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NSA’s Dissenters

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I tweeted a bunch of details from this James Risen interview with Edward Snowden. That comparing the NSA to China’s People’s Liberation Army is not perceived as funny by NSA brass. How Snowden’s professed commitment to whistleblowing came from reading the 2009 Draft NSA IG Report ought to disqualify Michael Hayden — whose criminal actions the report details — from commenting on Snowden from here on out. And that ignoring the security vulnerabilities in a CIA personnel database seems kind of stupid.

But I found this paragraph most interesting.

Mr. Snowden added that inside the spy agency “there’s a lot of dissent — palpable with some, even.” But he said that people were kept in line through “fear and a false image of patriotism,” which he described as “obedience to authority.”

Two times since the Snowden leaks started, NSA has done touchy feely things to reassure employees. First, Keith Alexander’s call that “there is no substitute for victory,” even while suggesting NSA employees should leave the debate about their work to others. And then the group hug to them and their families.

I believe those are the comments of a General who is genuinely worried that learning what the NSA has been doing — aside from targeting terrorists — might lead to more dissent among NSA employees.

If Snowden’s comment is true, that all makes sense.

As I have said, many NSA employees might have an image of the NSA as a foreign codebreaker organization that would never target Americans. If they do, they may well be in for a rude awakening.

Fourth Circuit Guts National Security Investigative Journalism Everywhere It Matters

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The Fourth Circuit — which covers CIA, JSOC, and NSA’s territory — just ruled that journalists who are witnesses to alleged crimes (or participants, the opinion ominously notes) must testify in the trial.

There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.

With this language, the Fourth applies the ruling in Branzburg — which, after all, pertained to the observation of a drug-related crime — to a news-gathering activity, the receipt of classified information for all the states in which it most matters.

The opinion goes on to echo DOJ’s claims (which I recalled just yesterday) that Risen’s testimony is specifically necessary.

Indeed, he can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury –- the illegal disclosure of classified, national security information by one who was entrusted by our government to protect national security, but who is charged with having endangered it instead.

[snip]

There is no dispute that the information sought from Risen is relevant. Moreover, it “can[not] be obtained by alternative means.” Id. at 1139. The circumstantial evidence that the government has been able to glean from incomplete and inconclusive documents, and from the hearsay statements of witnesses with no personal or first-hand knowledge of the critical aspects of the charged crimes, does not serve as a fair or reasonable substitute.

[snip]

Risen is the only eyewitness to the crime. He is inextricably involved in it. Without him, the alleged crime would not have occurred, since he was the recipient of illegally-disclosed, classified information. And it was through the publication of his book, State of War, that the classified information made its way into the public domain. He is the only witness who can specify the classified information that he received, and the source or sources from whom he received it.

[snip]

Clearly, Risen’s direct, first-hand account of the criminal conduct indicted by the grand jury cannot be obtained by alternative means, as Risen is without dispute the only witness who can offer this critical testimony.

This language will enhance the strength of the reservation DOJ made to its News Media Policies, allowing it to require testimony if it is essential to successful prosecution.

The only limit on the government’s authority to compel testimony under this opinion is if the government is harassing the journalist, which (with proof of the way the government collected phone records, which remains secret) might have been proven in this case. There is a strong case to be made that the entire point of this trial is to put James Risen, not Jeffrey Sterling, in jail. But Leonie Brinkema has already ruled against it. I think the subpoena for 20 AP phone lines might rise to that level as well, except that case is being investigated in the DC Circuit, where this ruling doesn’t apply.

This pretty much guts national security journalism in the states in which it matters.

Golly. It was just last week when the press believed DOJ’s News Media Guidelines would protect the press’ work.

