Posts

Hiding the 215 Index from Defendants, Too

/3 Comments/in , , /by

Adam Liptak reviews one of the issues I laid out in this post and the ACLU first laid out here. The government is reneging on multiple promises made over the course of the Amnesty v. Clapper case — including to SCOTUS itself — to make sure defendants could challenge evidence collected under “the program” (then defined as Section 702 of the FISA Amendments Act).

But I’m particularly interested in Liptak’s focus on the government’s use of “derived from” here.

If the government wants to use information gathered under the surveillance program in a criminal prosecution, [Solicitor General Don Verrilli] said, the source of the information would have to be disclosed. The subjects of such surveillance, he continued, would have standing to challenge the program.

Mr. Verrilli said this pretty plainly at the argument and even more carefully in his briefs in the case.

In one brief, for example, he sought to refute the argument that a ruling in the government’s favor would immunize the surveillance program from constitutional challenges.

“That contention is misplaced,” he wrote. “Others may be able to establish standing even if respondents cannot. As respondents recognize, the government must provide advance notice of its intent to use information obtained or derived from” the surveillance authorized by the 2008 law “against a person in judicial or administrative proceedings and that person may challenge the underlying surveillance.” (Note the phrase “derived from.”)

In February, in a 5-to-4 decision that split along ideological lines, the Supreme Court accepted Mr. Verrilli’s assurances and ruled in his favor. Justice Samuel A. Alito Jr., writing for the majority in the case, Clapper v. Amnesty International, all but recited Mr. Verrilli’s representation.

“If the government intends to use or disclose information obtained or derived from” surveillance authorized by the 2008 law “in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition.” (Again, note the phrase “derived from.”)

What has happened since then in actual criminal prosecutions? The opposite of what Mr. Verrilli told the Supreme Court. [my emphasis]

It’s time to broaden the focus of this discussion, finally. It’s time to include both Section Section 215 collection (metadata) and 702 collection (content) in this discussion together.

As I have noted, the government has claimed these are “distinct issues” and that 215 metadata collection is not part of the 702 content creation.

But in an interview, Edward Snowden claims the metadata is used to identify and pull content.

In most cases, content isn’t as valuable as metadata because you can either re-fetch content based on the metadata or, if not, simply task all future communications of interest for permanent collection since the metadata tells you what out of their data stream you actually want.

And James Clapper described metadata as a kind of Dewey Decimal system that allows the government to pull selected conversations from its giant library of all conversations.

ANDREA MITCHELL: At the same time, when Americans woke up and learned because of these leaks that every single telephone call in this United States, as well as elsewhere, but every call made by these telephone companies that they collect is archived, the numbers, just the numbers, and the duration of these calls. People were astounded by that. They had no idea. They felt invaded.

JAMES CLAPPER: I understand that. But first let me say that I and everyone in the intelligence community all– who are also citizens, who also care very deeply about our– our privacy and civil liberties, I certainly do. So let me say that at the outset. I think a lot of what people are– are reading and seeing in the media is a lot of hyper– hyperbole.

A metaphor I think might be helpful for people to understand this is to think of a huge library with literally millions of volumes of books in it, an electronic library. Seventy percent of those books are on bookcases in the United States, meaning that the bulk of the of the world’s infrastructure, communications infrastructure is in the United States.

There are no limitations on the customers who can use this library. Many and millions of innocent people doing min– millions of innocent things use this library, but there are also nefarious people who use it. Terrorists, drug cartels, human traffickers, criminals also take advantage of the same technology. So the task for us in the interest of preserving security and preserving civil liberties and privacy is to be as precise as we possibly can be when we go in that library and look for the books that we need to open up and actually read.

You think of the li– and by the way, all these books are arranged randomly. They’re not arranged by subject or topic matter. And they’re constantly changing. And so when we go into this library, first we have to have a library card, the people that actually do this work.

Which connotes their training and certification and recertification. So when we pull out a book, based on its essentially is– electronic Dewey Decimal System, which is zeroes and ones, we have to be very precise about which book we’re picking out. And if it’s one that belongs to the– was put in there by an American citizen or a U.S. person.

We ha– we are under strict court supervision and have to get stricter– and have to get permission to actually– actually look at that. So the notion that we’re trolling through everyone’s emails and voyeuristically reading them, or listening to everyone’s phone calls is on its face absurd. We couldn’t do it even if we wanted to. And I assure you, we don’t want to.

