA’s role in setting up an intelligence program that profiled Muslims in New York City. What was your role in setting up the program? As someone with key oversight over personnel matters at the time, did you arrange Larry Sanchez’ temporary duty at the NYPD or CIA training for NYPD detectives?

Have you been involved in any similar effort to use CIA resources to conduct domestic spying on communities of faith? You said the CIA provides (among other things) expertise to local groups spying on Americans. How is this not a violation of the prohibition on CIA spying on Americans?  (More background)

Update: I realized that I have left out a caveat in Brennan’s drone lies — he was talking in the previous year. I’ve fixed that.

John Brennan, Unplugged

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As a special service to emptywheel readers, I am going to provide an abridged version of John Brennan’s answers to Additional Prehearing Questions in advance of his confirmation hearing on Thursday.

Q1 Bullet 3: 7 CIA officers died in Khost in a suicide bombing that was direct retaliation for our drone attack on a funeral, and then another drone attack on a thuggish enemy of Pakistan and his young wife. Let’s discuss this event as a counterintelligence event, shall we?

A: I have been impressed with CIA’s counterintelligence briefings.

Q6 Bullet 1: What principles should determine whether we conduct covert action under Title 50, where they’re legally supposed to be, or Title 10, where we’ve been hiding them?

A: Whatever works. But tell Congress!

Q6 Bullet 3: Should we reevaluate this?

A: Only if the President decides he wants to stop this shell game.

Q7: Should CIA be a paramilitary agency?

A: See answer to question 6.1.

Q9: We missed the Arab Spring. Shouldn’t we expect better?

A: The liaison relationships with Egypt, Israel, and Saudi Arabia that failed us before won’t fail us again.

Q10: Rather than asking whether you set up the CIA-on-the-Hudson, can you just answer whether you knew about this attempt to bypass restrictions on CIA operating in the US?

A: Yes, I did. CIA likes providing “key support” to local entities under the guise of Joint Terrorism Task Forces.

Q12: How would you manage CIA?

A: Moral rectitude.

Q13: You have lied about things like the Osama bin Laden raid to boost President Obama’s political fortunes. How will you ensure independence from the White House?

A: I will provide him with objective intelligence but I won’t necessarily provide such objective intelligence to anyone else.

Q15: How will you work with your buddies in the Saudi and similar intelligence agencies?

A: I will be the gatekeeper to all US intelligence community elements, but I promise to keep the Chief of Mission informed. At least about what the US side of that relationship is doing.

Q16: How will you staff the agency?

A: Moral rectitude.

Q17: How will you ensure accountability?

A: As CIA did when it was torturing, we’ll refer allegations of criminal wrongdoing to DOJ.

Read more →

The International Manhunt for WikiLeaks

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One of the things DOJ is protecting from FOIA in Electronic Privacy Information Center’s suit is information other governments have shared with the US on the investigation.

According to FBI’s David Harvey, this includes classified information from foreign governments.

(45) E.O. 13526, § 1.4(b) authorizes the classification of foreign government information. E.O. 13526, § 6.1(s) defines foreign government information as: “(1) information provided to the United States Government by a foreign government or governments, an international organization of governments, or any element thereof, with the expectation that the information, the source of the information, or both, are to be held in confidence; (2) information produced by the United States Government pursuant to or as a result of a joint arrangement with a foreign government or governments, or an international organization of governments, or any element thereof, requiring that the information, the arrangement, or both, are to be held in confidence; or (3) information received and treated as ‘foreign government information’ under the terms of a predecessor order.”

(46) Many foreign governments do not officially acknowledge the existence of some of their intelligence and security services, or the scope of their activities or the sensitive information generated by them. The free exchange of information between United States intelligence and law enforcement services and their foreign counterparts is predicated upon the understanding that these liaisons, and information exchanged between them, must be kept in confidence.

(47) The release of official United States Government documents that show the existence of a confidential relationship with a foreign government reasonably could be expected to strain relations between the United States and the foreign governments and lead to diplomatic, political, or economic retaliations. A breach of this relationship can be expected to have at least a chilling effect on the free flow of vital information to the United States intelligence and law enforcement agencies, which may substantially reduce their effectiveness. Although the confidential relationship of the United States with certain countries may be widely reported, they are not officially acknowledged. (48) Disclosure of such a relationship predictably will result in the careful analysis and possible compromise of the information by hostile intelligence services. The hostile service may be able to uncover friendly foreign intelligence gathering operations directed against it or its allies. This could lead to the neutralization of friendly allied intelligence activities or methods or the death of live sources, cause embarrassment to the supplier of the information, or result in economic or diplomatic retaliation against both the United States and the supplier of the information.

