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Bengh– Blackwater!

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You should definitely read the James Risen story describing how the head of Blackwater’s operations in Iraq threatened to kill an investigator into the company’s practices in the period before the Nisour Square. It definitely confirms every concern that has been raised about mercenaries generally and Blackwater specifically.

But I want to look at the frame Risen gave the story, which I suspect few will read closely.

His memo and other newly disclosed State Department documents make clear that the department was alerted to serious problems involving Blackwater and its government overseers before the Nisour Square shooting, which outraged Iraqis and deepened resentment over the United States’ presence in the country.

[snip]

Condoleezza Rice, then the secretary of state, named a special panel to examine the Nisour Square episode and recommend reforms, but the panel never interviewed Mr. Richter or Mr. Thomas.

Patrick Kennedy, the State Department official who led the special panel, told reporters on Oct. 23, 2007, that the panel had not found any communications from the embassy in Baghdad before the Nisour Square shooting that raised concerns about contractor conduct.

“We interviewed a large number of individuals,” Mr. Kennedy said. “We did not find any, I think, significant pattern of incidents that had not — that the embassy had suppressed in any way.”

The reason this is coming out — aside from the fact the government is trying to try the Nisour Square killers again — is to show that contrary to what Patrick Kennedy said after having done a review of security practices in 2007, there had been a pattern of incidents, and they had been suppressed by the Embassy.

Now consider how that reflects on the GOP’s second favorite scandal, Benghazi. Not only was Kennedy the key judge about the events leading up to that event (which is normal — he’s been a key player in State for a very long time; I’m beginning to believe he’s State’s institutional defender in the same way David Margolis was at DOJ), but the question of security oversight is important there: Blue Mountain Group appears to have done its job inadequately (and there are some sketchy things about its contract and contractors).

Benghazi is actually not a bigger scandal than that State suppressed knowledge of Blackwater’s problems. But there does seem to be continuity.

Breaking Point: Media Finally Reporting on Violence Tied to Right Wing Extremism

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In April of Barack Obama’s first year in office, right wing America had a collective meltdown when the Department of Homeland Security dared to write a report (pdf) on right wing extremism and the domestic terrorists that could be tied to the movement. Michelle Malkin went into a full mouth froth, declaring that the report was an Obama DHS hit job on conservatives. ABC was quick to join in, documenting more of the responses of “conservatives”. Sadly, Obama and the DHS backed down meekly and the concept was quickly scrubbed from public debate.

But attacks carried out by the very types of right wing radicals described in the report have continued. The toll from these attacks appears to have gotten high enough that the media finally has found its voice again and is willing to document the carnage while connecting the dots. After the deadly shootings at a Jewish center in the Kansas City area in April of this year, Peter Bergen and David Sterman penned an op-ed piece carried by CNN. They dared title the piece “U.S. right wing extremists more deadly than jihadists” and produced documentation to back up their damning headline:

In fact, since 9/11 extremists affiliated with a variety of far-right wing ideologies, including white supremacists, anti-abortion extremists and anti-government militants, have killed more people in the United States than have extremists motivated by al Qaeda’s ideology. According to a count by the New America Foundation, right wing extremists have killed 34 people in the United States for political reasons since 9/11. (The total includes the latest shootings in Kansas, which are being classified as a hate crime).

By contrast, terrorists motivated by al Qaeda’s ideology have killed 21 people in the United States since 9/11.

With Sunday’s killing of two policemen and a “good guy with a gun” in Las Vegas by another pair of right wing extremists, Paul Waldman was able to take to the blog pages of the Washington Post to tie these violent attacks to the venom-filled rhetoric of the right:

But what I am saying is this: there are some particular features of conservative political rhetoric today that help create an atmosphere in which violence and terrorism can germinate.

The most obvious component is the fetishization of firearms and the constant warnings that government will soon be coming to take your guns. But that’s only part of it. Just as meaningful is the conspiracy theorizing that became utterly mainstream once Barack Obama took office. If you tuned into one of many national television and radio programs on the right, you heard over and over that Obama was imposing a totalitarian state upon us. You might hear that FEMA was building secret concentration camps (Glenn Beck, the propagator of that theory, later recanted it, though he has a long history of violent rhetoric), or that Obama is seeding the government with agents of the Muslim Brotherhood. You grandfather probably got an email offering proof that Obama is literally the antichrist.