ANDREA MITCHELL: Why do you need every telephone number? Why is it such a broad vacuum cleaner approach?

JAMES CLAPPER: Well, you have to start someplace. If– and over the years that this program has operated, we have refined it and tried to– to make it ever more precise and more disciplined as to which– which things we take out of the library. But you have to be in the– in the– in the chamber in order to be able to pick and choose those things that we need in the interest of protecting the country and gleaning information on terrorists who are plotting to kill Americans, to destroy our economy, and destroy our way of life.

And according to William Arkin, the 215 metadata database, called MAINWAY, is considered a “signals navigation database.”

In other words, the 215 database is at least sometimes used as a roadmap to all the other collections the NSA gathers.

As I’ll show in a follow-up post, how that roadmap is used may go to the heart of the legitimacy of investigations into American.

I’m not entirely sure what discovery obligations the government thinks it has with this tool. But given that it’s a moment where the government claims to be exercising reasonable cause analysis (in secret) it sure ought to be disclosed.

Edward Snowden Invokes Nuremberg in Defending His Actions

/16 Comments/in , , /by

Here’s his speech:

Hello. My name is Ed Snowden. A little over one month ago, I had family, a home in paradise, and I lived in great comfort. I also had the capability without any warrant to search for, seize, and read your communications. Anyone’s communications at any time. That is the power to change people’s fates.

 

It is also a serious violation of the law. The 4th and 5th Amendments to the Constitution of my country, Article 12 of the Universal Declaration of Human Rights, and numerous statutes and treaties forbid such systems of massive, pervasive surveillance. While the US Constitution marks these programs as illegal, my government argues that secret court rulings, which the world is not permitted to see, somehow legitimize an illegal affair. These rulings simply corrupt the most basic notion of justice – that it must be seen to be done. The immoral cannot be made moral through the use of secret law.

 

I believe in the principle declared at Nuremberg in 1945: “Individuals have international duties which transcend the national obligations of obedience. Therefore individual citizens have the duty to violate domestic laws to prevent crimes against peace and humanity from occurring.”

 

Accordingly, I did what I believed right and began a campaign to correct this wrongdoing. I did not seek to enrich myself. I did not seek to sell US secrets. I did not partner with any foreign government to guarantee my safety. Instead, I took what I knew to the public, so what affects all of us can be discussed by all of us in the light of day, and I asked the world for justice.

 

That moral decision to tell the public about spying that affects all of us has been costly, but it was the right thing to do and I have no regrets.

 

Since that time, the government and intelligence services of the United States of America have attempted to make an example of me, a warning to all others who might speak out as I have. I have been made stateless and hounded for my act of political expression. The United States Government has placed me on no-fly lists. It demanded Hong Kong return me outside of the framework of its laws, in direct violation of the principle of non-refoulement – the Law of Nations. It has threatened with sanctions countries who would stand up for my human rights and the UN asylum system. It has even taken the unprecedented step of ordering military allies to ground a Latin American president’s plane in search for a political refugee. These dangerous escalations represent a threat not just to the dignity of Latin America, but to the basic rights shared by every person, every nation, to live free from persecution, and to seek and enjoy asylum.

 

Yet even in the face of this historically disproportionate aggression, countries around the world have offered support and asylum. These nations, including Russia, Venezuela, Bolivia, Nicaragua, and Ecuador have my gratitude and respect for being the first to stand against human rights violations carried out by the powerful rather than the powerless. By refusing to compromise their principles in the face of intimidation, they have earned the respect of the world. It is my intention to travel to each of these countries to extend my personal thanks to their people and leaders.

 

I announce today my formal acceptance of all offers of support or asylum I have been extended and all others that may be offered in the future. With, for example, the grant of asylum provided by Venezuela’s President Maduro, my asylee status is now formal, and no state has a basis by which to limit or interfere with my right to enjoy that asylum. As we have seen, however, some governments in Western European and North American states have demonstrated a willingness to act outside the law, and this behavior persists today. This unlawful threat makes it impossible for me to travel to Latin America and enjoy the asylum granted there in accordance with our shared rights.

 

This willingness by powerful states to act extra-legally represents a threat to all of us, and must not be allowed to succeed. Accordingly, I ask for your assistance in requesting guarantees of safe passage from the relevant nations in securing my travel to Latin America, as well as requesting asylum in Russia until such time as these states accede to law and my legal travel is permitted. I will be submitting my request to Russia today, and hope it will be accepted favorably.

