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UNCAT Process Exposes Flaw in US Torture Coverup: DOJ Not Final Authority

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A combination of factors is forcing the issue of US torture back into the international spotlight and there are even hints that progress on some fronts is occurring. Consider, for instance, James Risen’s report this morning that the American Pyschological Association, greatly embarrassed by the revelations in Risen’s just-published book, has re-opened an investigation into the role the association played in giving cover to pyschologists who lent their credentials to the torture program in an effort to pronounce it medically ethical. We also have gotten the first official hint from Mark Udall himself that he has not ruled out using the Senate’s speech and debate clause to enter the Senate Intelligence Committtee’s report on torture into the record (the way that Mike Gravel disclosed the Pentagon Papers), bypassing the two year old debate about redactions.

We should pay special attention, though, to word filtering out of Geneva as the United Nations Committee Against Torture reviews the report submitted by the US. As a signatory to the Convention Against Torture, the US is required to make periodic reports to the committee. The process, however, is exceedingly slow. The current report from the US (pdf) is finally getting around to answering questions submitted to the US in 2006 and 2010. A New York Times story from Charlie Savage shows that the committee has been paying close attention both to what the US is saying and to what the US is doing. Consider this blockbuster:

Alessio Bruni of Italy, a member of the United Nations committee, pressed the delegation to explain Appendix M of the manual, which contains special procedures for separating captives in order to prevent them from communicating. The appendix says that prisoners shall receive at least four hours of sleep a day — an amount Mr. Bruni said would be sleep deprivation over prolonged periods and unrelated to preventing communication.

Brig. Gen. Richard C. Gross, the top legal adviser to the Joint Chiefs of Staff, said that reading the appendix as intended to permit sleep deprivation was a misinterpretation. Four hours is “a minimum standard; it’s not the maximum they can get,” he said, adding that the rule had to be read in the context of the rest of the manual, including a requirement for medical and legal monitoring of treatment “to ensure it is humane, legal and so forth.”

Mr. Bruni was not persuaded. He said that calling the provision a minimum standard still meant four hours a night for long periods was “permissible.” He suggested that Appendix M “be simply deleted.”

This exchange counts as a huge victory for the community of activists who have fought hard to abolish all forms of torture by the US. When it comes to the Appendix M battle, though, perhaps nobody has been more determined to expose the torture still embedded in Appendix M practices than Jeff Kaye, and he is to be congratulated for the support he provided in getting this question to the forefront.

The most important part of the proceedings, though, pertains to the questions about US investigation of torture since it now openly admits torture took place. Returning to Savage’s report:

A provision of the treaty, the Convention Against Torture, requires parties to investigate and provide accountability for past instances of torture. The American delegation said that the United States had investigated the C.I.A. program, and that the coming publication of a Senate Intelligence Committee report would add to the public record.

/snip/

The American officials pointed to a criminal investigation by John H. Durham, an assistant United States attorney in Connecticut, whom Michael B. Mukasey, then attorney general, appointed in 2008 to look at whether the C.I.A. had broken the law by destroying videotapes of its interrogations of Qaeda suspects.

In 2009, Attorney General Eric H. Holder Jr. expanded Mr. Durham’s mandate to look at C.I.A. torture that went beyond what the Justice Department had said was legal. Mr. Durham eventually closed the investigation without indicting anyone.

Another member of the United Nations panel, Jens Modvig of Denmark, pressed for details. He asked if Mr. Durham’s team had interviewed any current or former detainees.

It is clear from Modvig’s question that he feels the US investigation fell short of what is required. To get a good feel for that, we can look to this terrific “shadow report” (pdf) to the UNCAT prepared by “Advocates for US Torture Prosecutions” at Harvard Law School.

The report does an excellent job of framing the questions at hand, beginning with the observation that “The U.S. Government’s criminal program of torture was authorized at the highest levels” (fitting nicely with Marcy’s post earlier today about it being authorized by the President). But when we get to inadequacy of Durham’s investigation, we see this (footnotes removed): Read more →

What Drove Timing of NYTimes Publishing Risen-Apuzzo Disclosure of McHale Jundallah Contacts?