DOJ’s News Media Policies Reserved the Authority to Force James Risen to Testify

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James Risen’s lawyer, Joel Kurtzberg, argues that the News Media Policies released by DOJ last week mean his client should not have to testify in the Jeffrey Sterling case. (As I understand it, Michael Isikoff made a similar argument while moderating a panel including Eastern District of VA US Attorney Neil MacBride today too, though MacBride reportedly dodged any answer.) In a letter to the Fourth Circuit (which has been sitting on this decision for well over a year), he cites two paragraphs from the Policies — one affirming DOJ’s promise to access “member of the news media” materials only as a last resort, and another one calling for the “appropriate balance” between two competing interests of “protecting the American people” and “free press” — and then claims,

the standard that the DOJ now articulates in the report is the very same standard that the government argues should not be applied to Mr. Risen by the court in this case. The DOJ’s recent change in position is nothing less than an admission that the legal standard it asks this court to apply provides wholly inadequate protection for the interests at stake in this case.

Unfortunately, I think Kurtzberg misreads the way DOJ has specifically left Risen unprotected.

The first paragraph Kurtzberg cites ends,

The Department’s policy is to utilize such tools only as a last resort after all reasonable alternative investigative steps have been taken, and when the information sought is essential to a successful investigation or prosecution.

DOJ’s rules used to be interpreted to say sources would have to testify only if their testimony (or records) was necessary to identify their source or the content of the leak. This is the standard Leonie Brinkema used when she ruled Risen didn’t have to testimony because the government had already identified his source.

But with the language reserving the right to access journalist records or testimony if it is “essential to a successful prosecution,” DOJ has specifically reserved the right to do what they are doing in the Sterling case.

Indeed, their appeal of Brinkema’s decision argues that Risen must testify because it is crucial to the prosecution.

Risen is the only eyewitness to the crime and, as the recipient of the classified information at issue, he is inextricably linked to the criminal conduct. Risen’s testimony is the only direct evidence of Sterling’s guilt; no circumstantial evidence, or combination thereof, is as probative as Risen’s testimony or as certain to foreclose the possibility of reasonable doubt The information Risen can provide is therefore relevant and unavailable from other sources, and the government has demonstrated a compelling need for Risen’s testimony.

That is, even though DOJ has a slew of other evidence they say will prove Jeffrey Sterling was Risen’s source about a botched effort to deal Iran bad nuclear blueprints, they maintain Risen’s testimony is still irreplaceable for the trial.

They argue his testimony is “essential to a successful prosecution,” precisely one of the reservations DOJ included in their policies.

I’m not saying this is what the policy should be or that Risen’s testimony really is essential. I am saying DOJ seems to have included language that, according to them, at least, excludes Risen from protection.

I also am saying that journalists who celebrated these policies for their improvements in some areas have overestimated the degree to which DOJ really wants to change its approach to journalists involved in leak investigations.

Michael Hayden, Troll Extraordinaire

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“Intelligence agencies often act on the edges of executive prerogative and move forward based on a narrow base of lawfulness and limited congressional notification,” says Michael Hayden, the guy who oversaw Bush’s illegal wiretap for 2.5 years before the full Gang of Eight first got adequately briefed, and who never briefed Congress on CIA’s assassination program.

In the same piece, Hayden hails media editors who ceded to his requests to hold or adjust a story.

So, how do we limit the damage? Well, journalists will have to expand the kind of sensitivities to the national welfare that some already show. In those calls I made to slow, scotch or amend a pending story, most on the other end of the line were open to reasonable arguments. In one case a writer willingly changed a reference that had read “based on intercepts” to “based on intelligence reports,” somewhat amazed that that change made much of a difference. (It did.)

But then insists the UndieBomb 2.0 story — for which AP editors had made precisely those kinds of concessions — was right to be investigated because John Brennan’s push back to it exposed a mole.

The two prominent cases being debated were indeed serious leaks, because they touched upon sources, not just information.

In the case of the Associated Press report on a Yemen-based bomb plot, the source had apparently penetrated an al Qaeda network and there were hopes that he could continue to be exploited.