NSA Undermines Past Leaked Narrative about Edward Snowden with New Ones

/3 Comments/in , /by

The 21st paragraph of this 22 paragraph article on what Edward Snowden may have taken from the NSA reads.

But that also made it easier for systems administrators such as Snowden, whose job was to make sure the networks worked properly, to gain access to files.

WaPo’s sources apparently have a different understanding of what NSA/Booz paid Edward Snowden to do than the NYT, which says he was a hacker, not a systems administrator.

Yet in spite of the effort to make Snowden seem like an innocuous systems administrator, WaPo reports that based on a review of what Snowden “was able to review within the agency’s systems,” the NSA is most worried that Snowden will reveal how we hack into other countries’ networks, especially those of the Chinese.

But the release of information on how the NSA has penetrated Chinese networks would be especially damaging. “It’s not in the interests of the United States for the Chinese to know exactly how we do it,” said a former intelligence official. “It’s sources and methods.”

U.S. officials also fear that some of the documents Snowden has turned over to journalists disclose NSA methods of hacking into overseas networks, and, if published, will lead targets in other countries — in the Middle East, Europe, East Asia and South Asia — to take new defensive actions.

And the article uses that word, hack, twice to refer to our actions (and once to refer to China’s).

The article notes that Snowden has said, “he has no desire to publicize information that describes the technical specifications or blueprints for how the NSA has constructed its eavesdropping network.” So it points to the files people like the Guardian (which it also notes refuses to publish everything it has because the materials are sensitive) to create the specter of a threat this will happen. (The story doesn’t mention WikiLeaks, perhaps having learned its lesson after Walter Pincus had to make extensive corrections to a story making unsupported allegations about WikiLeaks, but I would bet that is the unspoken worry.)

In other words, the story confirms Snowden did not take any collected intelligence, and that he knows what we suspect a paid NSA hacker would know, but has not yet publicly leaked that (aside from very sketchy details to the South China Morning Post), which is what the NSA most fears he might leak. He has instead focused on the surveillance of individuals.

But in spite of the fact that that is what the article reports, that is presented as reason to be terrified by Edward Snowden.

 

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

/23 Comments/in , /by

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

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

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

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

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

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

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

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

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

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

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

So back to Michael Hayden.

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

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

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

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

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

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

US Big-Footing Extraterritoriality Again

/7 Comments/in , /by

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

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

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

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

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

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

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

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

Edward Snowden’s Extradition Request

/38 Comments/in , , /by

Screen shot 2013-07-06 at 9.31.58 AMAs I noted last night, Venezuelan President Nicolás Maduro offered Edward Snowden asylum last night. (The Spanish was “hemos decidido” and “he decidido ofrecerle asilio” which included none of the sense of hypothetical that Nicaragua’s President Daniel Ortega used.)

The government has released the extradition request they’ve sent to the Venezuelan government.

Perhaps the most interesting detail is the date: July 3. Way back when Maduro was (unless I’ve lost track of his chronology), still in Russia or Belarus, and when Bolivian President Evo Morales was making a big stink about being “kidnapped” in Vienna.

Since that time, Maduro finished his visit in Belarus. Flew (presumably with a refueling stop somewhere and possibly a stop at home) to Cochabamba, Bolivia, where at least 6 South American leaders either were personally or had sent a representative (in addition to Morales and Maduro, the Presidents of Ecuador, Suriname, Argentina, and Uruguay were present, Brazils Dilma Rousseff had sent a representative, as had, according to some reports, Peru and Chile).

Then Maduro returned home in time for Venezuela’s Independence Day celebration, where he issued his statement offering asylum.

It appears that after the US issued the extradition request to Venezuela, they issued an arrest warrant to Ireland.

Now, perhaps the US has real intelligence saying that Snowden remains in Russia. But these are the people who were sure he was on Morales’ plane just a few days ago. And they don’t really seem all too sure about where Snowden is.

Update: This is one of the few stories I’ve seen that affirmatively said Snowden was still in Russia after Maduro’s departure, based on a single Russian security source.

Update: And this has more Russian sources stating he remains stuck in Russia.