Writing over at the Bulletin of the Atomic Scientists, Charles Blair brings us the sobering math on the recent growth of these radical groups: Read more →

DOJ’s Cake-Eating on Journalists Will Build Support for Faulty Journalist Shield

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As many people have reported, SCOTUS today declined to take Jim Risen’s appeal of the Fourth Circuit’s decision requiring him to testify in Jeff Sterling’s trial. As I noted at the time of the decision, this effectively guts any reporter’s privilege in the circuit that matters: the Fourth Circuit governs the CIA and JSOC.

Now, Risen’s team is calling on DOJ to uphold Eric Holder’s promise of last week, that no journalist engaged in journalism will be prosecuted on his watch.

“As long as I’m attorney general, no reporter who is doing his job is going to go to jail. As long as I’m attorney general, someone who is doing their job is not going to get prosecuted.”

As Kevin Gosztola has noted on Twitter, however, there’s a difference between prosecution and jailing under contempt. So that promise is likely meaningless.

And not only does that put Holder where he wants to be: with the courts on his side, exercising the discretion to jail a journalist or not as he can convince the court.

Furthermore, consider how it creates pressure for Chuck Schumer’s (Administration-backed) badly flawed press shield bill. The bill wouldn’t cover me. It wouldn’t cover Glenn Greenwald. And it would leave James Risen precisely where he is now, subject to a judges ruling on the significance of the information he has.

There was already a lot of support for this bill. But now that the Executive Branch has gained all the leverage where it matters, I imagine there’ll be a greater push to Do Something — even if that just codifies an official press that gets privilege.

On the same day NYT’s Adam Liptak reported this decision, he also did a profile of SCOTUSBlog’s Thomas Goldstein, who — because he doesn’t fit the official model of journalist, in spite of the number of people who rely on his journalism — still can’t get press SCOTUS press credentials. In spite of near universal acknowledgment of the important role SCOTUSBlog plays, the traditional press hasn’t budged, which has helped SCOTUS punt on the issue too.

The closer the press gets to official sanction, the worse the reporting we’ll get.

Does NSA Consider Facial Matches “Connections”?

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James Risen and Laura Poitras have a new Snowden story on the many ways the NSA collects and matches images.

While once focused on written and oral communications, the N.S.A. now considers facial images, fingerprints and other identifiers just as important to its mission of tracking suspected terrorists and other intelligence targets, the documents show.

“It’s not just the traditional communications we’re after: It’s taking a full-arsenal approach that digitally exploits the clues a target leaves behind in their regular activities on the net to compile biographic and biometric information” that can help “implement precision targeting,” noted a 2010 document.

One N.S.A. PowerPoint presentation from 2011, for example, displays several photographs of an unidentified man — sometimes bearded, other times clean-shaven — in different settings, along with more than two dozen data points about him. These include whether he was on the Transportation Security Administration no-fly list, his passport and visa status, known associates or suspected terrorist ties, and comments made about him by informants to American intelligence agencies.

You can sort of map out where the NSA is getting its photos from the non-denials Vanee Vines gave NYT. For example, she did not deny that NSA collects images off Facebook. She also did not deny NSA is collecting iris scans.

She added that the N.S.A. did not have access to photographs in state databases of driver’s licenses or to passport photos of Americans, while declining to say whether the agency had access to the State Department database of photos of foreign visa applicants. She also declined to say whether the N.S.A. collected facial imagery of Americans from Facebook and other social media through means other than communications intercepts.

Perhaps most interesting, the story describes the “identity intelligence” analysts who map all these pieces together.

The agency has created teams of “identity intelligence” analysts who work to combine the facial images with other records about individuals to develop comprehensive portraits of intelligence targets.

We’ve know they do this. Here’s how Snowden described it to the EU.

It has been reported that the NSA’s XKeyscore for interacting with the raw signals intercepted by mass surveillance programs allow for the creation of something that is called “fingerprints.”

