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DOJ’s Pre-Ass-Handing Capitulation

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In its February 16 application for an All Writs Act to force Apple to help crack Syed Rizwan Farook’s phone, DOJ asserted,

Apple has the exclusive technical means which would assist the government in completing its search, but has declined to provide that assistance voluntarily.

[snip]

2. The government requires Apple’s assistance to access the SUBJECT DEVICE to determine, among other things, who Farook and Malik may have communicated with to plan and carry out the IRC shootings, where Farook and Malik may have traveled to and from before and after the incident, and other pertinent information that would provide more information about their and others’ involvement in the deadly shooting.

[snip]

3. As an initial matter, the assistance sought can only be provided by Apple.

[snip]

4. Because iOS software must be cryptographically signed by Apple, only Apple is able to modify the iOS software to change the setting or prevent execution of the function.

[snip]

5. Apple’s assistance is necessary to effectuate the warrant.

[snip]

6. This indicates to the FBI that Farook may have disabled the automatic iCloud backup function to hide evidence, and demonstrates that there may be relevant, critical communications and data around the time of the shooting that has thus far not been accessed, may reside solely on the SUBJECT DEVICE, and cannot be accessed by any other means known to either the government or Apple.

FBI’s forensics guy Christopher Pluhar claimed,

7. I have explored other means of obtaining this information with employees of Apple and with technical experts at the FBI, and we have been unable to identify any other methods feasible for gaining access to the currently inaccessible data stored within the SUBJECT DEVICE.

On February 19, DOJ claimed,

8. The phone may contain critical communications and data prior to and around the time of the shooting that, thus far: (1) has not been accessed; (2) may reside solely on the phone; and (3) cannot be accessed by any other means known to either the government or Apple.

[snip]

9. Apple left the government with no option other than to apply to this Court for the Order issued on February 16, 2016.

[snip]

10. Accordingly, there may be critical communications and data prior to and around the time of the shooting that thus far has not been accessed, may reside solely on the SUBJECT DEVICE; and cannot be accessed by any other means known to either the government or Apple.

[snip]

11. Especially but not only because iPhones will only run software cryptographically signed by Apple, and because Apple restricts access to the source code of the software that creates these obstacles, no other party has the ability to assist the government in preventing these features from obstructing the search ordered by the Court pursuant to the warrant.

[snip]

12. Apple’s close relationship to the iPhone and its software, both legally and technically – which are the produce of Apple’s own design – makes compelling assistance from Apple a permissible and indispensable means of executing the warrant.

[snip]

13. Apple’s assistance is also necessary to effectuate the warrant.

[snip]

14. Moreover, as discussed above, Apple’s assistance is necessary because without the access to Apple’s software code and ability to cryptographically sign code for the SUBJECT DEVICE that only Apple has, the FBI cannot attempt to determine the passcode without fear of permanent loss of access to the data or excessive time delay. Indeed, after reviewing a number of other suggestions to obtain the data from the SUBJECT DEVICE with Apple, technicians from both Apple and the FBI agreed that they were unable to identify any other methods – besides that which is now ordered by this Court – that are feasible for gaining access to the currently inaccessible data on the SUBJECT DEVICE. There can thus be no question that Apple’s assistance is necessary, and that the Order was therefore properly issued.

Almost immediately after the government made these claims, a number of security researchers I follow not only described ways FBI might be able to get into the phone, but revealed that FBI had not returned calls with suggestions.

On February 25, Apple pointed out the government hadn’t exhausted possible of means of getting into the phone.

Moreover, the government has not made any showing that it sought or received technical assistance from other federal agencies with expertise in digital forensics, which assistance might obviate the need to conscript Apple to create the back door it now seeks. See Hanna Decl. Ex. DD at 34–36 [October 26, 2015 Transcript] (Judge Orenstein asking the government “to make a representation for purposes of the All Writs Act” as to whether the “entire Government,” including the “intelligence community,” did or did not have the capability to decrypt an iPhone, and the government responding that “federal prosecutors don’t have an obligation to consult the intelligence community in order to investigate crime”). As such, the government has not demonstrated that “there is no conceivable way” to extract data from the phone.

On March 1, members of Congress and House Judiciary Committee witness Susan Landau suggested there were other ways to get into the phone (indeed, Darrell Issa, who was one who made that point, is doing a bit of a victory lap). During the hearing, as Jim Comey insisted that if people had ways to get into the phone, they should call FBI, researchers noted they had done so and gotten no response.

Issa: Is the burden so high on you that you could not defeat this product, either through getting the source code and changing it or some other means? Are you testifying to that?

Comey: I see. We wouldn’t be litigating if we could. We have engaged all parts of the U.S. Government to see does anybody that has a way, short of asking Apple to do it, with a 5C running iOS 9 to do this, and we don not.

