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Of Course the NSA Can’t Search Its Own Emails…

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Justin Elliott reports that when he tried to FOIA emails between National Geographic and the NSA, the world’s premier digital spying agency said they couldn’t search their own emails.

“There’s no central method to search an email at this time with the way our records are set up, unfortunately,” NSA Freedom of Information Act officer Cindy Blacker told me last week.

The system is “a little antiquated and archaic,” she added.

I filed a request last week for emails between NSA employees and employees of the National Geographic Channel over a specific time period. The TV station had aired a friendly documentary on the NSA and I want to better understand the agency’s public-relations efforts.

A few days after filing the request, Blacker called, asking me to narrow my request since the FOIA office can search emails only “person by person,” rather than in bulk. The NSA has more than 30,000 employees.

This shouldn’t surprise him though. Fort Meade apparently can’t keep a close-circuit video stream running either, if the stream to the media room at the Bradley Manning trial was any indication.

I think Elliott went about this all wrong, though.

These are, after all, US Person emails. And the NSA doesn’t get US Person emails directly. Rather, they “target” the email of someone overseas, and get all the US Person emails “incidentally.”

All Elliott has to do is FOIA emails involved with the documentary in question overseas and declare he needed the NSA side of it to understand the foreign intelligence he had gathered.

And if that doesn’t work, Elliott should just ask GCHQ for the emails, as that seems to be the other cute workaround.

Negative Manning Decision and the Future of Investigative Journalism

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imagesLittle more than few hours ago, a critical ruling was handed down by Judge Denise Lind in the Bradley Manning UCMJ prosecution ongoing at Fort Meade. The decision was on based on this motion by the defense seeking dismissal of the “Aiding the Enemy” charge, among others in the prosecution.

To make a long, even if sadly predictable, story short, the motion was denied by Judge Lind and the charge will proceed to determination on the merits. This is, to be sure, a nod to the prosecution (which is actually the standard in such motions for directed verdicts during trials; that is the facts are taken in the light most favorable to the non-moving party, the government). It is also, obviously, a blow to the defense, although undoubtedly an expected one for defense attorney David Coombs. There is a very outside chance of a silver lining I will discuss below.

Julie Tate at the Washington Post sets the table:

The motion to dismiss the charge was filed July 4 by Manning’s civilian defense attorney. He argued that the government had failed to show that Manning “had ‘actual knowledge’ that by giving information to WikiLeaks, he was giving information to an enemy of the United States.” He said the government did introduce evidence “which might establish that PFC Manning ‘inadvertently, accidentally, or negligently’ gave intelligence to the enemy,” but that this was not enough to prove the most serious charge against him, known as an Article 104 offense.

On two separate occasions, Lind, an Army colonel, had questioned military prosecutors about whether they would be pursuing the charge if the information had been leaked directly to The Washington Post or the New York Times. Each time, the prosecution said it would. That troubles advocates for whistleblowers, who fear that the leaking of national defense information that appears online, as it inevitably does, can be construed as assisting the enemy.

If convicted of aiding the enemy, Manning, an intelligence analyst who served in Iraq, could face life in prison.

That describes the motion and the stakes as to Manning. Julie’s article also gives more particulars on the denial this morning, and is worth a read. For a tick tock, please see the continuously good coverage by Kevin Gosztola of Firedoglake.

But as enormous as the stakes are for Bradley Manning, the enterprise of investigative journalism is also on trial, even if in an indirect manner.

Yet another journalist who has tirelessly, and superbly, covered the Manning prosecution, Alexis O’Brien, has written at the Daily Beast, the stakes for investigative journalism are also life and/or death in the face of the security/surveillance state. Citing the in court, and on the trial record, compelling testimony of Professor Yochai Benkler of Harvard Law School, Alexis related:

In a historic elocution in court last week, Prof. Yochai Benkler, co-director of the Berkman Center for Internet and Society at Harvard Law School, told Lind that “the cost of finding Pfc. Manning guilty of aiding the enemy would impose” too great a burden on the “willingness of people of good conscience but not infinite courage to come forward,” and “would severely undermine the way in which leak-based investigative journalism has worked in the tradition of [the] free press in the United States.”