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Saturday night, the New York Times published a blockbuster article by James Risen and Matt Apuzzo that was then carried on the front page of Sunday’s print edition. The article described the jaw-dropping revelation that somehow, a lowly Port Authority detective wound up as the primary contact for Jundallah, a Sunni extremist group on the Iran-Pakistan border that attacks Iran (and sometimes Pakistan) with an aim to unify the region that is home to the Baloch people. Further, it appears that through Thomas McHale’s contacts (and McHale’s membership in a Joint Terrorism Task Force), information on Jundallah attacks filtered into the CIA and FBI prior to their being carried out in Iran.

Iran has long accused the US and Israel of having associations with Jundallah, even going so far as to state that the CIA and/or Mossad equip them and help them to plan their attacks. With negotiations between the P5+1 group of countries and Iran now in the home stretch toward a November 24 deadline, Saturday’s disclosure could hardly have come at a worse time. In fact, John Kerry was in Oman, meeting with Iranian Foreign Minister Mohammad Zarif and Catherine Ashton from the EU over the weekend. Despite this disclosure coming out, Sunday’s negotiating session turned into two sessions and a further session was even added on Monday. Upbeat news is still flowing from that meeting, so on first blush the disclosure Saturday didn’t completely disrupt the talks.

My first thought on seeing the article was that it fit perfectly with the previous front page effort by the Times at disrupting the talks. David Sanger “mistakenly” claimed that a new wrinkle in the negotiations would allow Russia to take over enrichment for Iran. This would almost certainly give hardliners the room they need to kill the deal, since maintaining enrichment capacity is a redline issue for Iran.

The reality is that what is under discussion is that Iran would continue its enrichment activities, but ship low enriched uranium to Russia where it would be converted into fuel rods. Evidence that this pathway is making progress can be seen in this morning’s announcement that Iran and Russia have signed an agreement for Russia to build two more nuclear power plants in Iran. It seems that a new wrinkle on the arrangement might allow Russia to prepare the fuel rods inside Iran:

Russia, which is involved in those talks, will also cooperate with Teheran on developing more nuclear power units in Iran, and consider producing nuclear fuel components there, according to a memorandum signed by the heads of the state atomic bodies, Sergey Kirienko of Russia’s Rosatom and Ali Akbar Salehi of Iran’s Atomic Energy Organization (AEOI).

Just as hinting falsely that Iran was negotiating away its enrichment technology was a move by the Times that could have disastrous effects on the ongoing negotiations, I felt that providing this strange story on McHale would give ammunition to those in Iran who see the CIA behind Jundallah. However,there is another possibility. In a Twitter discussion with Arif Rafiq on the disclosure, Rafiq suggested that “the US is coming clean about something that has concerned Iranians for years. Could be a plus”. He later allowed that hardliners could see it as a smoking gun. A further interesting speculation from Laura Rozen on Twitter suggested that perhaps the US played both sides of Jundallah:

So let’s consider these nicer possibilities for a moment. Maybe we did give Rigi to the Iranians. Maybe we are admitting Jundallah contacts now as a way of making sure it ends. But if that is the case, Risen and Apuzzo are a very strange source for how this news came out. An admission of this sort is what I would expect to be routed through David Ignatius, Eli Lake or Josh Rogin. Risen would be especially difficult to see as cooperating with specific timing on a disclosure. Recall that the Times spiked his disclosure of Bush’s illegal wiretaps until after the 2004 elections and then only published when the book was about to drop. To believe that Risen is now somehow cooperating with the government is a huge stretch, but he does still appear to be at risk of being subpoenaed in the ongoing DOJ actions in response to the wiretapping disclosure.

Many issues surrounding US support for Jundallah (and MEK) are still quite unresolved in my view. Recall that we had the whole “false flag” controversy back in January of 2012, where it was “disclosed” that Mossad ran Jundallah while posing as CIA. Not too long after that, Sy Hersh disclosed that the US has trained operatives for the MEK (no mention of Jundallah at all in the article) for covert actions against Iran. What particularly raised my hackles in that report was that the training was held at the same site in Nevada where I suspect that the materials used in the 2001 anthrax attacks was produced.

Over at Moon of Alabama, b seems to feel that the US was indeed behind the running of Jundallah. For that to be the case, we are pretty much forced to believe that Risen and Apuzzo have been either duped or coerced. I find so much of what has come out to be conflicting that I doubt we’ll ever completely sort this out. I have no doubts that JSOC and CIA stand ready to see Iran’s enemies prosper, especially as we saw in the MEK training in Nevada. When it comes to involvement in actual operations, I just don’t know. But the possibility that we helped at some times and then handed over Rigi possibly to make up for it sounds so like what our rudderless intelligence services would do that I’m leaning that direction.

