Drone Strikes on the NYT’s Claim to Have Improved

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NYT Public Editor Margaret Sullivan attempts to tell the story of why the NYT held the illegal wiretap story before the 2004 election. Amid comments from the main players, she effectively admits that the NYT only published in 2005 because James Risen’s A State of War was about to come out.

Michael V. Hayden, who was the director of the N.S.A. and later the director of the Central Intelligence Agency, told me in an interview that he argued strenuously against publication, right up until the moment when The Times decided to go ahead. His rationale: “That this effort was designed to intercept threatening communication” and to prevent another terrorist attack.

In the end, The Times published the story with a couple of guns held to its head: First, the knowledge that the information in the article was also contained in a book by Mr. Risen, “State of War,” whose publication date was bearing down like a freight train. Second, at the end, the word of a possible injunction against publishing, Mr. Risen said, provided a final push: “It was like a lightning bolt.” (Mr. Hayden said that would not have happened: “Prior restraint was never in the cards.”)

Like a game of chicken played on a high wire, it remains “the most stressful and traumatic time of my life,” Mr. Risen recalls. Although The Times later said that further reporting strengthened the story enough to justify publishing it, few doubt that Mr. Risen’s book was what took an essentially dead story and revived it in late 2005. “Jim’s book was the driving force,” Mr. Lichtblau said.

Sullivan doesn’t mention another part of the story: that shortly after the NYT accused Risen of violating their ethics policy because he did not tell the NYT his book covered topics he had reported on for the paper — not just the illegal wiretap program, but also MERLIN, the attempt to stall the Iranian nuclear program by dealing them faulty blueprints. He had apparently told them he was writing a book on George Tenet.

When that news broke in early 2006, I concluded that Risen probably used the threat of scooping the NYT, and a nondisclosure agreement, to actually get the illegal wiretap program into the paper.

Let’s assume for a moment I’m correct in understanding the NYT spokesperson to be suggesting that Risen violated those ethical guidelines by publishing this book. Here’s the scenario such an accusation seems to spell out. (Speculation alert.) Risen attempted to publish both the NSA wiretap story and the Iran nuclear bomb story in 2004. NYT editors refused both stories. Then, in 2005 Risen takes book leave (and I should say that the NYT’s book leave policy is one of the best benefits it offers its writers), misleading his editors about the content of the book. Once he returns, his editors hear rumors that the book actually features the NSA wiretap story. Only in the face of imminent publication of the book do they reconsider publishing the wiretap story. Read more →

The Institutional Subjectivity of the White Affluent US Nation

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In a really worthy read, Bill Keller and Glenn Greenwald debate the future of journalism.

Sadly, however, in his first response to Keller’s self-delusion of belonging to the journalistic tradition of “newspapers that put a premium on aggressive but impartial reporting[] that expect reporters and editors to keep their opinions to themselves,” Greenwald seemed to cede that such journalism constitutes, “concealing one’s subjective perspectives.” That permitted Keller to continue his self-delusion that his journalism — at both the level of reporter and that reporter’s larger institution — achieved that silence about opinions until they started fighting about the role of national allegiance and national security.

That argument developed this way.

Greenwald: Former Bush D.O.J. lawyer Jack Goldsmith in 2011 praised what he called “the patriotism of the American press,” meaning their allegiance to protecting the interests and policies of the U.S. government. That may (or may not) be a noble thing to do, but it most definitely is not objective: it is quite subjective and classically “activist.”

[snip]

Keller: If Jack Goldsmith, the former Bush administration lawyer, had praised the American press for, in your words, “their allegiance to protecting the interests and policies of the U.S. government” then I would strongly disagree with him. We have published many stories that challenged the policies and professed interests of the government. But that’s not quite what Goldsmith says. He says that The Times and other major news outlets give serious consideration to arguments that publishing something will endanger national security — that is, might get someone killed.

For what it’s worth, I think Keller is clinging to the first thing Goldsmith said,

Glenn Greenwald complained that “the NYT knew about Davis’ work for the CIA (and Blackwater) but concealed it because the U.S. Government told it to” (my emphasis).  That is inaccurate.  The government asked the Times not to publish, as it often does, and the Times agreed to the request, which it sometimes does.  The final decision rested with the Times, which listens to the government’s claims about national security harm and risk to individual lives, and then makes its own decision.   The Timesdoes not, in my opinion, always exercise this discretion wisely.