“[I]f handing materials over to an organization that can be read by anyone with an internet connection, means that you are handing [it] over to the enemy—that essentially means that any leak to a media organization that can be read by any enemy anywhere in the world, becomes automatically aiding the enemy,” said Benkler. “[T]hat can’t possibly be the claim,” he added.

Benkler testified that WikiLeaks was a new mode of digital journalism that fit into a distributed model of emergent newsgathering and dissemination in the Internet age, what he termed the “networked Fourth Estate.” When asked by the prosecution if “mass document leaking is somewhat inconsistent with journalism,” Benkler responded that analysis of large data sets like the Iraq War Logs provides insight not found in one or two documents containing a “smoking gun.” The Iraq War Logs, he said, provided an alternative, independent count of casualties “based on formal documents that allowed for an analysis that was uncorrelated with the analysis that already came with an understanding of its political consequences.”

Those really are the stakes in the, now, not all that new age of digital journalism. When the prosecutors in the Manning trial, upon direct questioning by Judge Lind as to whether they would still prosecute Manning if his leaks had been delivered straight to the New York Times or Washington Post, it had to be a wake up call for traditional media. Or so you would think. But, really, the outrage has been far greater over the James Rosen/Fox subpoena that could, and arguably should, be considered relative peanuts.

But, Yochai Benkler is right as to the import of the consideration as to Wikileaks in the Manning case.

In closing, the one slim and thin ray of limited hope from today’s ruling by Denise Lind: If I were Lind and cared at all about the ultimate verdict on Pvt. Bradley Manning, I too would have made this ruling. Why, you ask? Well, because a dismissal on the motion would have been the equivalent of a directed verdict on the law and would be far easier to overturn on appeal than a decision on the merits that the government has not met its burden of proof. Is this possible; sure, it certainly is. Is this likely; no, I would not make any substantial bets on it.

Why Has John Bogdan Not Yet Been Relieved of Command at Guantanamo?

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Bogdan was clearly put out by having to host Special Envoy Clifford Sloan, the new leader of the U.S. State Department's Office of Guantanamo Closure when he visited on July 2. I'm guessing he's upset at the whole idea of closing Gitmo.

Bogdan was clearly put out by having to host Special Envoy Clifford Sloan, the new leader of the U.S. State Department’s Office of Guantanamo Closure, when he visited on July 2. I’m guessing he’s upset at the whole idea of closing Gitmo. (Defense Department photo)

It has been clear for some time that the current hunger strike crisis at Guantanamo can be laid squarely at the feet of John Bogdan, who heads the Joint Task Force Guantanamo Detention Group. In other words, he is the head of the guard force. As I noted in this post, Shaker Aamer’s attorney, in a statement to Andy Worthington, clearly blamed Bogdan for the actions that precipitated the hunger strike.

Yesterday, Judge Royce Lamberth dealt a severe setback to Bogdan, striking down one of his most needlessly abusive practices. From Charlie Savage at the New York Times:

A federal judge on Thursday ordered the military to stop touching the groins of detainees at the prison at Guantánamo Bay, Cuba, when they are moved from their cells to speak with lawyers. The procedure had led some prisoners to stop meeting with or calling their lawyers.

In a 35-page opinion, Judge Royce C. Lamberth, the chief judge of the Federal District Court for the District of Columbia, called the searches — which included guards wedging their hands between the genitals and thighs of the detainees as many as four times when moving them to a meeting and back to their cells — “religiously and culturally abhorrent” to Muslims. He portrayed the procedure as unnecessary and intended to “actively discourage” meetings with lawyers.

He said the warden, Col. John Bogdan, must return to a longtime procedure in which guards shake the underwear of detainees by the band to dislodge any contraband, but do not to touch their buttocks or genitals.