Europe again stuck saying, “They told us they were sure”

/26 Comments/in , , /by

The NATO members who refused overflight privileges for Bolivian President Evo Morales are, in the process of trying to justify what they did, revealing more details of what led them to risk such a diplomatic affront. Among other explanations, the Spanish foreign minister explained that “they” told the Spanish “they were sure” Snowden was on board Morales’ plane.

“They told us they were sure… that he was on board,” Mr Garcia-Margallo told Spanish television, without indicating who “they” are.

“And so the reaction of all the European countries that took measures – whether right or wrong – was because of the information that had been passed on. I couldn’t check if it was true or not at that moment because it was necessary to act straight away.”

In point of fact, it’s not yet clear Snowden wasn’t on the plane. While Austrian authorities checked the passports of the known passengers on the plane, they apparently did not conduct a thorough search. And 3 Spaniards who showed up to conduct a search were denied entry (though Morales did stop in the Canary Islands, which would have provided another opportunity to conduct a search on Spanish territory, but by that point Morales was already making a literal international incident about his treatment).

Then yesterday the heads of state from 5 other South American countries gathered in Cochabamba, Bolivia (why not La Paz?) to bitch about the actions of those NATO countries that had insulted Morales. If Snowden was on Morales’ plane, he may well be in any of 6 other countries by now (Brazil’s Dilma Rousseff sent an advisor — and note several attendees would have had to fly over Brazilian airspace to return home).

Or Snowden could be in Austria, which was one of the countries that had said Snowden would need to be in their country before it could consider an asylum request (there were pictures of Morales and Fischer from Morales’ layover that made them look quite jolly).

Or Snowden could still be in Sheremetyevo, though no one has ever seen him there. Russia’s Deputy Foreign Minister Sergei Ryabkov signaled impatience with Snowden today, even though in the past Putin said he would not extradite the leaker. But who knows whether the Russians, who are enjoying this game, are telling the truth?

So Snowden could foreseeably be in Argentina, Austria, Bolivia, Brazil, Ecuador, Russia, Suriname, Uruguay, or Venezuela. And there’s no reason to believe we’d know one way or another.

Meanwhile Ecuador chose yesterday, in the wake of the Morales slight, to complain about a bug placed in its Embassy in London. A bug they claim to have found last month.

Foreign Minister Ricardo Patino told a news conference in Quito the bug was found last month when Ecuadorean technicians reviewed the embassy’s wiring.

Now, Ecuador reportedly found the bug in connection with Patino’s trip to London June 16. Which ought to raise questions about why they’ve chosen this moment to make a stink about it. Did they leave it in place to sow disinformation? In any case, the bug has given Ecuador reason to raise tensions with England, which has avoided the badgering the other NATO European countries have.

So who knows where Snowden is? But in the meantime, US intelligence (presumably the “they” who were “sure” Snowden was on Morales’ plane) has been exposed in another potential false certainty, and the South American nations skeptical of the Washington consensus have reasons to make fun of Europe for playing Washington’s poodle.

This entire stink is supposed to be about America’s omnipotent SIGINT dragnet (the power of which is presumably one of the reasons the NATO members are being so compliant with US demands). But somehow that SIGINT hasn’t pinpointed Snowden yet, and may have gotten badly embarrassed by listening into one of its own bugs.

Update: Nicolas Maduro has granted Snowden asylum, as has Nicaragua’s Daniel Ortega. Which leaves the logistics of getting Snowden to Venezuela if he is not already there.

 

SWIFT: Big Brother with a Booz Assist, Only without the Paperwork

/14 Comments/in , /by

As reporting on Edward Snowden reveal the scope of our spying on European friends, I’ve been thinking a lot about SWIFT.

SWIFT, you recall, is the database tracking international online money transfers. After 9/11, the US Government started helping itself to the data to track terrorist financing. But then in 2010 the servers moved entirely to the EU, and the EU forced the US to accede to certain protections: protections for EU citizens, a prohibition on bulk collection (and with it data mining), and two-pronged audit system.

Today, the CEO of SWIFT until 2007, Leonard Schrank, and the former Homeland Security Advisor, Juan Zarate, boast about the controls on SWIFT, suggesting it provides a model for data collection with oversight.