Richard Burr Prepares to Capitalize on Refusing to Exercise Intelligence Oversight

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In James Risen’s new book, he provides new details on what happened to the NSA whistleblowers — Bill Binney, Kurt Wiebe, Ed Loomis, Thomas Drake — who tried to stop President Bush’s illegal wiretap program, adding to what Jane Mayer wrote in 2011. He pays particular attention to the effort Diane Roark made, as a staffer overseeing NSA on the House Intelligence Committee, to alert people that the Agency was conducting illegal spying on Americans.

As part of that, Risen describes an effort Roark made to inform another Congressman of the program, one who had not been briefed: Richard Burr.

Despite the warning from (HPSCI’s Republican Staff Director Tim) Sample not to talk with anyone else on the committee about the program, she privately warned Chris Barton, the committee’s new general counsel, that “there was an NSA program of questionable legality and that it was going to blow up in their faces.” In early 2002, Roark also quietly arranged a meeting between Binney, Loomis, and Wiebe and Richard Burr, a North  Carolina Republican on the House Intelligence Committee. Binney told Burr everything they had learned about the NSA wiretapping program, but Burr hardly said a word in response. Burr never followed up on the matter with Roark, and there is no evidence he ever took any action to investigate the NSA program.

I’m not actually surprised that Burr learned the Intelligence Community was engaging in illegal behavior and did nothing. From what we’ve seen in his response to torture, he has served entirely to help CIA cover up the program and protect the torturers. Indeed, in his treatment of John Brennan’s confirmation, he made efforts to ensure Brennan would have to protect the torturers too.

So it’s no surprise that Burr heard details of an illegal program and ignored them.

Still, it’s worth highlighting this detail because, if Democrats do lose the Senate as they are likely to do in November, Richard Burr will most likely become Senate Intelligence Committee Chair. While Dianne Feinstein may be a badly flawed Chair overseeing the IC, Burr will be a nightmare, unloosing them to do whatever they’re ordered.

That’s the kind of career advancement that comes to a guy who remains silent about wrongdoing.

Jim Comey Lied When He Claimed FBI Needs a Judge to Read Your Email

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I believe that Americans should be deeply skeptical of government power. You cannot trust people in power. The founders knew that. That’s why they divided power among three branches, to set interest against interest. — FBI Director Jim Comey

As part of a piece on James Risen’s stories, 60 Minutes did an interview with Jim Comey. It rehearsed his role in running up hospital steps in 2004 to prevent Andy Card from getting an ill John Ashcroft to rubber stamp illegal surveillance — without mentioning that Comey and the other hospital heroes promptly got the same program authorized by bullying the FISA Court. Trevor Timm called out this aspect of 60 Minutes’ report here.

CBS also permitted Comey to engage in Apple encryption fear-mongering without challenge. CNN, to its credit, called Comey on his misrepresentations here.

But perhaps Comey’s biggest stretcher came when Scott Pelley asked him whether FBI engages in surveillance without a court order.

Scott Pelley: There is no surveillance without court order?

James Comey: By the FBI? No. We don’t do electronic surveillance without a court order.

Scott Pelley: You know that some people are going to roll their eyes when they hear that?

James Comey: Yeah, but we cannot read your emails or listen to your calls without going to a federal judge, making a showing of probable cause that you are a terrorist, an agent of a foreign power, or a serious criminal of some sort, and get permission for a limited period of time to intercept those communications. It is an extremely burdensome process. And I like it that way.

Comey was admittedly careful to caveat his answer, stating that FBI does not engage in “electronic surveillance” without a court order. That probably excludes FBI’s use of National Security Letters. Though as DOJ’s Inspector General has made clear, FBI uses NSLs for a number of things — including communities of interest, obtaining one or possibly two degree collection of phone records, as well as a bunch of other things that remain redacted — that the NSL law didn’t envision. Indeed, FBI’s NSL requests have gotten so exotic that some Internet companies started to refuse — successfully — in 2009 to comply with the requests, forcing FBI to use Section 215 orders instead.

But the second part of that exchange — Comey’s claim that “we cannot read your emails without going to a federal judge” is egregiously false.

As both ODNI and PCLOB have made clear, FBI can and does query incidentally collected data obtained under Section 702 (PRISM) — that is, it accesses email content — without a warrant. Alarmingly, it does so at the assessment level, before FBI even has any real evidence of wrong-doing.