[snip]

a) Comey: I have reasonable confidence, in fact, I have high confidence that all elements of the US government have focused on this problem and have had great conversations with Apple. Apple has never suggested to us that there’s another way to do it other than what they’ve been asked to do in the All Writs Act.

[snip]

b) Comey [in response to Chu]: We’ve talked to anybody who will talk to us about it, and I welcome additional suggestions. Again, you have to be very specific: 5C running iOS 9, what are the capabilities against that phone. There are versions of different phone manufacturers and combinations of models and operating system that it is possible to break a phone without having to ask the manufacturer to do it. We have not found a way to break the 5C running iOS 9.

[snip]

c) Comey [in response to Bass]: There are actually 16 other members of the US intelligence community. It pains me to say this, because I — in a way, we benefit from the myth that is the product of maybe too much television. The only thing that’s true on television is we remain very attractive people, but we don’t have the capabilities that people sometimes on TV imagine us to have. If we could have done this quietly and privately we would have done it.

[snip]

Cicilline: I think this is a very important question for me. If, in fact — is it in fact the case that the government doesn’t have the ability, including the Department of Homeland Security Investigations, and all of the other intelligence agencies to do what it is that you claim is necessary to access this information?

d) Comey: Yes.

While Comey’s statements were not so absolutist as to suggest that only Apple could break into this phone, Comey repeatedly said the government could not do it.

On March 10, DOJ claimed,

15. The government and the community need to know what is on the terrorist’s phone, and the government needs Apple’s assistance to find out.

[snip]

16. Apple alone can remove those barriers so that the FBI can search the phone, and it can do so without undue burden.

[snip]

17. Without Apple’s assistance, the government cannot carry out the search of Farook’s iPhone authorized by the search warrant. Apple has ensured that its assistance is necessary by requiring its electronic signature to run any program on the iPhone. Even if the Court ordered Apple to provide the government with Apple’s cryptographic keys and source code, Apple itself has implied that the government could not disable the requisite features because it “would have insufficient knowledge of Apple’s software and design protocols to be effective.”

[snip]

18. Regardless, even if absolute necessity were required, the undisputed evidence is that the FBI cannot unlock Farook’s phone without Apple’s assistance.

[snip]

19. Apple deliberately established a security paradigm that keeps Apple intimately connected to its iPhones. This same paradigm makes Apple’s assistance necessary for executing the lawful warrant to search Farook’s iPhone.

On March 15, SSCI Member Ron Wyden thrice suggested someone should ask NSA if they could hack into this phone.

On March 21, DOJ wrote this:

Specifically, since recovering Farook’s iPhone on December 3, 2015, the FBI has continued to research methods to gain access to the data stored on it. The FBI did not cease its efforts after this litigation began. As the FBI continued to conduct its own research, and as a result of the worldwide publicity and attention on this case, others outside the U.S. government have continued to contact the U.S. government offering avenues of possible research.

On Sunday, March 20, 2016, an outside party demonstrated to the FBI a possible method for unlocking Farook’s iPhone

You might think that FBI really did suddenly find a way to hack the phone, after insisting over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over they could only get into it with Apple’s help. Indeed, the described timing coincides remarkably well with the announcement that some Johns Hopkins researchers had found a flaw in iMessage’s encryption (which shouldn’t relate at all to breaking into such phones, though it is possible FBI is really after iMessages they think will be on the phone). Indeed, in describing the iMessage vulnerability, Johns Hopkins prof Matthew Green ties the discovery to the Apple fight.

Now before I go further, it’s worth noting that the security of a text messaging protocol may not seem like the most important problem in computer security. And under normal circumstances I might agree with you. But today the circumstances are anything but normal: encryption systems like iMessage are at the center of a critical national debate over the role of technology companies in assisting law enforcement.

A particularly unfortunate aspect of this controversy has been the repeated call for U.S. technology companies to add “backdoors” to end-to-end encryption systems such as iMessage. I’ve always felt that one of the most compelling arguments against this approach — an argument I’ve made along with other colleagues — is that we just don’t know how to construct such backdoors securely. But lately I’ve come to believe that this position doesn’t go far enough — in the sense that it is woefully optimistic. The fact of the matter is that forget backdoors: webarely know how to make encryption workat all. If anything, this work makes me much gloomier about the subject.

Plus, as Rayne noted to me earlier, Ellen Nakashima’s first report on this went up just after midnight on what would be the morning of March 21, suggesting she had an embargo (though that may be tied to Apple’s fix for the vulnerability). [Update: Correction — her story accidentally got posted then unposted earlier than that.]