Both the Treasury and Swift ensured that the constraints on the information retrieved and used by analysts were strictly enforced. Outside auditors hired by Swift confirmed the limited scope of use, and Swift’s own representatives (called “scrutineers”) had authority to stop access to the data at any time if there was a concern that the restrictions were being breached. These independent monitors worked on site at government agencies and had real-time access to the system. Every time an analyst queried the system, the scrutineer could immediately review the query. Each query had to have a reason attached to it that justified it as a counterterrorism matter. Over time, the scope of data requested and retained was reduced.

This confirmed that the information was being used in the way we said it was — to save lives.

[snip]

The use of the data was legal, limited, targeted, overseen and audited. The program set a gold standard for how to protect the confidential data provided to the government. Treasury legally gained access to large amounts of Swift’s financial-messaging data (which is the banking equivalent of telephone metadata) and eventually explained it to the public at home and abroad.

It could remain a model for how to limit the government’s use of mass amounts of data in a world where access to information is necessary to ensure our security while also protecting privacy and civil liberties.

This description should already raise concerns about the so-called gold standard for spying. When “scrutineers” cohabit with those they’re supposed to be scrutinizing, it tends to encourage cooperation, not scrutiny.

And somehow, Schrank and Zarate neglect to mention that the vaunted audit process they describe was conducted by none other than Booz Allen Hamilton, the contractor that hired and let Edward Snowden abscond with the spying world’s crown jewels. And, as ACLU noted in a report for the EU in 2006, even during Schrank’s tenure, Booz was neck deep in aggressive surveillance.

But the real problem with highlighting SWIFT as a poster child of massive surveillance done right post-dates Schrank’s tenure (though he must know about this), when the EU’s independent audits for the first time revealed what went on in SWIFT queries. Among other things: the actual requests were oral, and therefore couldn’t be audited.

The report revealed that the Americans have been submitting largely identical requests–but then supplementing them with oral requests.

The oral requests, of course, make it impossible to audit the requests.

At the time of the inspection, Europol had received our requests for SWIFT data. Those four requests are almost identical in nature and request–in abstract terms–broad types of data, also involving EU Member States’ data. Due to their abstract nature, proper verification of whether the requests are in line with the conditions of the Article 4(2) of the TFTP Agreement–on the basis of the available documentation–is impossible. The JSB considers it likely that the information in the requests could be more specific.

Information provided orally–to certain Europol staff by the US Treasury Department, with the stipulation that no written notes are made–has had an impact upon each of Europol’s decisions; however, the JSB does not know the content of that information. Therefore, where the requests lack the necessary written information to allow proper verification of compliance with Article 4(2) of the TFTP Agreement, it is impossible to check whether this deficiency is rectified by the orally provided information. [my emphasis]

In addition, in spite of demands that the program include no bulk downloads, that’s precisely what the US was doing.

“We have given our trust to the other EU institutions, but our trust has been betrayed”, said Sophia in’t Veld (ALDE, NL), rapporteur on the EU-US Passenger Name Record (PNR) agreements. “This should be kept in mind when they want our approval for other agreements”, she declared.

“Somehow I am not surprised”, said Simon Busuttil (EPP, MT), recalling that “at the time of the negotiations last year we were not satisfied with having Europol controlling it – we wanted additional safeguards”. He added that ”the agreement is not satisfactory”, since it involves the transfer of bulk data, and insisted that ”we need an EU TFTP”.

For Claude Moraes (S&D, UK), the US demands are “too general and too abstract”. He also recalled that MEPs had insisted at the time that it must be specified how the US request would be made and that they needed to be “narrowly tailored”. A written explanation should accompany each request, he added.

This agreement is not in line with Member States’ constitutional principles and with fundamental rights, argued Jan Philipp Albrecht (Greens/EFA, DE). He highlighted the problem of bulk data transfer, “which is exactly what we have criticised before“. [my emphasis]

In other words, once an actual independent reviewer — not an embedded contractor like Booz — reviewed the program, it became clear it was designed to be impossible to audit, even while engaging in precisely the bulk downloads the Europeans feared.

Not only is the experience of SWIFT one reason why the Europeans are so quick to object to the scale of US spying on them. But it is actually a poster child for surveillance done wrong.

Contrary to what its boosters want you to believe.

James Clapper’s Double Super Secret Correction

/11 Comments/in , , /by

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Perhaps NSA has finally decided to start telling the truth?

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

/11 Comments/in , /by

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

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

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

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

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

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

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

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

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

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

We’re simply not trustworthy on that front anymore.