Savage goes on:

He also directed the military to allow detainees who are weak from hunger strikes to meet with their lawyers in the same buildings in which they are housed, and to stop using new transport vans that have low roofs that detainees had said required them to be painfully crouched while shackled.

Julie Tate at the Washington Post has more:

Lawyers for detainees had argued that the motivation for the search procedure was not to enhance security but to isolate detainees from their attorneys in an effort to crush a growing hunger strike at the base. The hunger strike began in February as a reaction to guards searching detainees’ Korans. More than two-thirds of the 166 detainees at Guantanamo are participating in the protest, with more than 40 being force-fed.

Lamberth said the military’s action had to be judged in light of previous actions that limited the ability of attorneys to meet with their clients.

“As petitioners’ counsel correctly noted during this Court’s hearing, ‘[t]he government is a recidivist when it comes to denying counsel access,’ ” Lamberth wrote.

Recall that when public pressure finally got high enough over the abusive treatment of Bradley Manning at the Quantico Brig (where he was forced to stand naked) the government replaced the Brig Commander and then transferred Manning from Quantico to Leavenworth, where his treatment dramatically improved.

In the case of Guantanamo, many of the hunger-striking prisoners Bogdan is abusing (see this post from Marcy for more abusive practices) are already cleared for release, so the government should move quickly to release them to get them away from further abuse. However, considering Bogdan’s shaky background (I have mused that he may well have trained death squads in Iraq) and the public attention generated by the ICRC showing up at Guanantamo ahead of its scheduled date due to widespread knowledge of the latest round of abusive practices, it is clear that one of the most affirmative actions the US could take toward diffusing the situation would be to relieve Bogdan of command immediately.

Do Barack Obama and Chuck Hagel have the courage to the right thing and send Bogdan packing? I’m not holding my breath.

Update July 14: I am very embarrassed to have missed this important development Jason Leopold reported on May 23:

Military attorneys representing former CIA captives detained in a top secret camp at Guantanamo have called on Secretary of Defense Chuck Hagel to examine whether the head of the prison’s guard force is fit for command.

Col. John Bogdan, the commander of Guantanamo’s Joint Detention Group, has been singled out by the defense lawyers for revamping dormant policies, such as inspections of Qurans and genital patdowns, that gave rise to a hunger strike, now entering its fourth month.

“Although we represent so-called ‘high value detainees, many of our concerns relate to the treatment of all prisoners, to include men whose internment appears to be indefinite” states a 13-page letter and signed by nineteen attorneys, including several who represent self-professed 9/11 mastermind Khalid Sheikh Mohammed and Abd al Rahim al Nashiri, the alleged architect behind the USS Cole bombing, sent to Hagel on Monday. “There has been a serious degradation in the quality of life for detainees in Guantanamo Bay over the past year. This change appears to have coincided with the arrival of the new Joint Detention Group Commander, Col. John V. Bogdan.”

The letter was also reported on by MSNBC, where their article also cited a Seton Hall study and made the suggestion that Bogdan has perjured himself.

“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?”

Bradley Manning Defense: Good Data Miners Are Data Hogs

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I happened to need to consult the PressFreedom transcript of today’s Bradley Manning trial. And came across this exchange, which goes to the heart of the debate on NSA’s dragnet of Americans.

In it, Manning’s lawyer, David Coombs, questioned Chief Warrant Officeer Joshua Ehresman, the ranking officer in the SCIF Manning worked in. Ehresman describes how analysts in Manning’s role were encouraged to consult whatever sources they could get their hands on.

Q And you had earlier said the term data mining, what is data mining?

A That’s pulling everything you can from every bit of intelligence assets you’ve got to help build your products.

Q Would you expect (INAUDIBLE) list of data mining?

A Yes, sir.

Q Why is that?

A Because you can’t go off one source of intelligence to predict something to happen. You have to have other stuff that indicate that it’s going to happen. You can’t just guess.

Q Where do analysts obtain their information that they’re data mining?

A Everywhere, sir. We got them on the SIPR, we got them from the T-Drive. We got them from wherever we could, open source, anything.