[snip]

And, since the Yemen source appears to have actually been recruited by a liaison partner, the impact of a leak goes far beyond our own service. In that same talk with bureau chiefs, I pointed out that several years before 9/11, one chief of station reported that a press leak of liaison intelligence had “put us out of the (Osama) bin Laden reporting business”.

In both stories, investigations were in order. Journalists, of all people, should understand the need to protect sources and relationships.

As the LAT story Hayden links to says clearly, “The AP did not mention the informant in its report.” And, as I laid out some weeks back, to believe our mole was going to return, the former head of the CIA would have to believe that AQAP shows great tolerance for recruits who fuck up and then return right after high ranking operatives get drone killed.

Because to maintain that claim, you’d have to explain how an AQAP operative who had been entrusted with the latest version of Ibrahim al-Asiri’s UndieBomb sometime in early April, had left (at least as far as Sanaa), had not apparently succeeded in his mission (which was, after all, meant to be a suicide bombing), could return to AQAP without the UndieBomb and infiltrate even further than he had the first time.

“Oh, hi, AQAP gatekeeper” — their story must imagine the mole saying as he returned to AQAP — “I’ve both failed in my mission and somehow lost the bomb you gave me, but based on that would you be willing to let me spend some quality time with even higher-ranking AQAP operatives?”

In short, Hayden appears to have decided it’d be a good idea to ignore the facts, good sense, and his own history so as to suggest that the Obama Administration is worse than the reasonable old Bush Administration.

But the investigations have been very aggressive and the acquisition of journalists’ communications records has been broad, invasive, secret and—one suspects—unnecessary.

A quick survey of former Bush administration colleagues confirmed my belief that a proposal to sweep up a trove of AP phone records or James Rosen’s e-mails would have had a half-life of about 30 seconds in that administration.

Just ignore the fact that the government was asking people questions about James Risen‘s phone contacts — indicating they had probably doing just what the Obama Administration did to the AP reporters, only without telling him — before Obama took over.

But here’s my favorite part:

The government may also want to adjust its approach to enforcement. The current tsunami of leak prosecutions is based largely on the Espionage Act, a blunt World War I statute designed to punish aiding the enemy. It’s sometimes a tough fit. The leak case against former National Security Agency employee Thomas Drake collapsed of its own overreach in 2011.

Perhaps in many of these cases the best approach is not through the courts or the Department of Justice.

Remember, Drake was investigated for telling a journalist about Hayden’s own boondoggle that cost many times what NSA’s existing better solution cost. There is virtually no way the investigation against him didn’t rely, in part, on Hayden’s own testimony.

And now, 6 years after the investigation into Drake started in earnest, Hayden suggests Drake shouldn’t have been criminally investigated at all.

Hayden can afford that very belated generosity, of course. He’s been profiting off the same kind of boondoggles Drake tried to expose for years now.

I mean, sure, the main jist of what Hayden says is true: the Administration is pursuing leaks far too aggressively. But coming from a guy who has long benefitted from the Executive Branch asymmetric abuse of secrecy, he’s not exactly the right person to be making the point.

First They Came for James Risen …

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

 

The AP Grab: NSL versus Subpoena

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Update: In his letter responding to AP’s complaints, Deputy Attorney General James Cole says these were subpoenas. Cole tries to argue the scope of the subpoena was fair. But what he doesn’t explain is why the government didn’t give the AP notice or an opportunity to turn over the contacts voluntarily.

I want to return to a question I introduced in my post describing DOJ’s grab of call records from 20 AP phone lines.

The assumption has been that DOJ subpoenaed these call records. While that’s probably right, I still think it’s possible DOJ got them via National Security Letter, which DOJ has permitted using to get journalist contacts in national security investigations since fall 2011. I’ll grant that AP President Gary Pruitt mentions subpoenas twice in his letter, once specifically in connection with DOJ’s grab and once more generally.

That the Department undertook this unprecedented step without providing any notice to the AP, and without taking any steps to narrow the scope of its subpoenas to matters actually relevant to an ongoing investigation, is particularly troubling.