And ignoring what Goldsmith went on to say,

I interviewed a dozen or so senior American national security journalists to get a sense of when and why they do or don’t publish national security secrets.  They gave me different answers, but they all agreed that they tried to avoid publishing information that harms U.S. national security with no corresponding public benefit. Some of them expressly ascribed this attitude to “patriotism” or “jingoism” or to being American citizens or working for American publications.   This sense of attachment to country is what leads the American press to worry about the implications for U.S. national security of publication, to seek the government’s input, to weigh these implications in the balance, and sometimes to self-censor.  (This is a natural and prudent attitude in a nation with the fewest legal restrictions in the world on the publication of national security secrets, but one abhorred by critics like Greewald.)  The Guardian, al Jazeera, and Wikileaks, by contrast, worry much less, if at all, about U.S. national security interests.

That is, Goldsmith noted both that at an institutional level US news outlets entertained the requests of the government, and that at a reportorial level, individuals prioritized US “national security.”

And from there, Keller repeatedly ignored or dismissed the efforts Greenwald, in his Edward Snowden reporting, or WikiLeaks, in its Cablegate publications, made to protect lives of individuals.

It’s not until Greenwald’s response where he gets to the crux of the issue.

As for taking into account dangers posed to innocent life before publishing: nobody disputes that journalists should do this. But I don’t give added weight to the lives of innocent Americans as compared to the lives of innocent non-Americans, nor would I feel any special fealty to the U.S. government as opposed to other governments when deciding what to publish. Read more →

Surveillance Logic: Snowden Is Bad because AQAP Conference Call Leak Was

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McClatchy did an interview with former national security official Ken Wainstein. He focuses on leaks, explaining how sometimes the “good leaks” don’t get prosecuted and admitting that overclassification is a problem.

But in response to McClatchy’s suggestion that Edward Snowden’s leaks are good, Wainstein responds in a bizarre fashion — by bringing up an entirely different leak.

Q: Do you weigh the public’s interest in the information that was leaked and whether it served the public good? For example, would you weigh whether Snowden’s actions triggered a broader debate about classified programs that the public should have known more about?

A: I think prosecutors would look at the intent of the leaker and what that person was intending to do.

But you wouldn’t have consensus that (the Snowden leak) was the best way to bring about this debate and that there hasn’t been damage. Just last week, for example, there was talk about how al Qaeda has shut down some of its communications because of aleak. I wouldn’t say it’s a given that it’s in the public interest that these disclosures are out there.

Wainstein’s talking, of course, of the NYT report that the public reports about the AQAP conference call story caused the terrorists to start using other communication methods.

But there are several problems with his claim. First, as I’ve pointed out, there’s a significant likelihood the leak in question came from AQAP sympathizers in the Yemeni government; in any case the leak was sourced to a broadly known fact in Yemen, not the US.

More importantly, the entire point of the story was that that AQAP leak had done more damage than all of Edward Snowden’s leaks. In fact, when criticized for the story, NYT’s editor pointed to that comparative fact as the entire point of the story.

He also said that many of the critics of the story “are missing part of the news here – that Snowden has not given away the store” in terms of harming national security or counterterrorism efforts.

The article, Mr. Hamilton said, “told an important and surprising story given the focus on Edward Snowden and the N.S.A. leaks. It had the kind of detail about terrorist operations that only reporters with long experience in national security coverage – and sources they can trust – can uncover.”

In other words, in response to a suggestion that Snowden’s leak did more harm than good, Wainstein points to a story that, even if the emphasis was wrong, pointed out that Snowden hadn’t done much damage.

Maybe Wainstein brought it up to suggest that McClatchy had better watch out; the AQAP story was also a McClatchy story. He’d be better off thanking McClatchy for making it clear someone in Yemen doesn’t keep our secrets very well.

But I guess that would ruin his entire scold about Edward Snowden.

David Kris: I’m Not Saying CIA Shoots Drones, Assassinates Americans, and Influences Media, But …

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In the passage of David Kris’ paper that address more public transparency, he included on paragraph on covert action.