Q And correct me if I’m wrong, when I think of the term data mining, what you just described, is basically an analyst looking at everything and anything that they can, at any location just to kind of figure out would this perhaps be relevant to what I’m doing, is that correct, or would you provide a different definition for it?

A Yes, sir.

Q Yes, sir, that’s —

A That’s correct. You’re trying to find out yes or no this is going to happen, and, yes, this is how it’s happened and this is why it’s happening. So you have to confirm or deny your assessment.

Q Now, with regards to I guess when you’re doing this was the any guidance put out that if your you’re data mining you can do everything but go to this particular area on SIPRnet?

A No, sir.

Q So were there any restrictions on what you would data mine on SIPRnet?

A No, sir.

Q Was it common for a soldiers or analysts to data mine?

A Yes, sir.

Q Did analysts also use open source information?

A Yes, sir.

Q And what is open source information?

A That’s regular Internet, sir.

Q How would an analyst use an open source?

A We would get on and check out the web pages or you can check out local newspaper or it’s anything that doesn’t come through our secret or higher confidential webs.

Q And, again, in kind of a general description, how would open source information help your work products?

A Sometimes some of the media had information that we didn’t find out through our patrols or something. We could get patrol report and they would have outside information or a different point of view from what happens. So we would use that in our assessment, sir.

Q And were analysts encouraged to use open source information for their work products?

A Yes, sir.

Q Was there any sort of restriction placed out by the S2 section of you can go to every place besides these sites on open source?

A There was no restriction, sir.

Ehresman would go on to testify that Manning was, “our best analyst by far when it came to developing products.” Manning was, Ehresman testified, “our go-to guy for a lot of our shops, sir.”

This has little to do, directly, with the question of whether Manning will be found guilty or innocent of the charges against him.

But it does demonstrate how impossible the goal of protecting both data mining analysis and privacy is. If you want the (then) Specialist Mannings of the world to do their job well, you need to give them as much information, in relatively unfettered form, as you can.

There’s little way to achieve this goal and, at the same time, protect the data you’re piping out, aside from the honor system. And the honor system relies, in turn, on you — the United States — matching your promises and claims.

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.

Manning Prosecution: I Don’t Think the Government’s Report Says What It Claims It Does

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Kevin Gosztola reports that the government plans to use a document Bradley Manning is alleged to have accessed as part of its proof that he knew he’d be leaking any further information to al Qaeda and other enemies by leaking it to WikiLeaks.

Morrow revealed a new aspect of the case against Manning, namely that they believed because Manning had accessed an Army intelligence report on the “threat” posed by WikiLeaks he would have known that WikiLeaks was valuable to the nation’s enemies. It is an argument that essentially uses his decision to access the report against him.(Keep in mind the government maintains he should never have read this report.)

The report itself is actually ambiguous about whether or not our adversaries were using WikiLeaked data. It both presents it as a possibility that we didn’t currently have intelligence on, then presumes it.

(S//NF) Will the Wikileaks.org Web site be used by FISS, foreign military services, foreign insurgents, or terrorist groups to collect sensitive or classified US Army information posted to the Wikileaks.org Web site?
(S//NF) Will the Wikileaks.org Web site be used by FISS, foreign military services, or foreign terrorist groups to spread propaganda, misinformation, or disinformation or to conduct perception or influence operations to discredit the US Army?
[snip]
(S//NF) It must be presumed that Wikileaks.org has or will receive sensitive or classified DoD documents in the future. This information will be published and analyzed over time by a variety of personnel and organizations with the goal of influencing US policy. In addition, it must also be presumed that foreign adversaries will review and assess any DoD sensitive or classified information posted to the Wikileaks.org Web site. [my emphasis]

But I’m more interested in three other things Manning would have learned from that document. First, he’d have learned from this paragraph that the way to make sure someone didn’t fulfill his “obligation to expose alleged wrongdoing within DoD through inappropriate venues” is not training about the appropriate venues to expose DOD wrongdoing, but via better info security — that is, by ensuring that alleged wrongdoing remains secret.