Second, whenever the FBI opens a new national security investigation or assessment, FBI personnel will query previously acquired information from a variety of sources, including Section 702, for information relevant to the investigation or assessment. With some frequency, FBI personnel will also query this data, including Section 702–acquired information, in the course of criminal investigations and assessments that are unrelated to national security efforts.

That’s not conducting electronic surveillance — because FBI gets the email after the electronic surveillance has already occurred. But that does entail warrantless access of US person content, and does so without any review by a judge. Indeed, with Section 702 collection, a judge never even reviews the foreign targets, much less the US incidental collection accessed by the FBI.

Now I get that Jim Comey is a terrifically charismatic guy, with great PR instincts. But still, 60 Minutes is supposed to be a journalism show. Why, when Comey was telling 60 Minutes straight out they should not trust the government, did they let him make so many bogus claims?

The Executive Branch’s Vendetta against James Risen

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Sorry for the silence today — I’ve been traveling. Meanwhile, this piece — talking about how insane the government’s pursuit of James Risen has been — was published over at the Nation.

We focused particularly in the number of top officials implicated in stories Risen published.

 But under strong pressure from White House officials—including some later implicated in the legally suspect program—Times editors delayed the story’s publication for over a year, until December 2005. The coverage won Risen and Lichtblau a Pulitzer Prize for “carefully sourced stories on secret domestic eavesdropping that stirred a national debate.” It was the kind of debate that the people running the US surveillance state had been desperate to avoid.

The belated publication of those stories came just before Risen brought out a book that contained reporting on the wiretap program and several other sinister initiatives under categories like “counterterrorism” and “counterproliferation.” On January 13, 2006, the week after Risen’s book State of War reached the stores, Attorney General Alberto Gonzales told a news conference that an investigation into the Times wiretap stories was under way and that “it’s too early to make decisions regarding whether or not reporters should go to jail.” Though not apparent at the time, facts later emerged to show that Gonzales was implicated in the illegal wiretapping that Risen exposed. (As White House counsel, Gonzales had authorized continued operation of the program after the Justice Department refused to do so.)

[snip]

Some high-ranking individuals have been mainstays in the continuation of policies that Risen exposed in his book. John Brennan—President Obama’s former counterterrorism czar and now CIA director—has been at notable cross-purposes with both Risen and Sterling for more than a decade. Brennan was a senior CIA official when the agency rolled out its torture program under Bush, which came under intense public scrutiny after the use of waterboarding was revealed in a May 13, 2004, front-page Times story with Risen as the lead reporter. And Brennan played a key role in the illegal wiretap program, overseeing the production of what personnel in the program called the “scary memos” intended to justify the domestic spying exposed by Risen.

“Linking” Procedures in the Yahoo Opinion

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As I mentioned earlier, Yahoo is finally releasing the documents pertaining to its challenge of Protect America Act directives in 2008. The LAT has loaded the Yahoo documents in an easy to access page.

This post will look primarily at the FISCR opinion.

As you’ll recall, this opinion was previously released in 2009 (and in fact, the previous list has names of some of the DOJ people who are redacted with this release unredacted).

The four main new disclosures I noted are:

  • A discussion of differences between the definition of foreign power in EO 12333 and FISA
  • Concerns Yahoo raised about how inaccurate the first directives it had received (the Court appears to misunderstood the seriousness of the inaccuracies)
  • Discussion of a parting shot — this supplemental brief makes it clear the largely redacted discussion pertains to US person data collected overseas; I’ll probably return to this, but it appears Yahoo’s concerns were born out and led to the addition of Sections 703-5 in FISA Amendments Act.
  • Reference to “linking” procedures which were part of what FISCR used to deem the collection constitutional

That last item — the “linking” procedures — is what was redacted in this post I did when the memo was first released. As I noted then, the procedures were what the FISCR used to meet particularity requirements.

The following passage starts on page 23:

The linking procedures — procedures that show that the [redacted] designated for surveillance are linked to persons reasonably believed to be overseas and otherwise appropriate targets — involve the application of “foreign intelligence factors” These factors are delineated in an ex parte appendix filed by the government. They also are described, albeit with greater generality, in the government’s brief. As attested by affidavits  of the Director of the National Security Agency (NSA), the government identifies [redacted] surveillance for national security purposes on information indicating that, for instance, [big redaction] Although the FAA itself does not mandate a showing of particularity, see 50 U.S.C. § 1805(b). This pre-surveillance procedure strikes us as analogous to and in conformity with the particularly showing contemplated by Sealed Case.