(49) Even if the government from which certain information is received is not named in or identifiable from the material it supplies, the danger remains that if the information were to be made public, the originating government would likely recognize the information as material it supplied in confidence. Thereafter, it would be reluctant to entrust the handling of its information to the discretion of the United States.

(50) The types of classified information provided by foreign government intelligence components can be categorized as: (a) information that identifies a named foreign government and detailed information provided by that foreign government; (b) documents received from a named foreign government intelligence agency and classified “Secret” by that agency; and (c) information that identifies by name, an intelligence component of a specific foreign government, an official of the foreign government, and information provided by that component official to the FBI.

[snip]

(51) The cooperative exchange of intelligence information between the foreign governments and the FBI was, and continues to be, with the express understanding that the information will be kept classified and not released to the public. Disclosure of the withheld information would violate the FBI’s promise of confidentiality. Read more →

John Brennan’s Kangaroo Court

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Congratulations to Barack Obama, whose invisible hand censor has made Gitmo even more of a kangaroo court than it was under Bush.

As Jim laid out, over the last two days of Gitmo hearings, we saw (thanks to livetweeters like Carol Rosenberg, Jason Leopold, and Daphne Eviatar) someone improperly cut the feed from the court room to the journalists for 3 minutes, just as Khalid Sheikh Mohammed’s lawyer, David Nevin, started to read from his unclassified motion to preserve the black sites. After it happened, Judge James Pohl was rather angry about what he saw as an improper use of the censorship system. Today, it became clear that the OCA–the original classification authority–pressed the censor button, via some AV means that Judge Pohl either didn’t fully understand or want to discuss.

In other words, CIA has ultimate control over his court room.

For the last day, I’ve been predicting that Moral Rectitude Transparency and Assassination Czar John Brennan was responsible for the improper censorship. It was almost certainly some CIA minion Brennan will manage not long after his February 7 confirmation hearing rather than Brennan himself. Though remember–the legal record indicates that the National Security Council, and not CIA, asked to have torture made into a Special Access Program in the first place, though before most of the 9/11 detainees being tried were tortured (the exception, I think, is Ramzi bin al-Shibh). So either John Brennan in his guise as Obama’s NSC counterterrorism advisor or his rising CIA Director–ultimately, it was his portfolio censorsing unclassified information in the trial.

But it’s worth noting that this is the second time in a week that CIA has managed to dictate our legal process. Last Friday, John Kiriakou was sentenced for indirectly revealing to these same defense lawyers the identity of two of their client’s interrogators (one who actually engaged in the torture itself). DOJ originally decided that knowledge, by itself, did not merit charges. But CIA appealed to … John Brennan, and Patrick Fitzgerald was brought in and ultimately Kiriakou was delivered up as an example to cow others who might expose details of the torture program.

And then yesterday, you had a lawfully cleared defense motion being discussed in court, and CIA overruled the determination the trial judge had made, and ensured that journalists could not hear even that unclassified motion. Judge Pohl has deferred the discussion about preserving the black sites as evidence until next month, and it’s not clear whether the defendants or the journalists will be permitted to attend that hearing.

We shall see, next month, whether the CIA has taken over this judicial determination, as they did the judgement on the John Adams Project.

The 2011 DIOG Permits Using NSLs to Get Journalist Contacts

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In what may be one of those stories telegraphing investigative details between people being investigated, the WaPo updates the StuxNet investigation.

Prosecutors are pursuing “everybody — at pretty high levels, too,” said one person familiar with the investigation. “There are many people who’ve been contacted from different agencies.”

The FBI and prosecutors have interviewed several current and former senior government officials in connection with the disclosures, sometimes confronting them with evidence of contact with journalists, according to people familiar with the probe.

Here’s the detail everyone is focusing on (and I’ve seen similar claims on reporting of other leak investigations).

Investigators, they said, have conducted extensive analysis of the e-mail accounts and phone records of current and former government officials in a search for links to journalists.