The sheer volume of records obtained, most of which can have no plausible connection to any ongoing investigation, indicates, at a minimum, that this effort did not comply with 28 C.F.R. §50.10 and should therefore never have been undertaken in the first place. The regulations require that, in all cases and without exception, a subpoena for a reporter’s telephone toll records must be “as narrowly drawn as possible.’’ This plainly did not happen. [my emphasis]

But the entire point of Pruitt’s letter is to call attention to the way in which DOJ did not honor the spirit of its media guidelines, which are tied to subpoenas, not NSLs. That’s what the Domestic Investigations and Operations Guide says explicitly (PDF 166) when it talks about using NSLs with journalists: when using NSLs, the rules don’t apply.

Department of Justice policy with regard to the issuances of subpoenas for telephone toll records of members of the news media is found at 28 C.F.R. § 50.10. The regulation concerns only grand jury subpoenas, not National Security Letters (NSLs) or administrative subpoenas. (The regulation requires Attorney General approval prior to the issuance of a grand jury subpoena for telephone toll records of a member of the news media, and when such a subpoena is issued, notice must be given to the news media either before or soon after such records are obtained.) The following approval requirements and specific procedures apply for the issuance of an NSL for telephone toll records of members of the news media or news organizations. [my emphasis]

For a variety of reasons, I think it possible the AP doesn’t actually know how DOJ got its reporters’ contact information. And thus far, the most compelling argument (one Julian Sanchez made) that DOJ used a subpoena is that they did ultimately disclose the grab to the AP; with NSLs they wouldn’t have to do that, at least certainly not in the same time frame.

But Pruitt’s emphasis is sort of why I’m interested in this question: either DOJ used a subpoena and in so doing implicitly claims several things about its investigation, or DOJ used an NSL as a way to bypass all those requirements (and use this as a public test case of broad new self-claimed authorities). Both could accomplish the same objective — getting call records with a gag order — but each would indicate something different about how they’re approaching this investigation.

Here are DOJ’s own regulations about when and how they can subpoena a journalist or his call records. Some pertinent parts are:

(b) All reasonable attempts should be made to obtain information from alternative sources before considering issuing a subpoena to a member of the news media, and similarly all reasonable alternative investigative steps should be taken before considering issuing a subpoena for telephone toll records of any member of the news media.

(d) Negotiations with the affected member of the news media shall be pursued in all cases in which a subpoena for the telephone toll records of any member of the news media is contemplated where the responsible Assistant Attorney General determines that such negotiations would not pose a substantial threat to the integrity of the investigation in connection with which the records are sought. Such determination shall be reviewed by the Attorney General when considering a subpoena authorized under paragraph (e) of this section.

(g)(1) There should be reasonable ground to believe that a crime has been committed and that the information sought is essential to the successful investigation of that crime. The subpoena should be as narrowly drawn as possible; it should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period.

(g)(3) When the telephone toll records of a member of the news media have been subpoenaed without the notice provided for in paragraph (e)(2) of this section, notification of the subpoena shall be given the member of the news media as soon thereafter as it is determined that such notification will no longer pose a clear and substantial threat to the integrity of the investigation. In any event, such notification shall occur within 45 days of any return made pursuant to the subpoena, except that the responsible Assistant Attorney General may authorize delay of notification for no more than an additional 45 days. [my emphasis]

US Attorney Ronald Machen statement about the grab largely echoes those parts of the regulations (though somehow he forgot to mention that “subpoenas should be as narrowly drawn as possible”).

We take seriously our obligations to follow all applicable laws, federal regulations, and Department of Justice policies when issuing subpoenas for phone records of media organizations. Those regulations require us to make every reasonable effort to obtain information through alternative means before even considering a subpoena for the phone records of a member of the media. We must notify the media organization unless doing so would pose a substantial threat to the integrity of the investigation. Because we value the freedom of the press, we are always careful and deliberative in seeking to strike the right balance between the public interest in the free flow of information and the public interest in the fair and effective administration of our criminal laws.