But that would require ignoring the 19 plus times (ignoring Jim Comey’s March 1 testimony) that DOJ insisted the only way they could get into the phone was by having Apple’s help hacking it (though note most of those claims only considered the ways that Apple might crack the phone, not ways that, say, NSA might). You’d have to ignore the problems even within these statements. You’d have to ignore the conflicting sworn testimony from FBI’s witnesses (including Jim Comey).

It turns out FBI’s public argument went to shit fast. Considering the likelihood they screwed up with the forensics on this phone and that there’s absolutely nothing of interest on the phone, I take this as an easy retreat for them.

But that doesn’t mean this is over. Remember, FBI has already moved to unlock this iPhone, of similar vintage to Farook’s, which seems more central to an actual investigation (even if FBI won’t be able to scream terrorterrorterror). There are two more encrypted phones FBI has asked Apple to break open.

But for now, I take this as FBI’s attempt to take its claims back into the shadows, where it’s not so easy to expose the giant holes in their claims.

Updated with Comey testimony.

Nine Members of Congress Vote to Postpone the Fourth Amendment

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Broadcast live streaming video on Ustream

John Conyers, Jim Sensenbrenner, Darrell Issa, Steve Cohen, Jerry Nadler, Sheila Jackson Lee, Trey Gowdy,  John Ratcliffe, Bob Goodlatte all voted to postpone the Fourth Amendment today.

At issue was Ted Poe’s amendment to the USA Freedom Act (USA F-ReDux; see the debate starting around 1:15), which prohibited warrantless back door searches and requiring companies from inserting technical back doors.

One after another House Judiciary Committee member claimed to support the amendment and, it seems, agreed that back door searches violate the Fourth Amendment. Though the claims of support from John Ratcliffe, who confessed to using back door searches as a US Attorney, and Bob Goodlatte, who voted against the Massie-Lofgren amendment last year, are suspect. But all of them claimed they needed to vote against the amendment to ensure the USA Freedom Act itself passed.

That judgment may or may not be correct, but it’s a fairly remarkable claim. Not because — in the case of people like Jerry Nader and John Conyers — there’s any question about their support for the Fourth Amendment. But because the committee in charge of guarding the Constitution could not do so because the Intelligence Committee had the sway to override their influence. That was a point made, at length, by both Jim Jordan and Ted Poe, with the latter introducing the point that those in support of the amendment but voting against it had basically agreed to postpone the Fourth Amendment until Section 702 reauthorization in 2017.

(1:37) Jordan: A vote for this amendment is not a vote to kill the bill. It’s not a vote for a poison pill. It’s not a vote to blow up the deal. It’s a vote for the Fourth Amendment. Plain and simple. All the Gentleman says in his amendment is, if you’re going to get information from an American citizen, you need a warrant. Imagine that? Consistent with the Fourth Amendment. And if this committee, the Judiciary Committee, the committee most responsible for protecting the Bill of Rights and the Constitution and fundamental liberties, if we can’t support this amendment, I just don’t see I it. I get all the arguments that you’re making, and they’re all good and the process and everything else but only in Congress does that trump — I mean, that should never trump the Fourth Amendment.

(1:49) Poe; We are it. The Judiciary Committee is it. We are the ones that are protecting or are supposed to protect, and I think we do, that Constitution that we have. And we’re not talking about postponing an Appropriations amount of money. We’re not talking about postponing building a bridge. We’re talking about postponing the Fourth Amendment — and letting it apply to American citizens — for at least two years. This is our opportunity. If the politics says that the Intel Committee — this amendment may be so important to them that they don’t like it they’ll kill the deal then maybe we need to reevaluate our position in that we ought to push forward for this amendment. Because it’s a constitutional protection that we demand occur for American citizens and we want it now. Not postpone it down the road to live to fight another day. I’ve heard that phrase so long in this Congress, for the last 10 years, live to fight another day, let’s kick the can down the road. You know? I think we have to do what we are supposed to do as a Committee. And most of the members of the Committee support this idea, they agree with the Fourth Amendment, that it ought to apply to American citizens under these circumstances. The Federal government is intrusive and abusive, trying to tell companies that they want to get information and the back door comments that Ms. Lofgren has talked about. We can prevent that. I think we should support the amendment and then we should fight to keep this in the legislation and bring the legislation to the floor and let the Intel Committee vote against the Fourth Amendment if that’s what they really want to do. And as far as leadership goes I think we ought to just bring it to the floor. Politely make sure that the law, the Constitution, trumps politics. Or we can let politics trump the Constitution. That’s really the decision.

Nevertheless, only Louie Gohmert, Raul Labrador, Zoe Lofgren, Suzan DelBene, Hakeem Jeffries, David Cicilline, and one other Congressman–possibly Farenthold–supported the amendment.