[snip]

Former prosecutors said these investigations typically begin by compiling a list of people with access to the classified information. When government officials attend classified briefings or examine classified documents in secure facilities, they must sign a log, and these records can provide an initial road map for investigators.

Former prosecutors said investigators run sophisticated software to identify names, key words and phrases embedded in e-mails and other communications, including text messages, which could lead them to suspects.

The FBI also looks at officials’ phone records — who called whom, when, for how long. Once they have evidence of contact between officials and a particular journalist, investigators can seek a warrant to examine private e-mail accounts and phone records, including text messages, former prosecutors said.

Prosecutors and the FBI can examine government e-mail accounts and government-issued devices, including cellphones, without a warrant. They can also look at private e-mail accounts without a warrant if those accounts were accessed on government computers. [my emphasis]

This description may well be how the government is conducting the StuxNet (and the UndieBomb 2.0 investigation, which the article also describes).

But if WaPo is relying solely on former prosecutors, this description may be totally outdated.

After all–as I’ve reported repeatedly in the past–the 2011 update of FBI’s Domestic Investigations and Operations Guide permits using National Security Letters to get journalists’ contacts in National Security investigations (as all of these would be).

A heavily-redacted section (PDF 166) suggests that in investigations with a national security nexus (so international terrorism or espionage, as many leak cases have been treated) DOJ need not comply with existing restrictions requiring Attorney General approval before getting the phone records of a journalist. The reason? Because NSLs aren’t subpoenas, and that restriction only applies to subpoenas.

Department of Justice policy with regard to the issuances of subpoenas for telephone toll records of members of the news media is found at 28 C.F.R. § 50.10. The regulation concerns only grand jury subpoenas, not National Security Letters (NSLs) or administrative subpoenas. (The regulation requires Attorney General approval prior to the issuance of a grand jury subpoena for telephone toll records of a member of the news media, and when such a subpoena is issued, notice must be given to the news media either before or soon after such records are obtained.) The following approval requirements and specific procedures apply for the issuance of an NSL for telephone toll records of members of the news media or news organizations. [my emphasis]

So DOJ can use NSLs–with no court oversight–to get journalists’ call (and email) records rather than actually getting a subpoena.

The section includes four different approval requirement scenarios for issuing such NSLs, almost all of which are redacted. Though one only partly redacted passage makes it clear there are some circumstances where the approval process is the same as for anyone else DOJ wants to get an NSL on:

If the NSL is seeking telephone toll records of an individual who is a member of the news media or news organization [2 lines redacted] there are no additional approval requirements other than those set out in DIOG Section 18.6.6.1.3 [half line redacted]

And the section on NSL use (see PDF 100) makes it clear that a long list of people can approve such NSLs:

  • Deputy Director
  • Executive Assistant Director
  • Associate EAD for the National Security Branch
  • Assistant Directors and all DADs for CT/CD/Cyber
  • General Counsel
  • Deputy General Counsel for the National Security Law Branch
  • Assistant Directors in Charge in NY, Washington Field Office, and LA
  • All Special Agents in Charge

In other words, while DOJ does seem to offer members of the news media–which is itself a somewhat limited group–some protection from subpoena, it also seems to include loopholes for precisely the kinds of cases, like leaks, where source protection is so important.

In other words, this story about starting with the sign-in logs of people who’ve been briefed on a particular topic, then gather call records of those officials?

That may be what happened.

Or it may work the other way, with the government identifying a story it doesn’t like and then using call records to trace back from there to the potential sources of the story.

This curious phrasing would support the latter scenario.

[DC US Attorney Ronald] Machen is examining a leak to the Associated Press that a double agent inside al-Qaeda’s affiliate in Yemen allowed the United States and Saudi Arabia to disrupt the plot to bomb an airliner using explosives and a detonation system that could evade airport security checks.

The AP, after all, didn’t report that UndieBomb 2.0 was actually a sting set up by a Saudi-run infiltrator (and their reporting, at least, suggested they didn’t know UndieBomber 2.0 was an informant). John Brennan and Richard Clarke told that story. And yet WaPo describes the investigation as focusing on the AP part of the story, not the more damning part about an infiltrator.

If and when John Brennan goes unpunished for revealing the most damning part of this story, it’ll become increasingly clear: not only is the government starting with the journalists’ phone and email contacts, but it is doing so with journalists it might otherwise want to silence.