(U//FOUO) The unauthorized release of DoD information to Wikileaks.org highlights the need for strong counterintelligence, antiterrorism, force protection, information assurance, INFOSEC, and OPSEC programs to train Army personnel on the proper procedures for protecting sensitive or classified information, to understand the insider threat, and to report suspicious activities. In addition, personnel need to know proper procedures for reporting the loss, theft, or comprise of hard or soft copy documents with sensitive information or classified information to the appropriate unit, law enforcement, or counterintelligence personnel. Unfortunately, such programs will not deter insiders from following what they believe is their obligation to expose alleged wrongdoing within DoD through inappropriate venues. Persons engaged in such activity already know how to properly handle and secure sensitive or classified information from these various security and education programs and has chosen to flout them.

And of course, the INFOSEC DIA believed was the answer to potential exposure of alleged wrongdoing is precisely the INFOSEC that the Army had failed to achieve 18-24 months later, when Manning was leaking this material, the INFOSEC DOD refused to implement even after a real adversary had inserted malware into our computers in Iraq via use of removable media, the same means Manning used to get this information.

If this document is proof Manning should have known (the conflicting statements notwithstanding) that leaking to WikiLeaks would amount to leaking to our adversaries, it’s also proof that DOD knew they had an INFOSEC problem that might lead to leaked information, one they pointedly didn’t address.

But I’m also amused by one of the case studies in the danger of leaked WikiLeaks information: that it might be used to suggest DOD is getting gouged by our contractors working on JIEDDO, our counter-IED program.

(S//NF) The author of the above-mentioned article incorrectly interprets the leaked data regarding the components and fielding of the Warlock system, resulting in unsupportable and faulty conclusions to allege war profiteering, price gouging and increased revenues by DoD contractors involved in counter-IED development efforts.

Mind you, the claim that JIEDDO contractors were robbing us blind is a conclusion shared by some very respected defense reporters.

Launched in February 2006 with an urgent goal — to save U.S. soldiers from being killed by roadside bombs in Iraq — a small Pentagon agency ballooned into a bureaucratic giant fueled by that flourishing arm of the defense establishment: private contractors.

An examination by the Center for Public Integrity and McClatchy of the Joint Improvised Explosive Device Defeat Organization revealed an agency so dominated by contractors that the ratio of contractors to government employees has reached six to one.

As well as by GAO itself.

In other words, while this internal report claimed WikiLeaks inaccurately concluded that JIEDDO was a boondoggle, in fact WikiLeaks’ conclusion might have been one of the earliest indications of a problem later confirmed by other outlets, that JIEDDO was a boondoggle.

Even by 2009, Manning might have read this document and concluded that WikiLeaks had served precisely the outcome it claimed, exposing wrongdoing.

Finally, check out some of these classification marks, including the questions about whether or not our adversaries might exploit publicly available information bolded above. Not conclusions, mind you, but questions (intelligence gaps, really).

That’s a secret we have to keep from our allies? Really?

No. It’s not. It’s an example of rampant overclassification.

To sum up: not only doesn’t this report assert that leaking to WikiLeaks amounts to leaking to our adversaries; on the contrary, the report identifies that possibility as a data gap. But it also provides several pieces of support for the necessity of something like WikiLeaks to report government wrongdoing.

Update: Swapped in Gosztola’s corrected post on CIA/Army Intel document.

Classification Games Hiding the Afghan Defeat

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Amidst all the discussion of the Administration’s crack-down on leaks, two details have made it clear the Administration is using its own abuse of classification to hide reports of our impending defeat in Afghanistan.

Administration leaks to enforce and protect our pro-corruption policy

One of those comes from Sarah Chayes, the former Stanley McChrystal advisor. She was last seen on the pages of this blog complaining about CIA support for corruption in Afghanistan. In a new piece, she offers one of the most interesting takes on the Administration’s pursuit of leaks.