For example, the covert action statute 221 could be interpreted and applied in ways that may be extraordinarily important, but about which very, very few Members of Congress, let alone the American People, ever learn.222 The statute defines covert action to exclude “traditional” military and law-enforcement activities,223 provides that a covert action finding “may not authorize any action that would violate the Constitution or any statute of the United States,”224 and specifically warns that “No covert action may be conducted which is intended to influence United States political processes, public opinion, policies, or media.”225 Without making any comment, express or implied, on any actual or hypothetical covert action, or even acknowledging that any covert action of any kind has ever actually taken place, it is quite obvious that each of those elements of the statute could raise enormously difficult and complex interpretive questions, some of which might affect many Americans.226 Yet it might be impossible, in many cases, to explain those interpretations without revealing the most sensitive classified information. 227 [60]

In other words, in a passage explaining the challenges and limits to making information available to the public, he implies (“without making any comment, express or implied, on any actual or hypothetical covert action, or even acknowledging that any covert action of any kind has ever actually taken place”) that CIA may have:

And while he very studiously avoids confirming these things that have all been confirmed elsewhere, his argument about the transparency of the matter has more to do with our treatment of covert ops than with transparency per se.

That is, it’s not so much that the US doesn’t and can’t know about the drone strikes, US person assassinations, and really bad propaganda the CIA has been involved in. It’s just that the government keeps the law on covert operations on the book, pretending it abides by it, while telling just the Gang of Four it doesn’t.

That is, it’s not about transparency, it’s about the legal sanction to lie about actions that everyone knows the Executive undertakes.

None of that is shocking (though it’s an interesting argument). But it’d be nice if Kris wanted to hint whether these covert actions included more politicized spying on American people.

Thanks for Keeping Us Independent

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I’ve been remiss.

I had plans to send out a thank you note to all the people who donated during our fundraiser. But then a family issue came up and I haven’t gotten it done yet.

Nevertheless, this piece of news made me realize I need to issue a heartfelt thank you immediately.

I am very excited to announce that tomorrow, we are launching a project with our friends at the New Republic to bring Lawfare content and writers to the New Republic‘s web site. Astute readers may have noticed that we have been sharing a certain amount of content with the New Republic over the past few weeks. The partnership aims to build on this relationship, situating Lawfare‘s expertise in national security legal issues within the New Republic‘s broader policy focus.

We are calling the project, which is being sponsored by the Northrup Grumman Corp., “Security States.” [my emphasis]

Some national security commentary gets sponsored by a drone manufacturers and spy companies (the announcement also led me to realize that Brookings itself gets $1 to $2.5 million a year from Booz h/t Katherine Hawkins).

Ours gets sponsored by you.

To all of you who help keep us independent, you have my profuse gratitude.

The Kiddie Porn and the UndieBomb

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Screen shot 2013-09-26 at 1.22.11 PMI was at a funeral Monday and Tuesday. So when I heard the FBI had busted the guy who leaked the UndieBomb 2.0 story, I assumed they had finally arrested John Brennan.

But, as bmaz emphasized in his post on Donald Sachtleben’s plea agreement, there’s no hint of prosecuting Brennan, who leaked Top Secret details about the British/Saudi double agent into AQAP, even while they’re imprisoning Donald Sachtleben, who is only accused of leaking details he knew to be Secret.

A law enforcement official indicated that the case has not been officially closed but the charges against Sachtleben are the only ones expected.

(Sure, the evidence that Sachtleben was involved with kiddie porn seems solid, but then Brennan drone-killed children, so he’s not above reproach for his treatment of children either.)

But that is by no means the weirdest thing about the government’s treatment of the UndieBomb 2.0 leak investigation.

The entire premise of the FBI narrative is that they exercised greater care with a kiddie porn accusee they had dead to rights than they did the 100 or so AP reporters who got sucked up in their overbroad dragnet. They would have you believe that, even after seizing a CD holding a November 2, 2006 SECRET CIA intelligence report at Sachtleben’s house in May 2012 pursuant to a kiddie porn warrant (which they have not produced in the docket), they just sat on his devices for almost a year until they obtained the phone records for 20 AP phone lines, in a seizure far more intrusive into journalism than any recent known subpoena.