I’ll need to look more closely to find this brief — if it was released. But I suspect that this shows more closely how the metadata dragnets and the content collection are linked. They collect the metadata to mine for “proof” of meaningful connection, then use that to unlock the content. That’s not surprising — it’s what I had been speculating since days after Risen first broke this — but it’s important to flesh out. Because, of course, all this not-a-search metadata really is, because it leads directly to the content.

As I noted in my post in 2009, Russ Feingold released a statement with the release of the opinion, basically arguing that Yahoo could have won this if they had had access to the procedures related to the program (Mark Zwillinger made the same point when he testified to PCLOB).

The decision placed the burden of proof on the company to identify problems related to the implementation of the law, information to which the company did not have access.  The courtupheld the constitutionality of the PAA, as applied, without the benefit of an effective adversarial process.  The court concluded that “[t]he record supports the government.  Notwithstanding the parade of horribles trotted out by the petitioner, it has presented no evidence of any actual harm, any egregious risk of error, or any broad potential for abuse in the circumstances of the instant case.”  However, the company did not have access to all relevant information, including problems related to the implementation of the PAA.  Senator Feingold, who has repeatedly raised concerns about the implementation of the PAA and its successor, the FISA Amendments Act (“FAA”), in classified communications with the Director of National Intelligence and the Attorney General, has stated that the court’s analysis would have been fundamentally altered had the company had access to this information and been able to bring it before the court.

There’s no reason to believe the “linking” procedures are what Feingold was referring to. After all, there still are details of the minimization and targeting procedures that raise big constitutional issues. Plus, we know foreign collection has always been a big concern of Feingold’s. But I am wondering whether part of the problem was that their contact chaining was not very good, and therefore they were collecting people who really weren’t linked to the targets in question.

Which might explain why Yahoo was experiencing so many dud directives in the first months of its operation.

NATO Will Cry Through Their Party Without Guest of Honor

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Remember that as recently as the beginning of last week, Hamid Karzai still clung to the illusion that yesterday was the date on which Afghanistan’s new president would be sworn into office. Yesterday was a very important deadline because tomorrow, NATO begins their summit in Wales. For over a year, this particular summit has been circled on many calendars as the time when Afghanistan’s new president would revel in having signed the new Bilateral Security Agreement and begin to benefit from the graft flow of training and weapons coming from a residual NATO force now immunized against charges in Afghan courts and eligible to remain in the country past the end of this year. With no new president emerging yet, today’s Washington Post reports that NATO is going ahead with their summit, even though there will be a notable absence:

A gathering of leaders from NATO countries this week was supposed to be an opportunity to celebrate the close of the alliance’s long war in Afghanistan and to embrace the country’s new president.

But it’s hard to have a party without the guest of honor.

Despite smiling promises to Secretary of State John F. Kerry last month, two rival candidates to succeed Afghan President Hamid Karzai have failed to resolve a disagreement over a review of disputed election results in time to declare a winner. As a result, there will be no Afghan head of state at the NATO summit in Wales.

Gosh, John Kerry just can’t understand Abdullah Abdullah. Why can’t he be the man Kerry was, and, “for the good of the country”, go ahead and concede in the face of evidence the election was stolen from him? Alternatively, why didn’t Kerry insist that Afghanistan’s Supreme Court just select a winner in the election dispute, so that the country can “move on”? After all, that worked out so well for the US (and, indirectly, for Afghanistan) in 2000.

NATO’s Secretary General managed to hold back on his tears long enough to issue a statement picked up in the Post story:

NATO Secretary General Anders Fogh Rasmussen made the best of a disappointing situation at a news conference Monday.

“We have done what we set out to do,” Rasmussen told reporters in Brussels. “We have denied safe haven to international terrorists. We have built up capable Afghan forces of 350,000 troops and police. So our nations are safer, and Afghanistan is stronger.”

Who needs international terrorist groups when you have home-grown ones? The Taliban had this to say to NATO:

The Taliban militants group in Afghanistan touted the group’s role as trouble shooters, bridge builders and problem solvers in a bid to ally the North Atlantic Treaty Organization’s concerns.

Taliban following a statement released ahead of the NATO summit in Wales, claimed that the group is the true representative of the Afghan people.