So either DOJ used an NSL, which would give them a longer gag, fewer express limits on the scope of the request, and zero expectation of giving notice beforehand (in addition, obtaining NSLs from journalists in national security cases doesn’t appear to require Attorney General sign-off). In which case Machen is playing the same kind of word games the DIOG plays, acknowledging there are regulations the spirit of which DOJ appears to have violated.

Or Machen maintains the following about the grab:

  • DOJ has already checked the US person call records of the people known to be read into the UndieBomb plot and not found any obviously calls or emails implicating the journalists involved in the story and either hasn’t been able to access or hasn’t found any obvious clues in the potential Saudi, Yemeni, and British people read into the operation (note, some Saudis were on the record on this within days and Yemenis also appear to have leaked it).
  • Notifying the AP that DOJ was going to go get journalist contact information for two months, in an investigation that has been widely publicized for an entire year, would pose some threat to the investigation. Normally, such a claim is usually based on the premise that revealing the investigation at all would alert the targets who would otherwise not know about it, but that’s obviously not what’s going on here, because this has been one of the most public leak investigations in recent years.

Read more →

The Traditional Press’ Blind Spot in Aiding the Enemy

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This post by Kevin Gosztola lays out many of the implications of the news — revealed in Bradley Manning’s statement to the court yesterday — that he tried to publish the Iraq and Afghan cables with WaPo, NYT, and Politico before he turned to WikiLeaks. He describes, as Michael Calderone has laid out at length, how NYT and WaPo claim to have no memory of Manning’s pitch.

He wonders what the NYT and WaPo would have done had they actually gotten exclusive dibs on Manning’s trove of information.

Had the Times or Post obtained the logs and begun to examine them for publication, what would the organizations have done? Would they have published? Would they have notified the government they now possessed the documents? The Timescommunicated with the government when preparing to publish State Department cables:

Because of the range of the material and the very nature of diplomacy, the embassy cables were bound to be more explosive than the War Logs. Dean Baquet, our Washington bureau chief, gave the White House an early warning on Nov. 19. The following Tuesday, two days before Thanksgiving, Baquet and two colleagues were invited to a windowless room at the State Department, where they encountered an unsmiling crowd. Representatives from the White House, the State Department, the Office of the Director of National Intelligence, the C.I.A., the Defense Intelligence Agency, the FBI and the Pentagon gathered around a conference table. Others, who never identified themselves, lined the walls. A solitary note-taker tapped away on a computer.

What would have happened to Manning? Would they have been able to protect the identity of the lower-level soldier who had passed on information because he believed they were “some of the most significant documents of our time, removing the fog of war and revealing the true nature of 21st Century asymmetric warfare.”

The example of Jeffrey Sterling, where NYT’s apparent consultation with the government on whether to publish Risen’s story about Merlin appears to have launched the investigation into Sterling, heightens this concern.

And I would also ask whether the papers would sit on the information, using it as their exclusive data, rather than releasing it to be crowd sourced and accessed by people with more expertise on particular areas. A WikiLeaks trove would have made (and to some extent has in any case) the NYT brand for some time. Would the paper have put more stock in that than in sharing the information.

After raising questions about whether NYT would expose its source in such a case, Gosztola concludes, shows the value of organizations like WikiLeaks.

This is why leaks organizations like WikiLeaks are needed. Not only do they have the power to reveal what governments are doing in secret, they also are uniquely positioned—if constructed appropriately—to protect the identity of sources in a such way that makes it near impossible for governments to pursue those blowing the whistle. It creates the possibility that employees in militaries or national security agencies can reveal what they are seeing, be conscientious citizens and at the same time keep their job and, perhaps, not risk their livelihood.

I’d add two points to that.