Sachtleben was identified as a suspect in the case of this unauthorized disclosure only after toll records for phone numbers related to the reporter were obtained through a subpoena and compared to other evidence collected during the leak investigation. This allowed investigators to obtain a search warrant authorizing a more exhaustive search of Sachtleben’s cell phone, computer, and other electronic media, which were in the possession of federal investigators due to the child pornography investigation.

(I may be mistaken, but I don’t think the FBI made this claim in any court document, so I assume it is bullshit, especially since they had had to do extensive forensic searches of Sachtleben’s computer and he had already signed a plea deal forfeiting it.)

They would also have you believe the AP had no inkling of the UndieBomb plot until ABC reported inflammatory claims about cavity bombs on April 30, 2012, even in spite of ABC’s reference to TSA head John Pistole’s earlier fear-mongering about it and in spite of additional reporting about broad Air Marshall mobilization. DOJ goes to great lengths to make you believe AP first texted Sachtleben on April 30 and not, say, on April 28 (which would mean the kiddie porn investigation accelerated after such contact), though there’s no reason to believe that’s true and the AP call records DOJ obtained apparently go back to well before April 30. They also suggest AP was asking Sachtleben about an Asiri bomb, though the first text they include is an assertion — not a question — that Asiri has been busy.

They would have you believe that two Pulitzer Prize winners would defy White House and CIA wishes with a story sourced to a single source who, just a day earlier, had provided a mistaken guess about the excitement. Read more →

Further Implications of UndieBomb II Leaker Guilty Plea

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As you have likely heard by now, a former FBI agent has agreed to plead guilty to leaking material about the second underwear bomb attempt to reporters in May of 2012. Charlie Savage of the New York Times has the primary rundown:

A former Federal Bureau of Investigation agent has agreed to plead guilty to leaking classified information to The Associated Press about a foiled bomb plot in Yemen last year, the Justice Department announced on Monday. Federal investigators said they identified him after obtaining phone logs of Associated Press reporters.

The retired agent, a former bomb technician named Donald Sachtleben, has agreed to serve 43 months in prison, the Justice Department said. The case brings to eight the number of leak-related prosecutions brought under President Obama’s administration; under all previous presidents, there were three such cases.

“This prosecution demonstrates our deep resolve to hold accountable anyone who would violate their solemn duty to protect our nation’s secrets and to prevent future, potentially devastating leaks by those who would wantonly ignore their obligations to safeguard classified information,” said Ronald C. Machen Jr., the United States attorney for the District of Columbia, who was assigned to lead the investigation by Attorney General Eric H. Holder Jr.

In a twist, Mr. Sachtleben, 55, of Carmel, Ind., was already the subject of a separate F.B.I. investigation for distributing child pornography, and has separately agreed to plead guilty in that matter and serve 97 months. His total sentence for both sets of offenses, should the plea deal be accepted by a judge, is 140 months.

Here is the DOJ Press Release on the case.

Here is the information filed in SDIN (Southern District of Indiana). And here is the factual basis for the guilty plea on the child porn charges Sachtleben is also pleading guilty to.

So Sachtleben is the leaker, he’s going to plead guilty and this all has a nice beautiful bow on it! Yay! Except that there are several troubling issues presented by all this tidy wonderful case wrap up.

First off, the information on the leak charges refers only to “Reporter A”, “Reporter A’s news organization” and “another reporter from Reporter A’s news organization”. Now while the DOJ may be coy about the identities, it has long been clear that the “news organization” is the AP and “Reporter A” and “another reporter” are AP national security reporters Matt Apuzzo and Adam Goldman (I’d hazard a guess probably in that order) and the subject article for the leak is this AP report from May 7, 2012.

What is notable about who the reporters are, and which story is involved, is that this is the exact matter that was the subject of the infamous AP phone records subpoenas that were incredibly broad – over 20 business and personal phone lines. These subpoenas, along with those in the US v. Steven Kim case collected against James Rosen and Fox News, caused a major uproar about the sanctity of First Amendment press and government intrusion thereon.

The issue here is that Attorney General Eric Holder and the DOJ, as a result of the uproar over the Read more →

DOJ Refuses to Explain How Executive Gets Away with Serial Lies to the FISA Court

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USA Today’s Brad Heath asked DOJ a very good question: why haven’t the Executive Branch’s serial lies to the FISA Court ever been referred to Office of Professional Responsibility?