While her main point is that if reporters were as exposed as their sources to legal consequences for leaks, they might better judge the truly important leaks, she throws some fascinating details showing how broken the classification system is.

Far too much information is protected by unwarranted classification. It’s hard to take a system seriously that places so many gigabytes of material that are not critical to national security under the same umbrella as the few nuggets that are. I’ve seen a New Yorker article included among prep documents for a National Security Council meeting stamped SECRET//NOFORN (meaning that only cleared U.S. citizens were allowed to read it).

[snip]

In September 2010, a flurry of coverage in major U.S. newspapers reported a supposed government decision on how corruption in Afghanistan would be handled. Perusing the articles with growing wonder, I looked down at a memo on my desk. Not only were passages quoted from it classified, the document was also watermarked DRAFT. No decision had been made yet because debate on the draft had not even reached the level of Cabinet secretaries. It was a classic Washington case of offensive leaking. For months, I was convinced that the perpetrator was the late Richard Holbrooke, then special representative to Afghanistan and Pakistan. But I kept asking reporters. Finally I traced the leak to a senior White House official, whose career has progressed untroubled.

She makes it very clear what the second example of classification abuse is. While she links to this early September 2010 WaPo article describing a decision to ignore corruption in Afghanistan, in her own account of what happened, she points to mid-September as the period when it became clear top figures in the Administration had bought off on supporting corruption in exchange for “progress” towards wiping out the Taliban.

Effectively, Chayes is suggesting that a top White House figure effectively won the debate in support of ignoring corruption in Afghanistan by leaking a draft classified decision as a fait accompli. Given her suggestion that this person’s career has “progressed,” it’s a safe bet that it is one of the people — like current National Security Advisor Tom Donilan, current CIA Director John Brennan, or current Deputy National Security Advisor Ben Rhodes — who got promoted since this leak.

Chayes doesn’t provide much guidance about which New Yorker article was classified SECRET and used in a National Security Council meeting, but I’m betting it was this Dexter Filkins article that rehearses the same issues of corruption. As I’ve noted, while the NYT (where Filkins had recently departed) only hinted at how badly the collapse of the Kabul Bank implicated Hamid Karzai’s corrupt administration, Filkins provided extensive details. The Filkins article, like the earlier series of articles, arises out of the decision to capitulate to CIA bagman Muhammad Zia Salehi’s blackmail to avoid prosecution.

Salehi telephoned Karzai from his jail cell. “He told Karzai, ‘If I spend one night in jail, I’ll bring the whole thing down,’ ” the Western official recalled.

Out of fear Salehi would “bring the whole thing down,” it seems, the Obama Administration chose to abuse the classification system to ignore — while hiding the true extent of — the corruption of our Afghan partners.

Selective protection of CIA’s efforts to convince our allies to remain in Afghanistan

Meanwhile, one of the things the government convinced Bradley Manning trial judge Denise Lind to keep secret even after it had been inadvertently released once appears to relate to CIA’s efforts to shore up support for the Afghan War among our European allies.

Alexa O’Brien makes a compelling argument that one of the witnesses who will testify to the harm allegedly caused by Manning’s leaks in secret is Robert Roland. She further argues that Roland will testify about 2 CIA Red Cell Memos, one of which strategizes how to ward off political opposition to the Afghan War of the kind that got our coalition partners in the Netherlands ousted (the other, which I wrote about here, pertains to concerns that other countries will figure out we export terrorism). The analysis of the memo itself is rather unsophisticated; it argues if we emphasize the benefit for women of our continued presence in Afghanistan and the support one poll showed Afghans had for our presence, it’ll be enough to keep French and German voters in line.

But I guess it is rather embarrassing to have CIA’s reflections, however naive, on how to counter democratic opposition to war out there. And I suppose Roland’s identity might have been protected until whatever reviewer missed it in one of Manning’s defense filings.

At this point, however, both are public. Yet Roland’s identity and the CIA reports are being treated with far more sensitivity than far more damning State reports that will be discussed publicly.