The statement further added that the group can play a central role in resolving the ongoing crisis of Afghanistan.
“The Islamic Emirate has arisen out of this nation and shared in all its toils and sacrifices. Due to this the Afghan nation has firm belief in the Islamic Emirate,” the statement by Taliban said.

Taliban called for an end of foeign [sic] military occuption [sic] in a bid to end the crisis in Afghanistan and inisted [sic] that complete withdrawal of foreign forces is the only successful solution.

Afghanistan’s ToloNews tries to put the best face on the summit taking place without a new president:

The North Atlantic Treaty Organization (NATO) summit is scheduled to be held this Thursday and Friday on September 4-5 in Wales where the 28-nation alliance will discuss and decide the financial and security assistance to Afghanistan.

Representing Afghanistan will be Afghan Defense Minister Gen. Bismillah Mohammadi, given that a president has not been elected yet.

Afghan political analysts hope that the absence of a new president will not change NATO’s stance on Afghanistan and continue to be committed to the country after the formation of a national unity government, stressing that the summit will significantly impact the nation’s future.

The article even does a bit of lobbying ahead of the summit:

The NATO Chicago conference had pledged to provide $4.1 billion to the Afghan National Security Forces (ANSF); however the Afghan government has announced that the overall financial obligations of the forces are currently about $6.1 billion.

Gosh, even as Afghanistan melts down, graft training and arming Afghan troops remains a growth industry.

The real tears are left for the final sentence of the story:

This year’s summit has been called the most important conference in the past 70 years.

Poor NATO. They’re hosting the most important party in 70 years and yet they have no boyfriend to bring to it. Go ahead, NATO. You can cry if you want to.

A Note Of Praise For Jake Tapper

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photoYammering on the internet is not hard work, in fact it is blindingly (and sometimes maddeningly when it is pointed in your direction) easy. Getting heard, and functionally interacting in a fashion that can contribute to the real focus and discussion, however, is hard. For my part, I often carp enough about the failings of big media that it is only right to give praise where due.

Today credit is due to CNN’s Jake Tapper. Because he cares.

Two nights ago, rightly or wrongly …. but I think rightly … I laid into CNN for their overbearing focus on repetitive, and somewhat mindless, continuing drivel on celebrity. That was, of course, in relation to Robin Williams’ death. A noteworthy, sad, and tragic event for sure, but there was only so much news, the rest was pure Entertainment Tonight like pathetic drivel.

So I went after CNN, and I tacked Jake Tapper’s twitter handle on the end. I did so not because I thought he was the prime offender producing the overall CNN news product, but because I knew, from prior interaction, that Jake actually gives a damn and and is a contact point at CNN who would care. And maybe…maybe…be a change point. That was both fair, and unfair to him personally, at the same time.

I am pretty sure both CNN and Jake were bombarded by by an untold number of missives of the same variety. I don’t how how other inflection points at CNN dealt with what was surely a lot of feedback, but the fact Mr. Tapper took the time to take umbrage, and discuss…and think…seems significant and admirable to me. And I admire that.

I thought about writing this post long before I saw the following, but I was off with clients and court appearances, and could have easily shined it on, as I do with so many posts I want to write but don’t get to.

Until I saw something from Mr. Jake Tapper today that was just awesome.

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Well, yes!

But then, not long later, came this:

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Well, to be sure, this is the stuff even a critic of journalism can love and applaud. You know why? Because not only is solidarity with journalists under grand jury and governmental oppression admirable (I have some experience in GJ targeting), it is the only, and only proper, thing that can be done.

There are not many out there to be so applauded. Maybe tomorrow there will be an issue, and moment of difference, on a different case. So it goes, and so be it.

But, now, James Risen stands exposed and on his own. As a man, and as a journalist, Tapper stood up and gave public square to his voice. Good on him.

Tonight, I am glad Jake Tapper is out there and is willing to engage. Tonight he did one hell of a report from Ferguson Missouri. Even if a big part was consumed by press conference feed. But, before and after, he made his voice clear. That is not exactly a common thing. It is to be commended.

Give the man credit, he was there, and he cares. And I will buy him a drink.

The FBI Has Significant Problems Counting Its National Security Letters

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NSL numbersToday’s Inspector General Report on FBI’s use of National Security Letters has set off a bunch of alarm bells in my head.

At issue are two unexplained problems.

