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Information Sharing with Israel Raises Questions about Efficacy of NSA’s Minimization Procedures

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The Guardian’s latest Edward Snowden story yesterday reported that an information sharing Memorandum of Understanding written sometime after March 2009 laid out the sharing of unminimized US collections with Israel. The agreement appears to newly share such unminimized content based on unenforceable assurances from Israel that it will minimize US person data and destroy any communication involving a US government official.

Whatever else this story may do, it casts serious questions on the efficacy of the minimization procedures that lie at the core of FISA Court oversight over the government’s spying program.

NSA’s minimization procedures in place (per a date stamp) on July 29, 2009 only allow the government distribution of unminimized data to foreign governments for cyrptoanalysis or translation. And it requires the foreign government to return the data once it has provided assistance.

Dissemination to foreign governments will be solely for translation or analysis of such information or communications, and assisting foreign governments will make no use of any information or communication of or concerning any person except to provide technical and linguistic assistance to NSA.

[snip]

Upon the conclusion of such technical or linguistic assistance to NSA, computer disks, tape recordings, transcripts, or other items or information disseminated to foreign governments will either be returned to NSA or be destroyed with an accounting of such destruction made to NSA.

But the information sharing agreement with Israel not only envisions it keeping this data (with the requirement that it “strictly limit access … to properly cleared ISNU personnel and properly cleared members of Israeli intelligence services”) but also circulating it, so long as it complies with an unenforceable promise to minimize US person data.

Disseminate foreign intelligence information concerning U.S. persons derived from raw SIGINT provided by NSA — to include any release outside ISNU in the form of reports, transcripts, gists, memoranda, or any other form of written oral document or transmission — on in a manner that does not identify the U.S. person.

The only data that the US requires Israel destroy is that involving US government personnel.

Destroy upon recognition any communication contained in raw SIGINT provided by NSA that is either to or from an official of the U.S. Government. “U.S. Government officials” include officials of the Executive Branch (including the White House, Cabinet Departments, and independent agencies); the U.S. House of Representatives and Senate (members and staff); and the U.S. Federal Court system (including, but not limited to the Supreme Court).

So unless the government canceled this agreement just 4 months after it reached it, it means the NSA misrepresented to the FISA Court the legal and privacy implications of the collection the court approved based on those minimization procedures. The court approved broad collections based on the understanding minimization would be strictly enforced, but here we learn it has been outsourced to a foreign government in terms that don’t seem to abide by the minimization procedures themselves.

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Prosecuting Our Own Conspiracies

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My first reaction when I heard about the case of Eric Harroun — the Army veteran arrested last week on one count of conspiring to use a WMD (in the form of a rocket propelled grenade) — was that we were going to need bigger jails, because we’ll surely be arresting all our Qatari allies who are also conspiring to arm the al-Nusrah Front with things like RPGs.

But his father’s claim he was working for the CIA (which might explain why an FBI officer assigned to the Washington Field Office would file this case in Eastern District of VA, the CIA’s home district) makes the charges all the more interesting. Certainly, the affidavit reads like someone who was trying to set up cover as a terrorist recruit. Moreover, between the multiple videos he posted and the 4 FBI interviews he had before he got a lawyer suggest he wasn’t at all worried about being charged for associating with what he said (in one of those lawyer-less interviews) he knew to be a designated terror organization.

If he had a formal role with the CIA, it also might explain how Harroun managed to reenter Turkey without his passport.

HARROUN stated that he was able to re-enter Turkey on or about February 10, 2013, without his passport.

Is also might explain who is paying for lots of international travel with no apparent means of support. And it might explain why a US Army vet needed to be trained on how to use an RPG.

So if Harroun’s father is right, and he was working for CIA, then why is he in jail?

There are two details I find particularly interesting. First, the affidavit concentrates on Harroun’s condemnation of Zionism.

On or about March 11,2013, FoxNews.com published an article based in part on an interview of HARROUN. In the article, HARROUN acknowledged that he had been fighting with Syrian rebels, including the al-Nusrah Front, but stated that he had returned to Turkey. According to the article, HARROUN’s Facebook wall included the quote: “The only good Zionist is a dead Zionist” and HARROUN stated that he intended to travel to Palestine because of Israeli atrocities there.

[snip]

During the March 12 interview, HARROUN was asked about his comment that “the only good Zionist is a dead Zionist.” HARROUN stated that he equated Zionism with Nazism and Fascism.