I’ve talked to a former OPR attorney who says the office
would ordinarily review a case in which a judge used that type of language, and that it should have
at least opened an inquiry into these.

Over the past several days, DOJ’s Brian Fallon has been stupendously prickish about Heath’s questions based on his assertion that Heath is biased in his belief that such gross misrepresentations would normally merit some kind of sanction.

I have an answer from OPR, and a FISC judge. I am not providing it to you because all you will do is seek to write around it because you are biased in favor of the idea that an inquiry should have been launched. So I will save what I have for another outlet after you publish.

[snip]

You are not actually open-minded to the idea of not writing the story. You are running it regardless. I have information that undercuts your premise, and would provide it if I thought you were able to be convinced that your story is off base. Instead, I think that to provide it to you would just allow you to cover your bases, and factor it into a story you still plan to write. So I prefer to hold onto the information and use it after the fact, with a different outlet that is more objective about whether an OPR inquiry was appropriate.

I’ve lost count of the number of times someone in the Executive Branch complains that no one comes to them to get their view on NSA-related questions.

But apparently this is what goes on. If you don’t come in with the Executive Branch’s bias, then they refuse to provide you any information.

I really look forward to seeing which journalist DOJ seems to believe will bring “balance” to this issue.

Update: Heath has published his story.

The Justice Department’s internal ethics watchdog says it never investigated repeated complaints by federal judges that the government had misled them about the NSA’s secret surveillance of Americans’ phone calls and Internet communications.

The Justice Department’s Office of Professional Responsibility routinely probes judges’ allegations that the department’s lawyers may have violated ethics rules that prohibit attorneys from misleading courts. Still, OPR said in response to a Freedom of Information Act request by USA TODAY that it had no record of ever having investigated — or even being made aware of — the scathing and, at the time, classified, critiques from the Foreign Intelligence Surveillance Court between 2009 and 2011.

DOJ insists, however, that 5 years of lying to judges is just the way things are supposed to work.

Justice spokesman Brian Fallon said in a statement Thursday that the department’s lawyers “did exactly what they should have done. The court’s opinions and facts demonstrate that the department attorneys’ representation before the court met the highest professional standards.”

Fallon continued spinning for other journalists.

Of course, if DOJ were going to investigate lawyers — as opposed to Keith Alexander or similar — for misconduct and lies, Lisa Monaco, who headed the National Security Division from 2010 until earlier this year. But she’s at the White House now, so off limits for any accountability.

Fund Unchained Journalism of Emptywheel: It’s All Because Of You

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[Note from Jim: There have some issues with the PayPal buttons taking you to PayPal’s main page instead of the page set up for Emptywheel donations. Please use the link below and it will give a functioning button. On my machine and browser, though, you have to click the button and stay in the same browser tab for it to work. If you do “cntrl-click” to open in a new tab, you get the main PayPal home page. If there are any issues, please let us know. If you prefer snail mail, checks made out to “Emptywheel, LLC” can be mailed to this address:Emptywheel, LLC
P.O. Box 1673
Grand Rapids, Michigan 49501-1673Thank you one and all, you are the best readers an supports on the web!]

Okay, the Emptywheel blog has run a fundraiser for a week now. For the most insightful, deep weed analyzing, cutting edge and kick ass journalism on the web.We continue to need your support.

We started this ask a week ago, and I should know because I agreed for it to start just ahead of my Trash Talk post at the open of the NFL football season a week ago last night.

But I am going to extend the ask for a short time; such as through the weekend, because it is a more than worthy effort. And it will stay on top of this blog until some time Monday with the hope that the Emptywheel model is kickstarted, so to speak, further into success. Please, help us make it so by going to this page and donating.

If there is a more neutral, deep fact based, deeply analytic, independent and proven insightful blog, or voice than Ms. Marcy T. Wheeler, better serving the relevant niche, than this one, I would like to see it. Whether you are on the right or the left, this blog is incredibly valuable for its depth and consistency of analysis.

The lioness share of this history is by Marcy Wheeler and she alone deserves the support; but you also get the cogent analysis of Jim White, Rayne and, every now and then, me. I won’t speak for my own, but the rest is damn good work. And worthy of your support as a critical voice, whether you agree or disagree with us politically, legally, and/or policy wise.