Ah well. The report I want to see is the CIA plan to shore up support for the Afghan war as it becomes more and more clear the war serves only to prop up the crooks the CIA has been bribing for 12 years.

First They Came for James Risen …

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I don’t mean to suggest the journalism world did not object to the three subpoenas James Risen got in the Jeffrey Sterling case. They did.

But today’s news that Fox’s James Rosen was accused of being an “Aider or Abettor” to Stephen Jin-Woo Kim’s alleged crime of leaking information on Korea is just part of a progression. (See also WaPo’s story which broke this.)

“I believe there is probable cause to conclude that the contents of the wire and electronic communications pertaining to the SUBJECT ACCOUNT [the gmail account of Mr. Rosen] are evidence, fruits and instrumentalities of criminal violations of 18 U.S.C. 793 (Unauthorized Disclosure of National Defense Information), and that there is probable cause to believe that the Reporter has committed or is committing a violation of section 793(d), as an aider and abettor and/or co-conspirator, to which the materials relate,” wrote FBI agent Reginald B. Reyes in a May 28, 2010 application for a search warrant.

The search warrant was issued in the course of an investigation into a suspected leak of classified information allegedly committed by Stephen Jin-Woo Kim, a former State Department contractor, who was indicted in August 2010.

The Reyes affidavit all but eliminates the traditional distinction in classified leak investigations between sources, who are bound by a non-disclosure agreement, and reporters, who are protected by the First Amendment as long as they do not commit a crime.

[snip]

As evidence of Mr. Rosen’s purported culpability, the Reyes affidavit notes that Rosen and Kim used aliases in their communications (Kim was “Leo” and Rosen was “Alex”) and in other ways sought to maintain confidentiality.

“From the beginning of their relationship, the Reporter asked, solicited and encouraged Mr. Kim to disclose sensitive United States internal documents and intelligence information…. The Reporter did so by employing flattery and playing to Mr. Kim’s vanity and ego.”

“Much like an intelligence officer would run an [sic] clandestine intelligence source, the Reporter instructed Mr. Kim on a covert communications plan… to facilitate communication with Mr. Kim and perhaps other sources of information.”

After all, in January 2011 (which was actually after this affidavit, but appeared 10 months before this affidavit was unsealed), DOJ argued that when Jeffrey Sterling leaked information to James Risen about a dangerous plot to deal nuke blueprints to Iran, his actions were worse than what DOJ called “typical espionage.”

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

Then, in March 2011, DOD charged Bradley Manning with aiding the enemy because he leaked a bunch of stuff to us.

In other words, during a period from May 2010 through January 2011, Eric Holder’s DOJ was developing this theory under which journalists were criminals, though it’s just now that we’re all noticing this May 2010 affidavit that lays the groundwork for that theory.

Maybe that development was predictable, given that during precisely that time period, the lawyer who fucked up the Ted Stevens prosecution, William Welch, was in charge of prosecuting leaks (though it’s not clear he had a role in Kim’s prosecution before he left in 2011).

But it’s worth noting the strategy — and the purpose it serves — because it is almost certainly still in effect. FBI Special Agent Reginald Reyes accused Rosen of being a criminal so he could get around the Privacy Protection Act protections for media work product (See pages 4 and following), which specifically exempts “fruits of a crime” or “property … used [] as a means of committing a criminal offense.” Then he further used it to argue against giving notice to Fox or Rosen.

Because of the Reporter’s own potential criminal liability in this matter, we believe that requesting the voluntary production of the materials from Reporter would be futile and would pose a substantial threat to the integrity of the investigation and of the evidence we seek to obtain by the warrant. (29)

While the AP’s phone records weren’t taken via a warrant, it would be unsurprising if the government is still using this formula — journalists = criminals and therefore cannot have notice — to collect evidence. Indeed, that may be one reason why we haven’t seen the subpoena to the AP.

Of course, this is not just about journalists. In this schema, providing information about what our government is doing in our name to citizens constitutes a crime.