NYT’s normally excellent ombud, Margaret Sullivan, suggested that the paper could continue the “time-tested way” of sourcing leaks directly to reporters. Dan Froomkin argues this news proves the need for a whistleblower drop box.

Both are ignoring a very dangerous new reality of the war on leakers. Read more →

BREAKING! EXCLUSIVE! NYT’s Ambiguous Reporting Leads to Logical Conclusions

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I guess John Brennan has figured out that the effort to roll out the Steely Decider campaign has backfired.

How else to explain the almost unheard of tactic from the NYT of accusing those who drew very logical conclusions from its own article of engaging in gossip?

For example, the NYT complains that people read these passages:

This was the enemy, served up in the latest chart from the intelligence agencies: 15 Qaeda suspects in Yemen with Western ties. The mug shots and brief biographies resembled a high school yearbook layout. Several were Americans. Two were teenagers, including a girl who looked even younger than her 17 years.

[snip]

“How old are these people?” he asked, according to two officials present. “If they are starting to use children,” he said of Al Qaeda, “we are moving into a whole different phase.”

It was not a theoretical question: Mr. Obama has placed himself at the helm of a top secret “nominations” process to designate terrorists for kill or capture, of which the capture part has become largely theoretical. He had vowed to align the fight against Al Qaeda with American values; the chart, introducing people whose deaths he might soon be asked to order, underscored just what a moral and legal conundrum this could be.

And concluded that, “President Obama really add[ed] a 17-year-old girl to the counterterrorism “kill list.”

The NYT complains that people read this passage:

David Axelrod, the president’s closest political adviser, began showing up at the “Terror Tuesday” meetings, his unspeaking presence a visible reminder of what everyone understood: a successful attack would overwhelm the president’s other aspirations and achievements.

And concluded that “his political adviser, David Axelrod, really participate[d] in discussions of which terrorist suspects should be targeted in drone strikes.”

In its effort to suggest readers have drawn unfair conclusions from what I assume was NYT’s deliberately vague reporting, it clings to that very ambiguity (ambiguity, I’ll add, which made the article far more dramatic and therefore more widely read).

The article said that Mr. Obama knew he might be asked to add such terrorism suspects to the kill list — but it did not say he had been asked to do it in this case. Nor did it say that he had done so.

Ah, but the article also didn’t say he hadn’t done so, either, did it? So whose fault is it that readers drew precisely the conclusions that the narrative and emphasis of the article created?

The NYT is so intent on impugning those who drew very logical conclusions from its vague reporting that it made this laughably inaccurate claim:

On the left, too, there were thousands of posts with inaccurate claims about what The Times had reported. Many picked up what a blogger for the conspiracy-minded PrisonPlanet.com wrote on the day the article appeared: that The Times had said Mr. Obama had placed several Americans and a 17-year-old girl, all with alleged links to the branch of Al Qaeda in Yemen, on the kill list.

I’m not sure what is most offensive about this. That a newspaper complaining that readers drew inaccurate conclusions from its vague reporting made an inaccurate claim that a libertarian is a lefty? That, in an effort to impugn Alex Jones the NYT decided to label him as a lefty?

Or that neither here nor in the larger article did the NYT breathe one word of that American 16-year old who was killed in a drone strike, Abdulrahman al-Awlaki. Even if this particular 17-year old girl weren’t ever put on the kill list (though she may well have been–the NYT effectively commits a journalistic Glomar by neither confirming nor denying it here), an American teenager was, one whose death goes unmentioned.

I refrained from noting the following when I first wrote about this article, but this odd attempt to ensure the Steely Decider campaign doesn’t backfire makes it pertinent.

First, remember what Scott Shane said when he got called on letting a senior Administration official hide behind anonymity to insinuate those doing independent reporting on drone strikes were al Qaeda sympathizers?