I’d like to explain what that really means. The answer will be somewhat technical for a parliamentary setting, but these fingerprints can be used to construct a kind of unique signature for any individual or group’s communications which are often comprised of a collection of “selectors” such as email addresses, phone numbers, or user names.

This allows State Security Bureaus to instantly identify the movements and activities of you, your computers, or other devices, your personal Internet accounts, or even key words or other uncommon strings that indicate an individual or group, out of all the communications they intercept in the world are associated with that particular communication. Much like a fingerprint that you would leave on a handle of your door or your steering wheel for your car and so on.

[snip]

This provides a capability for analysts to do things like associate unique identifiers assigned to untargeted individuals via unencrypted commercial advertising networks through cookies or other trackers — common tracking means used by businesses everyday on the Internet — with personal details, such as individuals’ precise identity, personal identity, their geographic location, their political affiliations, their place of work, their computer operating system and other technical details, their sexual orientation, their personal interests, and so on and so forth. There are very few practical limitations to the kind of analysis that can be technically performed in this manner, short of the actual imagination of the analysts themselves.

While the NYT raises a slew of questions (starting with, again, why the NSA was purportedly unable to ID the Tsarnaevs via facial recognition, given that this program was expanded in the wake of the UndieBomb attack).

But I’m particularly interested in whether photo information gets used as part of the government’s correlations process: its chaining of people who know each other. Because, now that the phone dragnet authorizes chaining on “connections” in addition to actual phone calls, the photos on a smart phone would provide really useful ways of chaining people (it’d be easy to map the photo metadata, without having to do facial recognition).

Is part of the NSA’s move to have telecoms do this chaining — which civil liberties NGOs cheered so loudly — an effort to get to the photos we all keep in our cell phones?

The Source of the Intelligence Legitimacy Problem

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Ben Wittes went to a secret meeting on “Intelligence Challenges” and came away with the realization that even as we are more reliant on intelligence, the public has grown more skeptical of the government’s use of it.

And from the beginning of the day, one theme has arisen repeatedly: call it the “intelligence legitimacy paradox.”

The paradox, about which more than one speakers has wrung his or her hands, is that the threat environment America faces is growing ever more complicated and multifaceted, and the ability to meet it is growing ever-more-deeply dependent on first-rate intelligence. Yet at precisely the same time, the public has grown deeply anxious about our intelligence authorities and our intelligence community is facing a profound crisis of legitimacy over its basic authorities to collect.

The explanation for the paradox, I think, is simple: technology. The core reason the American threat environment is so complicated is the spread of technology. It’s what gives rise to global terrorist groups, to cyber threats, and it’s what allows relatively weak nations to play in the big leagues of international power politics. But at the same time, technological change is also the fundamental reason for the intelligence legitimacy crisis. The more ubiquitously communications technology spreads and the more integrated it all becomes globally, after all, the more that surveillance of the bad guys—in all their complexity—requires the intelligence community to surveil systems that we all use every day too.

Curiously, Ben doesn’t consider some other far more likely possibilities, all of which I suspect are at least as important:

  • The government trumped up a war on false intelligence. The war killed hundreds of thousands, badly exacerbating the terrorist threat in front of us, and bankrupted our country.
  • The government chooses to apply “intelligence” to some problems — terrorists and cybertheft of defense contractors and crafting trade deals that send more manufacturing jobs overseas — but not to others — finding and holding accountable the people who ruined our economy. Intelligence no longer serves the average person’s interests, and at times serves interests very much opposed to the average person.
  • The intelligence community’s excessive secrecy, punctured by exposure that shows the secrets weren’t really all that secret and in fact were kept secret largely because the average person might object, discredit it. So too does the hypocrisy exposed when those secrets come out. So too does the government’s use of secrecy to gain an advantage when litigating against its citizens.

Technology may have contributed to the way these things delegitimized intelligence, because it made it easier to demonstrate the lies behind the Iraq War, the corruption of the press, the unwillingness to take on more pressing threats to the average person, the hypocrisy behind the secrecy of power.

And technology may make the threats the government deigns to fight more effective.

But underlying it, the legitimacy problems are more primary. They are earned by the intelligence community, not created by the technology it faces. They are exacerbated by an increasing distance between the intelligence world — those select with clearance — and the people they very distantly claim to serve.