And it appears the March 11 Fox article may be what led the FBI in Turkey to start investigating Harroun, which was actually published a month after Harroun had returned to Turkey from Syria. The three earlier things Harroun posted about his involvement in Syria don’t seem to have alarmed the FBI. (Note: I’m not sure when it became a crime to utter anti-Zionist statements, but apparently FBI now treats it as evidence of terrorism.)

Add in the fact that he was associated with a downed helicopter.

On or about February 14, 2013, an individual with access to a Facebook account which uses HARROUN’s name and profile photograph shared a link to a video of a helicopter that appeared to have been shotdown. Based on my review of the public information associated with this account, I believe that this account is HARROUN’s Facebook account. In the post referenced above, the text accompanying the video stated “Downed a Syrian Helicopter then Looted all Intel and Weapons!” The video was publicly available on the Facebook account, and FBI obtained a copy of the video. The video shows a downed Syrian helicopter and depicts HARROUN riding in a jeep with other individuals wearing military-style clothing and in possession of weapons. HARROUN is celebrating in the video and makes statements in English in support of the downing of the helicopter.

That is, Harroun has very publicly performed Israel’s nightmare: anti-aircraft weapons on its northern border wielded by anti-Zionists threatening to head to Palestine next. By prosecuting him, are we pretending that our policy is not one that poses a risk to Israel.

Or maybe Harroun’s just in jail because the Fox article made it clear we’re actually arming the al-Nusrah Front?

Odds and Ends

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First off, let’s wish Marcy a big Happy Birthday! The woman is doing nothing but getting younger and smarter. Amazing.

Secondly, my fine Emptywheel friends, I’d like to apologize, I got a little sidetracked today with some work and duties with my daughter, Jenna. And, honestly, far more of my day was spent learning about some of the players and watching the action in Twitter Fight Club. While our own @emptywheel met her unfortunate demise in the second round (without question hampered by her lack of access to internet connection), I was somehow or another asked to judge the Elite Eight, which is taking place today. If you want to weigh in with your votes, all the Twitter Fight Club info is here. These are all excellent people participating in this game, and it is really a lot of fun. I have, just today, been exposed to several people I did not previously regularly track, even though I knew who they were.

The downside is, for all these reasons, plus now that there is once again a three hour difference between me and the east coast, I am hopelessly deep in the day without having written any substantive posts. In light of that, I will post a couple of interesting quick hits for discussion and make this an open thread for those subjects and all other things generally.

First up: A bit of a weird case was announced today in the Eastern District of Virginia (EDVA). An American citizen, Eric Harroun, was arrested for what appears to be pretty much only foreign terroristic acts:

A former Army soldier from Phoenix who joined rebels fighting the Syrian government and boasted to FoxNews.com of his exploits as a Muslim soldier of fortune earlier this month was arrested Wednesday in Virginia and could face life in prison.

Eric Harroun, 30, who left the Army in 2003 on full disability pay after a truck accident, was charged with conspiring to use a rocket-propelled grenade while fighting with the al-Nusrah Front, an organization also known as Al Qaeda in Iraq. Harroun, who was in Syria or Turkey when he spoke to FoxNews.com by Skype, was nabbed shortly after flying in to Dulles International Airport after a voluntary interview with FBI agents, according to a criminal complaint filed Thursday.

There are all kinds of fascinating about this story. For one, Harroun was just featured in a big story in Foreign Policy. The FP story was only dated March 22, so the timing of when they really interacted with Harroun (the earliest date FP noted was March 2nd and the latest March 16th) in relation to the time and circumstances of his arrest are interesting. Here is the critical affidavit filed on him in EDVA so far. And here is a piece by Bobby Chesney at Lawfare on the Harroun announcement, and I completely agree with him about the curious disconnect between the charge maybe called for under 18 USC 2339(D) and the one contained in the one page, fill in the blank complaint that was filed, of 18 USC 2332(a)(b).

Second, the Sweet Sixteen is underway. I have a rooting interest in the Arizona Wildcats, who are playing an evil Bit 10.2 team, Ohio State. Go Cats! also on tap tonight are Marquette/Miami, Syracuse/Indiana and, in a battle of surprise teams, Wichita State/La Salle. These are all fantastic games, but I think the Buckeyes, Marquette and Indiana will likely win out. The one that is a crap shoot and really fascinating is the Wichita State Shockers and the La Salle Explorers. The Shockers have big and tough inside and the Explorers have guards. I always default to killer guard play in the tournament, and I will ride with La Salle.

Okay, what else you got? Whether in the news, March Madness, or anything else, let fly.