First, the Inspector General identified a huge drop in NSL use for the years covering this report: FBI obtained 49,425 NSLs in 2006, the year before this report. It obtained 54,935 afterwards. The years in-between — the 3 years covered by this report — NSLs dropped off a relative cliff, with 20% fewer in 2007 and even fewer in 2009.

The IG wasn’t able to offer any explanation for this, besides the possibility that increased scrutiny on NSL use led people to use other methods to get this information.

However, two supervisors and a division counsel told us that they believe agents use NSLs less often now than they did five years ago. These individuals told us that because of increased scrutiny on NSL use agents employ alternative investigative tools when possible.

In testimony last year, Jim Comey said FBI agents would just use grand jury subpoenas rather than NSLs if the NSLs became too onerous, so that may be where the activity disappeared to.

Hey, if 20% of FBI NSLs could be grand jury subpoenas without any problem, let’s make them do that!

It’s FBI’s other counting problems — and its non-answers — that have me even worried.

According to the IG, the FBI is not reporting as much as 7.3% [update, 10/16: I think the correct number is 6.8%] of its NSL use to Congress. For example, when the IG tried to pull NSLs by NSL type (that is, toll billing, financial records, electronic transaction records), it found a significant discrepancy between what had been reported to Congress and what FBI’s internal spreadsheets showed.

[T]he NSL data in the itemized spreadsheets does not exactly match the NSL data reported to Congress in 2008 and 2009. The total number of requests reported for each year [by transaction type] is more than the total number of NSL requests reported to Congress by 2,894 and 2,231 requests, respectively. (63)

So for 2009, where FBI requested just 30,442 NSLs, FBI did not report 7.3% of the NSLs it requested.

(I can’t double check my math here because FBI redacted some of these tables, but I guess that’s one of the hazards of overclassifying things.)

That’s troubling enough, as is FBI’s lackadaisical attitude towards correcting the disparity.

After reviewing the draft of this report, the FBI told the OIG that while 100 percent accuracy can be a helpful goal, attempting to obtain 100 percent accuracy in the NSL subsystem would create an undue burden without providing corresponding benefits. The FBI also stated that it has taken steps to minimize error to the greatest extent possible.

Ho hum, we’re just the FBI, why expect us to be able to police ourselves?

But it gets weirder.

First, the one theory the IG came up with to explain the discrepancy is that FBI is not counting all the manual NSLs that bypass their automatic counting system implemented in response to the first IG Reports on NSLs.

In fact, they’re not: FBI’s Inspection Division found they’re not counting some significant (not single digit) percentage number of their manual NSLs (they redact how much they’re not counting on page 39).

But the IG seems to suspect there may be even more manual requests that are not being counted at all.

[T]he total number of manually generated NSLs that the FBI inspectors identified is relatively small compared to the total number of 30,442 NSL requests issued by the FBI that year. What remains unknown, however is, whether the FBI inspectors identified all the manually identified generally NSLs issued by the FBI or whether a significant number remains unaccounted for and unreported.(58)

If you guessed that FBI redacted under what circumstances FBI permits agents to bypass this automatic counting system, you’d be right. That discussion is in footnote 35 on page 17, and again on pages 113-115.

But I worry, given one observation from the IG, that they’re bypassing the automatic system in cases of “sensitive” investigations. Some apparent moron tried to explain why the IG found higher numbers for NSLs than Congress because the NSLs related to sensitive investigations were being reported to Congress but not the IG.

After reviewing the draft of this report, the FBI told the OIG for the first time that the NSL data provided to Congress would almost never match the NSL data provided to the OIG because the NSL data provided to Congress includes NSLs issued from case files marked “sensitive,” whereas the NSL data provided to the OIG does not. According to the FBI, the unit that provided NSL data to the OIG does not have access to the case files marked “sensitive” and was therefore unable to provide complete NSL data to the OIG. The assertion that the FBI provided more NSL data to Congress than to the OIG does not explain the disparities we found in this review, however, because the disparities we found reflected that the FBI reported fewer NSL requests to Congress than the aggregate totals. (58)

Aside from the revelation that FBI doesn’t understand how numbers work — that if Congressional reporting reflected a larger universe of NSLs than what the IG got to see, Congressional numbers should be higher, now lower — this also seems to mean that the IG is not being permitted to review the NSLs relating to sensitive investigations.

Now, it’s not entirely clear what FBI means by “sensitive” in this circumstance. But generally, “sensitive” investigations at FBI are those that investigate reporters, faith leaders, and politicians.