This criminalization of journalism is a fundamentally anti-democratic stance.

 

Is the Government Going to Claim Bradley Manning “Harmed” the US by Exposing Drone Details?

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Screen shot 2013-04-17 at 9.46.44 PMLast week’s Bradley Manning hearing significantly focused on how much the government could hide about its witnesses. A big part of the discussion pertained to how a Seal Team 6 member would testify to finding WikiLeaks material at Osama bin Laden’s compound. But the government also advanced its case to have a list of other government employees testify, at least partly, in secret, mostly in the “harm” phase of sentencing.

Here’s Alexa O’Brien’s transcription of that list (click through for the list). There are a number of interesting names on this list. But the one that popped out at me is Ambassador Stephen Seche.

You see, while Seche was Chargé d’Affaires in Syria mid-decade and more recently was in charge of Near Eastern affairs at State, he will almost certainly testify about how WikiLeaks disclosures of cables he wrote while Ambassador to Yemen “harmed” relations with that country.

Indeed, as the image above shows, Seche wrote one of the most newsworthy cables ever released by WikiLeaks, the January 4, 2010 cable recounting a January 2 meeting between then CentCom head David Petraeus and Yemeni President Ali Abdullah Saleh.

The cable is best known for this statement, laying out the agreement by which Saleh would lie about missile and drone strikes and pretend they were Yemen’s.

“We’ll continue saying the bombs are ours, not yours,” Saleh said, prompting Deputy Prime Minister Alimi to joke that he had just “lied” by telling Parliament that the bombs in Arhab, Abyan, and Shebwa were American-made but deployed by the ROYG.

But there are several other inflammatory details in this cable. There’s the nugget of our agreement to shift from using cruise missiles to drones.

Saleh did not have any objection, however, to General Petraeus’ proposal to move away from the use of cruise missiles and instead have U.S. fixed-wing bombers circle outside Yemeni territory, “out of sight,” and engage AQAP targets when actionable intelligence became available.

Potentially more damning still, there’s the passage that suggests Anwar al-Awlaki was an intended target of the December 24, 2009 attack (a day before the US believed he was an operational and at least a month before it had evidence he was). In addition, there’s Petraeus’ absolutely incorrect contention that only three civilians had died at al-Majala instead of the Bedouin clan we know died.

(S/NF) Saleh praised the December 17 and 24 strikes against AQAP but said that “mistakes were made” in the killing of civilians in Abyan. The General responded that the only civilians killed were the wife and two children of an AQAP operative at the site, prompting Saleh to plunge into a lengthy and confusing aside with Deputy Prime Minister Alimi and Minister of Defense Ali regarding the number of terrorists versus civilians killed in the strike. (Comment: Saleh’s conversation on the civilian casualties suggests he has not been well briefed by his advisors on the strike in Abyan, a site that the ROYG has been unable to access to determine with any certainty the level of collateral damage. End Comment.) AQAP leader Nassr al-Wahishi and extremist cleric Anwar al-Awlaki may still be alive, Saleh said, but the December strikes had already caused al-Qaeda operatives to turn themselves in to authorities and residents in affected areas to deny refuge to al-Qaeda. [my emphasis]

At the very least, this passage demonstrates how shoddy our intelligence was both before and after we killed a bunch of civilians. But it may also support the case that the first time we tried to kill Awlaki, we didn’t believe he met the standards laid out in the memo that would ultimately authorize his killing: being a senior operational leader of AQAP involved in planning attacks against the US.

In other words, this cable, by itself, may include evidence of possible war and domestic crimes.

And yet the government wants to send Seche to a classified hearing to talk about the “harm” Bradley Manning caused.

While I think it possible that release of this particular cable made it harder for Djibouti to partner with us (recall we moved the drones targeting Awlaki to Saudi Arabia in 2011), the government at least maintains that Yemen continues to allow us to shoot drones in the country.

Yet it seems highly likely the government wants to claim disclosures of crimes like this amounted to “harm” of the US.

But here’s the punchline.

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