Shane, in written responses to a number of questions that Nieman Watchdog posed to him about the two articles, said he believes this particular quote was not necessarily directed at BIJ, calling it “ambiguous, and I wish I had been able to clarify it.” He added: “Based on all my reporting over the last couple of years, I believe U.S. government officials have in mind not BIJ or other journalists as sympathizers of Al Qaeda but militants and perhaps ISI officers who supply what they consider disinformation on strikes to journalists.”

Apparently, he was helpless in the face of the ambiguity that allowed sources–probably the same one demanding he go back and counter the blowback from this article–to insinuate independent journalism amounted to helping terrorism. But now, he sees fit not to clear up his own ambiguities, but rather to attack those who drew fair conclusions from those ambiguities.

The story must always mean what is most convenient for John Brennan.

Then there’s this. The Administration is currently prosecuting John Kiriakou for leaking information about the torture program John Brennan once championed. The very core of their case–not to mention any pretense that the government didn’t use National Security Letters to get journalists’ sources to identify leads in this case–is a Scott Shane story for which, he said, he had two dozen sources. One of the very first things Kiriakou’s lawyer is going to do, I’d wager, is demand to know who the other 23 sources for the story are so he can prove that some of those people–people like Buzzy Krongard–knew that Deuce Martinez was involved in the torture and interrogation program.

Now, as a threshold matter, the fact that Shane might have been–and may well be–under DOJ surveillance for a leak investigation suggests that every source who spoke to him for the drone story would have heightened awareness of the risk of speaking out of turn. That sucks. It goes to the core of the problem of Obama’s war on leakers, not to mention their claimed authority to use NSLs to get journalist contact information in national security investigations. But because of this Administration’s decision to prosecute a guy who allegedly identified torturers, Scott Shane’s sources–at least those that say things the Administration doesn’t want out there, mind you–may be in a precarious position. Yet people spoke to Shane for this blockbuster article nevertheless.

Furthermore, Shane undoubtedly knows that the Kiriakou prosecution–particularly those 23 sources sitting between John Kiriakou and a fair trial–could get him in a bigger pickle than James Risen is currently in. This makes Shane’s awkward position even worse. DOJ may well get to decide whether to let Kiriakou go free or risk a judge allowing Kiriakou’s lawyer to demand a list of Shane’s sources from 2008.

Now, I’m not blaming Shane on this front. I’m just pointing out what kind of ancillary power the Administration gets from its leak investigations. It may well be that that’s not playing a part here at all. But I do think it worth noting that Shane–and the NYT generally–may be in a position where the same people hiding behind all this ambiguity will have some say over what kind of headaches Shane will face for once using Kiriakou as a source.

Obama DOJ Claims Journalists Are Like Drug Users

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HuffPo has a good write-up of Friday’s Fourth Circuit hearing on whether James Risen is entitled to a reporter’s privilege in the Jeff Sterling case. It describes Judge Robert Gregory challenging DOJ appellate lawyer Robert Parker’s claims that there is no privilege at all. And while Charlie Savage described the two other judges as harder to read, both stories noted Albert Diaz calling Branzburg v. Hayes–the SCOTUS precedent–“clear as mud.”

I’m particularly interested in the way Gregory pushed back against Parker. He made a distinction between the crime that reporter Paul Branzberg witnessed–the preparation and consumption of hash–for which he was called to testify to a grand jury, and what Risen allegedly witnessed.

“I don’t think there would be a balancing test because there’s no privilege in the first place,” Parker said. “The salient point is that Risen is the only eyewitness to this crime.”

Gregory told Parker that the Supreme Court’s Branzburg v. Hayes decision — which Parker cited as precedent for forcing journalists to testify when they had witnessed a crime — involved the witnessing of a different crime, “not the disclosure itself.”

Parker said what Risen did was “analogous” to a journalist receiving drugs from a confidential source, and then refusing to testify about it.

“You think so?” Gregory asked, clearly unconvinced.

“The beneficiary of the privilege is the public … the people’s right to know,” Gregory said. “We need to know what the government is doing,” he noted. “The king never wants anyone to disclose.”