The committee purportedly overseeing the Intelligence Community and ensuring it doesn’t violate the Constitution has instead dictated to the committee that guards the Constitution it won’t be permitted to do its job.

Congress Currently Has Access to the Phone Dragnet Query Results

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When Bernie Sanders asked the NSA whether it spied on Members of Congress, Keith Alexander responded, in part,

Among those protections is the condition that NSA can query the metadata only based on phone numbers reasonably suspected to be associated with specific foreign terrorist groups. For that reason, NSA cannot lawfully search to determine if any records NSA has received under the program have included metadata of the phone calls of any member of Congress, other American elected officials, or any other American without that predicate.

Alexander’s response was dated January 10, 2014, one week after the current dragnet order was signed.

It’s an interesting response, because one of the changes made to the dragnet access rules with the January 3 order was to provide Congress access to the data for oversight reasons. Paragraph 3D reads, in part,

Notwithstanding the above requirements, NSA may share the results from intelligence analysis queries of the BR metadata, including United States person information, with Legislative Branch personnel to facilitate lawful oversight functions.

This doesn’t actually mean Sanders (and Darrell Issa, Jerrold Nadler, and Jim Sensenbrenner, who sent a letter on just this issue yesterday) can just query up the database to find out if their records are in there. The legislature can only get query results — it can’t perform queries. And as of last week, all query identifiers have to be approved by the FISC.

Still, they might legitimately ask to see what is in the corporate store, the database including some or all past query results, which may include hundreds of millions of Americans’ call records. And Nadler and Sensenbrenner — as members of the Judiciary Committee — can legitimately claim to play an oversight role over the dragnet.

So why don’t they just ask to shop the corporate store, complete with all the US person data, as permitted by this dragnet order? While they’re at it, why not check to see if the 6 McClatchy journalists whose FOIA NSA just rejected have been dumped into the corporate store? (No, I don’t think giving Congress this access is wise, but since they have it, why not use it?)

Incidentally, this access for legislative personnel is not unprecedented. Starting on February 25, 2010 and lasting through 3 orders (so until October 29, 2010, though someone should check my work on this point) the dragnet orders included even broader language.

Notwithstanding the above requirements, NSA may share certain information, as appropriate, derived from the BR metadata, including U.S. person identifying information, with Executive Branch and Legislative Branch personnel in order to enable them to fulfill their lawful oversight functions…

Of course at that point, most of Congress had no real understanding of what the dragnet is.

Now that they do, Nadler and Sensenbrenner should use the clear provision of the dragnet order as an opportunity to develop a better understanding of what happens to query results and how broadly they implicate average Americans’ privacy.

Update: Added short explanation of corporate store.

Darrell Issa’s Net Worth Goes Up 152% in One Year

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Screen shot 2013-09-17 at 1.23.12 PM

It is wealth inequality day, in which, on the same day, the Census Bureau releases information on poverty and CQ releases the list of richest members of Congress.

As for poverty: things didn’t get statistically worse, but things didn’t get better at all, not even with decreasing unemployment (which, admittedly, is largely about labor market participation). (In good news, President Obama today extended minimum wage and overtime protections to home healthcare workers, though he bizarrely delayed implementation of the rule until 2015.)

As for wealth, 50 members of Congress are worth $6.67 million or more.

No wonder they seem so distant from the worries of their constituents.

But the truly mind-blowing detail from CQ’s wealthiest list is the remarkable luck Darrell Issa had in the last year. In just the last year, his net worth has increased from $140.55 million to $355.38 million — or a net worth increase of 152.8%. (He also became the richest member, but would have anyway on account of John Kerry’s retirement.)

No wonder he gins up factually problematic attacks on the IRS.

Here’s how CQ describes Issa managed such a feat:

The longtime denizen of the 50 Richest list finally reached the No. 1 spot after making about $135 million in 2012, mostly from investments that swelled in a bull market.

[snip]

Issa appears to make his money in the stock market. He ended 2012 with at least $390 million in bonds and stocks. His true worth, however, could be far greater. Members of Congress aren’t obligated to disclose exact figures, only ranges, and Issa has seven accounts with a minimum of $50 million, which is the highest category available on standard disclosure forms.

Issa also has about $75 million in outstanding loans, owing at least $50 million to Merrill Lynch and $25 million to Union Bank. Whether he truly is the richest member of Congress actually depends on precisely how much money he owes to Merrill Lynch.

So in the last year in which insider trading was legal for members Congress, Darrell Issa managed to make at least $100 million.

And yet he believes Benghazi is the most urgent matter facing this country.