We need your support as independent journalistic voices in the mass media milieu. Make no mistake, your support of all of our work here helps establish all of us as protected and respected journalists, and we are thankful for the same.

If you are reading this, you either know, or should know, precisely what level of outstanding journalism goes down daily on, and at, the Emptywheel blog.

As they say in my business, there is a certified record. And it stands up. Help us keep up that record, and add to it, with all that is going on in the world every day.

It is not about us. It is about you, and all of us, and what we should and can be. Support this journalism. From me, to Marcy, to Jim, to Rayne, to everything that is, and always has been, the Emptywheel blog, thank you.

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All because of you

We can help check the government in its tracks, help fill the gaping cracks. The Emptywheel blog is indeed all because of you. True independent journalism, not bought off by anybody in the main; not subject to any corporate ball and chain. Real independent deep analysis, reportage and journalism.

Help us continue the tradition.

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Bradley Manning’s Sentence, Parole and Appeal Implications

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CryingJusticeOn Monday I laid out the dynamics that would be in play for the court in considering what sentence to give Bradley Manning in light of both the trial evidence and testimony, and that presented during the sentencing phase after the guilty verdict was rendered. Judge Lind has entered her decision, and Bradley Manning has been sentenced to a term of 35 years, had his rank reduced to E-1, had all pay & allowances forfeited, and been ordered dishonorably discharged. This post will describe the parole, appeal and incarceration implications of the sentence just imposed.

Initially, as previously stated, Pvt. Manning was credited with the 112 days of compensatory time awarded due to the finding that he was subjected to inappropriate pre-trial detention conditions while at Quantico. Pvt. Manning was credited with a total 1294 days of pre-trial incarceration credit for the compensatory time and time he has already served since the date of his arrest.

Most importantly at this point, Manning was sentenced today to a prison term of 35 years and the issue of what that sentence means – above and beyond the credit he was given both for compensatory time and time served – is what is critical going forward. The following is a look at the process, step by step, Bradley Manning will face.

The first thing that will happen now that Judge Lind has gaveled her proceedings to a close is the court will start assembling the record, in terms of complete transcript, exhibits and full docket, for transmission to the convening authority for review. It is not an understatement to say that this a huge task, as the Manning record may well be the largest ever produced in a military court martial. It will be a massive undertaking and transmission.

At the same time, the defense will start preparing their path forward in terms of issues they wish to argue. It is my understanding that Pvt. Manning has determined to continue with David Coombs as lead counsel for review and appeal, which makes sense as Coombs is fully up to speed and, at least in my opinion, has done a fantastic job. For both skill and continuity, this is a smart move.

The next step will be designation of issues to raise for review by the “convening authority”. In this case, the convening authority is Major General Jeffrey Buchanan, who heads, as Commanding General, the US Army’s Military District of Washington. This step is quite different than civilian courts, where a defendant proceeds directly to an appellate court.

The accused first has the opportunity to submit matters to the convening authority before the convening authority takes action – it’s not characterized as an “appeal,” but it’s an accused’s first opportunity to seek relief on the findings and/or the sentence. According to the Manual for Courts-Martial, Rule for Court-Martial 1105:

(a) In general. After a sentence is adjudged in any court-martial, the accused may submit matters to the convening authority in accordance with this rule.

(b) Matters which may be submitted.
(1) The accused may submit to the convening au­ thority any matters that may reasonably tend to af­ fect the convening authority’s decision whether to disapprove any findings of guilty or to approve the sentence. The convening authority is only required to consider written submissions.
(2) Submissions are not subject to the Military Rules of Evidence and may include:
(A) Allegations of errors affecting the legality of the findings or sentence;
(B) Portions or summaries of the record and copies of documentary evidence offered or intro­ duced at trial;
(C) Matters in mitigation which were not avail­ able for consideration at the court-martial; and
(D) Clemency recommendations by any mem­ber, the military judge, or any other person. The defense may ask any person for such a recommendation.

Once the convening authority has the full record and the defense has designated its matters for review, Buchanan will perform his review and determine whether any adjustments to the sentence are appropriate, and that will be considered the final sentence. At this point, the only further review is by a traditional appeal process.

Generally, the level of appellate review a case receives depends on the sentence as approved by the Read more →