The challenge is interesting as a threshold level, because the Obama Administration has built a lot of their attacks against leaks on the notion that journalists are witnesses to a crime (Patrick Fitzgerald obtained Judy Miller’s testimony on the same basis, though he did so though an application of the balancing test that Parker wants to throw out altogether).

Obama’s DOJ has gone further, though: they appear to have approved the use of National Security Letters to obtain journalists’ contacts in the most recent update of the DIOG. That would appear to allow them to learn the identity of sources journalists phone or email without any judicial review. Which in turn allows DOJ to determine a crime has been committed and based on that, eliminate journalists’ confidentiality because they were “witnesses” to what DOJ has unilaterally determined is a crime.

If Gregory rejected the government’s argument based on leaks being a different kind of crime, it would not only protect Risen’s sources for his MERLIN story, but it would mean the government would have to curtail its use of NSLs to get journalist contacts (at least in the Fourth Circuit).

But this passage is revealing for another reason. As I said above, Branzberg was subponaed because he witnessed the use of illegal drugs. But Parker, in constructing his analogy, said receiving classified information from a source is like receiving illegal drugs, not just witnessing them. Note what that misapplication of the analogy does: It is not illegal to witness the use of drugs, but it is illegal to possess illegal drugs.

In other words, though no law supports such a suggestion, DOJ is now arguing that journalists who receive classified information are themselves criminals, just like those who possess hash.

Someone’s smoking something awful at DOJ.

The Intelligence Community Has Cleaned Up Its Attribution Problem … Has the Press?

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James Risen has another article on the evolution of intelligence analysis, this time describing how screwing up the Iraq intelligence so badly now weighs on Iran analysts (for the better, IMO).

I was struck by the description of one way the intelligence community has improved its analysis.

The intelligence community also now requires that analysts be told much more about the sources of the information they receive from the United States’ human and technological spies. Analysts were left in the dark on such basic issues in the past, which helps explain why bogus information from fabricators was included in some prewar intelligence reports on Iraq. And, when they write their reports, they must include better attribution and sourcing for each major assertion.

While I’m skeptical the IC has improved sufficiently on this front (I suspect, for example, that attribution problems are one reason the IC was looking for an AQAP attack in 2009 in Yemen and not on a plane bound for Detroit), I am heartened that at least the IC is trying to give analysts more information on where information comes from and what biases might come with that information. At the very least, it should help avoid the stovepiping of information from people like Curveball.

But reading that passage got me wondering whether the press has gotten any better on this front. This article was published in the NYT, a newspaper that rather famously promised to clean up its anonymous sourcing after the Judy Miller fiasco, but which routinely fails to meet its own guidelines.

Don’t get me wrong–Risen himself meets these guidelines in the story, explaining why around 3 anonymous sources had to remain anonymous.

one former senior intelligence official, who like several others quoted in this article would speak only on the condition of anonymity about internal agency matters

He also includes on-the-record quotes from sources that appear identical to the named anonymous sources he quotes from; leaving little doubt as to who and where his story came from.

one former official who worked with the [CIA] analyst [who had a breakdown after the Iraq intelligence debacle]

Greg Thielmann, a former State Department intelligence analyst who resigned to protest what he considered the Bush administration’s politicization of the prewar Iraq intelligence

Paul Pillar, a former senior C.I.A. analyst on the Middle East

according to the former officials [who worked on the 2007 Iran NIE]

one official [who worked on the 2007 NIE] recalled

Thomas Fingar, who was chairman of the National Intelligence Council at the time of the 2007 assessment on Iran

He even describes John Bolton in such a way as to downplay Bolton’s own role in intelligence as Undersecretary of State for Arms Control and International Security, presumably making it clear (as if there were any doubt) that Bolton was not among his sources describing the problems with intelligence under Bush.

John R. Bolton, a senior fellow at the American Enterprise Institute and a former ambassador to the United Nations in the Bush administration

So this is not a commentary on Risen. Read more →