The Day After the Election, Mike Rogers Finally Decides To Do His Job

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On October 2, 26 days ago and over a month before the election, I asked why Darrell Issa, rather than House Intelligence Chair Mike Rogers, was leading an investigation into the Benghazi attack.

Issa’s subsequent investigation worked out as expected: a big showy hearing, sensitive information revealed, and a month of misleading leaks. Even Dana Milbank realized having Issa lead investigation didn’t make sense.

Lo and behold, today, the day after the election, the House Intelligence Committee has revealed that they–like their counterpart in the Senate–will conduct an investigation.

Finally! A serious investigation rather than a transparent effort to trump up an October Surprise.

If CIA’s Benghazi Annex Was So Secret, Why Were Its Personnel Being Harassed?

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Of all the stories reporting David Petraeus’ pushback on the Benghazi story, WSJ’s was clearly the most thorough.

But I want to question this claim.

The significance of the annex was a well-kept secret in Benghazi. A neighbor said that he never saw Libyan security guards at the annex compound and that the street never had any extra police presence or security cordon. “If the CIA was living there, we never knew it,” the neighbor said.

The comment is part of the CIA’s partial disclosure about its activities in Benghazi, which makes it clear that the Benghazi presence was really a CIA operation with a diplomatic face.

The spy agency was the first to set up shop. It began building up its presence there soon after the Libyan revolution started in February 2011. The uprising overturned what had been a tight working relationship between the Gadhafi regime’s spy services and the Americans, creating a gap that the CIA presence sought to fill, officials said.

The CIA worked from a compound publicly referred to as the “annex,” which was given a State Department office name to disguise its purpose. The agency focused on countering proliferation and terrorist threats, said an American security contractor who has worked closely with CIA, the Pentagon and State. A main concern was the spread of weapons and militant influences throughout the region, including in Mali, Somalia and Syria, this person said.

Libyan officials say they were kept in the dark about what the CIA was doing in Benghazi. “The Americans had people coming and going with great frequency. Frankly, our records were never clear [about] who was out there” in Benghazi, said a senior Libyan government official in Tripoli.

In mid-2011, the State Department established its consulate in Benghazi, to have a diplomatic presence in the birthplace of the Libyan revolution. At the annex, many of the analysts and officers had what is referred to in intelligence circles as “light cover,” carrying U.S. diplomatic passports.

All this “transparency” about what the spooks were doing in Benghazi appears designed to show why CIA prioritized the Annex over the Mission compound the night of the attack.

But I don’t buy the claim that the Libyans were as clueless about the spooks’ presence as this story suggests.

This July 2012 review of security incidents in the last two years (see PDF 67-117, particularly 89 and 99-100) describes two events this year in which people who appear to have been tied to CIA’s mission were harassed by militias.

First, on February 19, two women described as “Mission personnel” but not by rank were stopped late at night in a “hastily crafted checkpoint” on their way back from the airport.

U.S. Mission personnel were detained by militia personnel after they drove through a previously unknown and hastily crafted checkpoint in Benghazi. The Mission vehicle and personnel were returning from Benghazi’s Benina airport at approximately 0100 hours. The Mission vehicle was pursued and stopped by a militia vehicle and additional militia personnel arrived at the site after the Mission vehicle was stopped. The two female Employees in the vehicle identified themselves as U.S. diplomats by referring to their vehicle license plate, diplomatic placard, and Ministry of Foreign Affairs ID card but were still prevented from leaving. The one English speaking militia member at the checkpoint demanded to see their passports and to inspect their cargo. Mission personnel refused access to the vehicle and its cargo. The detained employees contacted Mission security personnel and 17 Feb Martyrs Brigade QRF members, who responded to the checkpoint and were able to resolve the situation with the checkpoint commander.

Then, on April 27, two South African contractors working on US funded disarmament projects were kidnapped, interrogated, then released.

Two South African nationals, in Libya as part of a U.S. funded weapons abatement, UXO removal, and demining project, were detained at gunpoint while walking in a residential area. At approximately 0630 hrs, a Ford sedan passed the two men while they were walking, turned around and returned to where the men were, and a soldier with an AK series assault rifle exited the vehicle. The soldier directed them to get into the vehicle. The soldier took one of the South African’s company ID, read the Arabic version on the back of the ID card, and examined the passport and visa. The two South Africans were driven to a house at high speed, where the soldier crashed the gate open with his vehicle. A second militia member wearing a hood and armed with an AK47, entered the vehicle, and questioned the two expatriates regarding their nationality, employer, and purpose for being in Libya. The vehicle departed the residential building at high-speed but stopped in order for the militia members to blindfold the two South Africans. The South Africans were then driven to a second property where a third, unidentified person joined the first two militia members. The milita members reviewed the passports, employer ID cards, and appeared to be discussing next steps. The milita members returned the South Africans’ documents and cards and then drove them back to the initial point where they were directed into the vehicle. The South Africans’ [sic] remained blindfolded until they were brought to the initial pick-up point. The milita members told the South Africans’ [sic] that they were detained “for their own safety”, shook hands with the South Africans’ [sic] and allowed them to return to their residence. The incident lasted for approximately 2 hours.