Sure, it might be easier for the government to fight these threats if it hadn’t already squandered its legitimacy. But it squandered it in ways that are unrelated to technology.

US, UK Just Can’t Stop Hiding Prisoners in Afghanistan

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It is a tradition that goes back to the very start of the Great War on Terror. Secret detention of prisoners has been both a central feature of the US approach to its response to terrorism and a rallying point for the creation of new enemies. In order to sustain this practice, the US has resorted to remarkable levels of dissembling and language engineering. Fresh controversy has arisen in Afghanistan centering around Afghanistan’s insistence (rooted in Afghan law), that all Afghan prisoners must be under Afghan control (note: the issue of some 49 or so foreign prisoners the US maintains at Parwan prison is completely separate).

The New York Times first broke the story on this latest controversy on Saturday:

A commission appointed by President Hamid Karzai to investigate detention facilities run by American and British forces in southern Afghanistan claimed Saturday to have uncovered secret prisons on two coalition bases, an allegation that could not be immediately confirmed but that was likely to further complicate relations between the Afghan government and its allies.

“We have conducted a thorough investigation and search of Kandahar Airfield and Camp Bastion and found several illegal and unlawful detention facilities run and operated by foreign military forces,” said Abdul Shakur Dadras, the panel’s chairman.

Additional stories on the issue now have come out from both the Washington Post and AP. The Post story describes the facilities that were found:

Abdul Shokur Dadras, a member of the commission, said two of the jails were overseen by British soldiers at Camp Bastion in Helmand province, while a third jail at that base was under American military control. At Kandahar Airfield, also in the southern part of the country, three more foreign-run prisons were discovered — one controlled by American soldiers, one by the British and one managed by a joint coalition force, Dadras said.

The US, as usual, was quick to declare innocence. From the Times story:

Lt. Col. J. Todd Breasseale, a spokesman for the Defense Department, wrote in an email, “Every facility that we use for detention is well known not only by the government of the Islamic Republic of Afghanistan, but also by the I.C.R.C.,” a reference to the International Committee of the Red Cross, a nonpartisan organization that provides humanitarian care for victims of conflict.

The International Security Assistance Force, or I.S.A.F., as the coalition is known, said in a statement on Saturday that it was “aware of their investigative team looking into the detention facilities in Kandahar and Helmand and we are cooperating fully with the investigation on this matter.”

Once again, it appears that a restriction that isn’t really a restriction could be the basis for this latest controversy. From the Times story:

He [Dadras] said his team reviewed the number of prisoners as well as the details of their detention. The issue at Camp Bastion has been aired before. The British military must abide by rules that prohibit the transfer of prisoners to facilities where torture is believed to occur. For now, that concern is unresolved, and the sites where these detainees are held by the British forces could be the locations Mr. Dadras is referring to.

In Kandahar, the details are less clear. American forces are allowed to detain combatants seized on the battlefield for up to 96 hours before turning them over to the Afghan government. It was unclear whether Mr. Dadras was referring to such detainees or whether his commission had uncovered evidence of prisons that were illegally holding Afghans.

As we will see in a bit, this restriction to holding Afghan prisoners for 96 hours applies to British forces as well. Except that as with virtually all “restrictions” on coalition forces in Afghanistan, this one doesn’t apply if they don’t want it to. From the AP story: Read more →

Afghanistan Staggers Toward Election

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Saturday will mark the first time Afghanistan has gone to the polls to choose a new president since the US overthrew the Taliban and put Hamid Karzai in charge. This will hardly be an accomplishment to herald in the US press, although I am sure the military will attempt to get major outlets to tout it as so after the fact. In fact, even the rosy “look what has been accomplished in Afghanistan” fluff piece published today in Khaama Press cites a paltry list of accomplishments, such as 50 television stations and not quite half a million Afghans on Facebook. Tellingly, though, a closer look reveals that the piece is attributed to Dr. Florance Ebrahimi. It turns out that even though she is originally from Kabul, she practices in Sydney. And why shouldn’t she? Afghanistan is tied with North Korea and Somalia at the very bottom of the list when countries are ranked for their level of corruption. And it appears that even before the election takes place, ten percent of the planned polling stations have been closed due to security concerns. And what of the candidates? The top three are profiled here by the New York Times.  All three of the leaders have already pledged to sign the Bilateral Security Agreement, keeping US troops in Afghanistan beyond the end of this year–and thus assuring the maximal continuing flow of US funds to fuel even more corruption. The candidates are noteworthy to me only in that two of them have running mates that would rival Dick Cheney as the most notorious war criminal to be Vice President of a country in the past 15 years.