So it seems possible the FBI is not permitting the IG to review precisely the practices he should review.

Which brings me to another matter that is almost entirely redacted.

As I’ve reported repeatedly, one thing the last IG report on Exigent Letters showed is that a number of journalists have had their phone records collected by FBI. In addition, the 2011 DIOG made it acceptable to use NSLs to do so. Here’s the section of the executive summary of this report that describes whether FBI has resolved this issue.

Journalist NSLs

From which I can only assume that FBI is continuing to use NSLs to collect journalist records (if FBI would like to declassify this language to prove me wrong, I welcome their transparency!).

So to sum up:

  • FBI can’t figure out why its NSL numbers dropped of a cliff for the years in question
  • FBI can’t figure out what happened to up to 7.3% of its NSLs
  • The IG thinks it is possible there are even more NSLs missing from those numbers
  • When asked, the FBI said maybe discrepancies come from files on sensitive investigations that the IG has no access to
  • The FBI does appear to be continuing its use of NSLs to hunt down journalists’ sources, which qualifies under the DIOG as a “sensitive” investigation, along with faith leaders and politicians

All that could be badly wrong — much of this information is redacted from both me, and in some cases, from Congress.

But doesn’t it raise some awfully big questions?

Working Thread, PCLOB Report

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The pre-release PCLOB report on Section 702 is here. This will be a working thread.

PDF 16: First recommendation is to include more enunciation of foreign intel purpose. This was actually a Snowden revelation the govt poo pooed.

PDF 17: Recommends new limits on non-FI criminal use of FBI back door searches, and some better tracking of it (surprised that’s not stronger!). Also recommends new documentation for NSA, CIA back door queries.  Must mean CIA is a problem.

PDF 17: Recommends FISC get the “rules” NSA uses. That suggests there may be some differences between what the govt does and what it tells FISC it does.

PDF 17: Recommends better assessment of filtering for upstream to leave out USP data. John Bates was skeptical there wasn’t better tech too.

PDF 18: Suggestion there are more types of upstream collection than there needs to be.

PDF 27 fn 56: Notes some room in the definition of Foreign Intelligence.

PDF 30: Note how PCLOB deals with issues of scope.

PDF 34: Note the discussion of due diligence. Due diligence problems amount for about 9% of NSA violations.

PDF 34-35: This must be a response to violations reported by Risen and Lichtblau, and is probably one of the things referred to in NSA’s review of its own COINTELPRO like problems.

In a still-classified 2009 opinion, the FISC held that the judicial review requirements regarding the targeting and minimization procedures required that the FISC be fully informed of every incident of noncompliance with those procedures. In the 2009 opinion, the court analyzed whether several errors in applying the targeting and minimization procedures that had been reported to the court undermined either the court’s statutory or constitutional analysis. (The court concluded that they did not.)

PDF 39: NSA gets all PRISM collection, and it goes from there to CIA and FBI. CIA and FBI get only PRISM data.

PDF 42: Another FISC opinion to be released.

In a still-classified September 2008 opinion, the FISC agreed with the government’s conclusion that the government’s target when it acquires an “about” communication is not the sender or recipients of the communication, regarding whom the government may know nothing, but instead the targeted user of the Section 702–tasked selector.

PDF 43: This sounds like a lot of about collection is of forwarded emails.

There are technical reasons why “about” collection is necessary to acquire even some communications that are “to” and “from” a tasked selector. In addition, some types of “about” communications actually involve Internet activity of the targeted person.138 The NSA cannot, however, distinguish in an automated fashion between “about” communications that involve the activity of the target from communications that, for instance, merely contain an email address in the body of an email between two non-targets.139 

PDF 45: I’ll have to check but some of these cites to Bates may be to still redacted sections.

[Headed to bed–will finish my read in the AM]

PDF 47: One thing PCLOB doesn’t explain is if the FBI and CIA targeting takes place at NSA or at those agencies. In the past, it had been the former.

PDF 49: .4% o f targeting ends up getting an American.

PDF 55: NSA shares technical data for collection avoidance purposes. This sounds like the defeat list in the phone dragnet, and like that, seems tailored not just for protecting USPs generally, but sensitive communications (like those of MoCs) more specifically.

PDF 57: This was implicit in some of the docs released by Snowden, but the govt now tags Section 702 data, as they do Section 215, so as to ensure it gets the heightened treatment provided by the law.

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