FWIW, the women appear spookier than the South Africans; after all, demining is more danger-work than analysis (indeed, it could be State or DOD funded), and State’s silence about what the women do is suggestive by itself. (Darrell Issa listed the South African’s kidnapping in his first letter to Hillary Clinton on Benghazi but not the women’s questioning, though that list was only intended to go back six months).

Both incidents appear to have been designed to let American-tied personnel know that militias were aware of their presence and movements. That attention may have had to do with the South Africans’ unspecified race (particularly if they are white) and the women’s gender and late night travels. And the militia members may have had no clue of any tie with CIA, assuming one exists. Furthermore, even if they were tracking these individuals, there’s no guarantee the militias knew where the Annex was (though it would presumably make it easy to find out).

But these incidents read to me like deliberate attempts to let Americans know they were being surveilled. Add in the repeated assertions on the part of Libyans who helped protect Americans the night of the attack that the Annex attack included pre-stationed weapons, and it seems like at least some of the militia were tracking CIA’s activities for months leading up to the attack.

Jonah Goldberg Complains That Media Treats Boys Who Cry Wolf Like Boys Who Cry Wolf

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Welcome to November. As DDay joked on Twitter last night, we’ve officially moved out of October Surprise month.

I guess Jonah Goldberg was thinking of the same timing when he wrote a column–posted at midnight on October 31–complaining that the press had not taken the Benghazi attack more seriously.

If you want to understand why conservatives have lost faith in the so-called mainstream media, you need to ponder the question: Where is the Benghazi feeding frenzy?

[snip]

Last week, Fox News correspondent Jennifer Griffin reported that sources on the ground in Libya say they pleaded for support during the attack on the Benghazi consulate that led to the deaths of four Americans, including U.S. ambassador Christopher Stevens. They were allegedly told twice to “stand down.” Worse, there are suggestions that there were significant military resources available to counterattack, but requests for help were denied.

If this is true, the White House’s concerted effort to blame the attack on a video crumbles, as do several other fraudulent claims. Yet, last Friday, the president boasted that “the minute I found out what was happening” in Benghazi, he ordered that everything possible be done to protect our personnel. That is either untrue, or he’s being disobeyed on grave matters.

This isn’t an “October surprise” foisted on the media by opposition research; it’s news.

There are just a couple problems with Jonah’s complaint, though. There’s his suggestion that reporting on Richard Mourdock’s belief that women should bear the children of their rapists is “ridiculous.” There’s his silence about the real October Surprises of history, the unpatriotic ones crafted by Republicans: Nixon’s negotiation with the Vietnamese and reported efforts to hold the Iranian hostages to hurt Jimmy Carter (and Jonah dismisses the seriousness of the Swift Boat attack on John Kerry).

But mostly there’s the evidence that the attacks on Obama’s response to Benghazi were explicitly intended to serve as an October Surprise. In fact, according to Craig Unger’s unrebutted report dating to the first day of October, Republicans explicitly called this line of attack an October Surprise.

According to a highly reliable source, as Mitt Romney and President Barack Obama prepare for the first presidential debate Wednesday night, top Republican operatives are primed to unleash a new two-pronged offensive that will attack Obama as weak on national security, and will be based, in part, on new intelligence information regarding the attacks in Libya that killed U.S. ambassador Chris Stevens on September 11.

The source, who has first-hand knowledge of private, high-level conversations in the Romney camp that took place in Washington, DC last week, said that at various times the GOP strategists referred to their new operation as the Jimmy Carter Strategy or the October Surprise.

He added that they planned to release what they hoped would be “a bombshell” that would make Libya and Obama’s foreign policy a major issue in the campaign. “My understanding is that they have come up with evidence that the Obama administration had positive intelligence that there was going to be a terrorist attack on the intelligence.”

The day after Unger’s report, Darrell Issa–not, as would be entirely appropriate, Mike Rogers–started a loud and clumsy attack that, while it correctly exposed State’s misjudgment about security for the mission in Benghazi, completed ignored underlying (and equally serious) problems with the CIA’s response. Republicans repeatedly leaked documents claiming they said one thing when in fact they said something completely different (though what they said was still serious).

In other words, a Republican source said Republicans were planning an October Surprise, and Republicans spent the entire month of October very obviously acting to turn Benghazi into one, all the while ignoring the really serious issues raised by Benghazi that should be discussed.

I think Jonah’s most pissed about this, a story about a classified August 16 cable reporting on an emergency meeting about threats to the Benghazi mission, predicting that the mission could not withstand a coordinated attack. The story reads very much like it is the intended bombshell Unger’s source reported, the warning Obama didn’t heed, held on ice for the entire month of October like a precious prize.

The story is news. And we will return to it, presumably, next Wednesday and in the weeks thereafter, as the serious people begin to take over this investigation from buffoons like Issa and Romney surrogate Jason Chaffetz.

But for some reason it happened to get leaked the weekend before the election. In most years, such a remarkably timed release would fit right into October Surprise campaign, dominating the weekend shows just before the election (the GOP apparently haven’t updated their October Surprise plans since early voting became so important).

Except Mother Nature had an October Surprise of her own. And unless stories start breaking about seniors stuck in powerless skyscrapers with no food, water, or means to get to street level to get those things (I think this is still a distinct possibility), the pre-election weekend will be dominated by pictures of President Obama looking very presidential in a crisis and pictures of Mitt looking increasingly desperate and weak.

The Republicans, it seems, had their October Surprise preempted by a real October Surprise.

That’s the thing about surprises, I guess. Sometimes they actually are surprises and not well-managed opposition campaigns.

Darrell Issa Exposes the CIA as a Foreign Policy Debate Stunt

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Darrell Issa just released a bunch of documents so as to seed the Sunday shows in time for Monday’s foreign policy debate. [Update: See Josh Rogin’s reported description of some of the sensitivities Issa exposed.]

Here’s a running explication of what he released, all in the name of “national security.”

PDF 1: In December, Jeffrey Feltman asked Patrick Kennedy to approve “a combined footprint of 35 U.S. government personnel in Benghazi.” That would include 10 people identified as State: 8 State Department and USAID, and 2 temporary duty personnel.

Which leaves 25 people unaccounted for.

As it happens, the Libyans say there were 29 people they hadn’t expected when they came to evacuate the Americans. They complained afterwards that the Americans hadn’t told them about all the spooks they’d have onsite.

Well, now, Issa just confirmed they were not State or even USAID personnel. He has confirmed the Libyans’ claims–that they were spooks.

And then there’s this:

Because of budget considerations and the reduced footprint, Diplomatic Security’s current presence consists of two Special Agents…

As far back as December 2011, budget considerations were driving the small security footprint in Benghazi.

The budget considerations put into place by the GOP cuts to State’s budget.

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Even Dana Milbank Wonders Why Darrell Issa Is Doing Mike Rogers’ Job

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After it became clear that the Republicans hoped to use the Benghazi attack to turn Obama into Jimmy Carter, I predicted what would happen as Darrell Issa and Romney surrogate Jason Chaffetz investigated: there would be trouble with classified information.

And while in yesterday’s hearing they made State look like it was withholding information when Under Secretary Patrick Kennedy told Issa that a binder State had provided (presumably put together by the Accountability Review Board) was classified in its totality, even while individual documents in it were unclassified, Issa proceeded to enter a slew of unclassified documents from it into the record.

But it was Chaffetz who complained most loudly, after Deputy Assistant Secretary of State Charlene Lamb put up a satellite image that showed both Benghazi locations (see after 55:00), and, later, after she implied there were other security resources on the ground that were not being discussed in the hearing. (Note, I’m not sure, but I think there may actually be a spook who died at the safe house, too, which would be consistent with this article’s mention of five total dead.) Chaffetz interrupted and complained that the hearing–his own hearing–was exposing sources and methods.

As Dana Milbank describes it:

Rep. Jason Chaffetz (R-Utah) was the first to unmask the spooks. “Point of order! Point of order!” he called out as a State Department security official, seated in front of an aerial photo of the U.S. facilities in Benghazi, described the chaotic night of the attack. “We’re getting into classified issues that deal with sources and methods that would be totally inappropriate in an open forum such as this.”

A State Department official assured him that the material was “entirely unclassified” and that the photo was from a commercial satellite. “I totally object to the use of that photo,” Chaffetz continued. He went on to say that “I was told specifically while I was in Libya I could not and should not ever talk about what you’re showing here today.”

The satellite image was commercial, available to al Qaeda as readily as State. The other security resources belonged to the CIA “safe house” that had been compromised before the attack, which is one thing that led to the deaths of the two former SEALs; Chaffetz was trying to keep hidden a safe house that had already been compromised by poor spycraft or espionage. In addition, Lamb and Kennedy implied that a video showing the attack was being withheld by CIA.

Understand what this means. This hearing focused on the complaints of two security whistleblowers, complaining, credibly, about State trying to shift security responsibilities to State resources, which in this case meant relying on Libyan militia (though the February 17 Brigade appears to have acquitted itself credibly). But that part–the part Romney’s surrogate is trying to make a campaign issue–is only a part of what what went wrong on September 11. Yet Chaffetz went out his way to shield the other failures–the ones made by CIA, which traditionally has close ties to the linguistically skilled Mormon Church.

Though Issa (who kept getting whispers from a guy who apparently used to be a staffer on the House Intelligence Committee) did reveal this bit.

In this hearing room we’re not going to point out details of what may still in fact be a facility of the United States government or more facilities.

FWIW, I’ve implicitly suggested that when DOD used 3 C-130s to ferry a single FBI team to Benghazi to investigate, there may have been a lot more on those planes, some of which presumably didn’t leave with the FBI team.

In any case, this hullabaloo demonstrates what I said weeks ago: if Republicans wanted to conduct their own investigation of this attack (and there’s no reason why they shouldn’t do so), they should have done it in the House Intelligence Committee. Here’s Milbank again.

The Republican lawmakers, in their outbursts, alternated between scolding the State Department officials for hiding behind classified material and blaming them for disclosing information that should have been classified. But the lawmakers created the situation by ordering a public hearing on a matter that belonged behind closed doors.

Republicans were aiming to embarrass the Obama administration over State Department security lapses. But they inadvertently caused a different picture to emerge than the one that has been publicly known: that the victims may have been let down not by the State Department but by the CIA. If the CIA was playing such a major role in these events, which was the unmistakable impression left by Wednesday’s hearing, having a televised probe of the matter was absurd. [my emphasis]

But apparently, Rogers–who as Chair of the Intelligence Committee is of course too close to the intelligence agencies–doesn’t want to get to the bottom of this. And neither, apparently, do Issa and Chaffetz, who are conducting an investigation that by its nature will be incomplete.

There’s one more irony in all this. This very hearing room is the one where, five years ago, Republicans–including Issa–defended the right of the Executive Branch to insta-declassify things like a CIA officer’s identity for political gain. This time around, Republicans went out of their way to hide unclassified information that might reveal how the CIA fucked up.

This country’s treatment of classified information–which feeds partisan selective declassification about as often as it keeps us safer–really makes us fundamentally dysfunctional as a democracy.

Update: Cryptome has the super secret publicly available images here.

Why Can’t Darrell Issa Read the Wall Street Journal?

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In addition to the rather amusing fact that Darrell Issa is conducting an investigation that Mike Rogers should be conducting, there’s another oddity about his “investigation.” The answers to the questions he asks Hillary Clinton have been available for over 10 days in this WSJ front page article.

In his letter, Issa asks,

  1. Was State Department headquarters in Washington aware of all the above incidents? If not, why not?
  2. If so, what measures did the State Department take to match the level of security provided to the U.S. Mission in Libya to the level of threat?
  3. Please detail any requests made by Embassy Tripoli to State Department headquarters for additional security, whether in general or in light of specific attacks mentioned above. How did the Department respond to each of these requests.

In the September 21 article, the WSJ listed several of the attacks in Issa’s letter (as well as an April 10 attack on the UN’s envoy). More importantly, it provided anonymous explanations from senior State Department officials describing their thinking about security in Benghazi.

The State Department chose to maintain only limited security in Benghazi, Libya, despite months of sporadic attacks there on U.S. and other Western missions. And while the U.S. said it would ask Libya to boost security there, it did so just once, for a one-week period in June, according to Libyan officials.

[snip]

State Department officials said security for the consulate was frequently reviewed and was deemed sufficient to counter what U.S. officials considered to be the most likely threat at the time: a limited hit-and-run attack with rocket-propelled grenades or improvised explosive devices, or IEDs.

There was a string of attacks in Benghazi in the months before Sept. 11, including a June 6 IED explosion outside the consulate compound. “These types of incidents were the ones that were our principal concerns,” a senior State Department official said. Based on the outcome of the June 6 attack, in which a perimeter wall was damaged but no Americans hurt, a second State Department official added: “Our security plan worked.”

[snip]

[After the Brits pulled out of their consulate in Benghazi] The U.S. deemed the security level sufficient and decided to stay, “given the very important mission that we have in eastern Libya to support U.S. national security interests,” said a senior State Department official. He said “robust” security improvements had been made to the compound since the Americans moved into it in May 2011, including cement barriers and barbed wire.

More importantly, the article describes who made the decision to opt for a light security approach over something more aggressive: Ambassador Stevens.

Current and former officials said the security choices in Benghazi reflected efforts by Mr. Stevens to maintain a low-profile security posture and show faith in Libya’s new leaders, despite questions about their ability to rein in heavily armed bands of militants. Read more →