Today’s New York Times piece cited above on the closure of polling places due to anticipated violence is devastating. For example:

One of the few polling centers in this part of Logar Province is the government’s district headquarters, a building so devastated by rocket attacks and Taliban gunfire that it looks more like a bomb shelter than an administrative office.

As the body count for security forces has risen over the past few days in this embattled district, a stretch of dusty farmland surrounded by mountains, it has become clear that no one here is going to vote on Saturday, either for president or for provincial council delegates.

So far, that has not stopped security officials from proclaiming the district open for voting: It is not among the roughly 10 percent of 7,500 total national sites shut down as too dangerous to protect. The Charkh district center has been pumped full of security forces to keep the vote a nominal possibility, but residents know that within a day or two after the elections, the guards will be gone and the Taliban will remain.

“The government has no meaning here,” said Khalilullah Kamal, the district governor, who was shot two times in the stomach a few months back while speaking in a mosque. “If there is no expectation that we will arrest people who break the law, then how do we expect the people to come and vote?”

Think about that. The polling place in this passage looks like a bomb shelter and life has gotten so violent there that it is clear nobody will vote there Saturday. And yet this site isn’t included among the 10 percent of sites that won’t be open Saturday. Further, “government has no meaning here” reflects the utter failure of US efforts to establish a unified government in Afghanistan. But does that apply only to a small area? Hardly. Consider that the Special Inspector General for Afghanistan Reconstruction stated back in October that it is likely that no more than 21 percent of Afghanistan will be accessible to SIGAR  (pdf) to carry out oversight functions (and the State Department warned them that the 21 percent figure may be overly optimistic) by the end of this year.

Since the US has already formally handed over security operations to the Afghans, what are they doing to make the election safe? On Tuesday they announced that 60,000 “fresh” (I presume this means newly trained? How well were they screened?) Afghan National Army troops were deployed across the country for election security. Then, on Wednesday, the figure was increased to 195,000 total security personnel when ANA figures were joined with security personnel from the Afghan National Police and the National Directorate of Security. That’s quite a force. So for roughly 7500 polling stations, that gives about 26 security personnel guarding each site if they are distributed evenly. Oh, and to protect Westerners before the election, places where they tend to gather have been closed.

Whatever the outcome on Saturday, I see little reason to be optimistic that there will be any improvement in living conditions for the average Afghan citizen.

John Brennan Trolls Emptywheel Even Before He Prevaricates in Response to Dianne Feinstein

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Screen shot 2013-03-08 at 1.27.57 PMThere’s a lot to be said about John Brennan’s appearance at the Council on Foreign Relations today (video here). I’m actually most interested in Brennan’s refusal, twice, to answer questions about whether the NSA needs to engage in bulk collection.

QUESTION: Good morning. Tom Risen with U.S. News and World Report. I’d like to follow up on some — talk about the intelligence gaps. Edward Snowden, yesterday, said that he’s accused the NSA’s mass surveillance of distracting from pinpointed, credible threats. Do you think from where you sit that there’s been any intelligence gaps in the NSA or the CIA on how they could conduct monitoring or spying better?

BRENNAN: Well, you know, anybody who violates their oath in terms of protecting sensitive classified information really has done a great disservice not just to the country, but also has put the American people at harm. NSA, CIA, and others now are looking at what it is that we need to do to mitigate whatever types of — of gaps that we might now face as a result of — of disclosures, publicly.

So we are trying to stay ahead of the challenge, do what we can, both in the HUMINT and SIGINT, as well as other fronts, working very closely with our intelligence partners. But, you know, distractions, you know, do take away from our focus on the — the substantive functional issues that really deserve our full attention.

[snip]

MITCHELL: And can you [keep our country safe] without the mass collection of metadata?

BRENNAN: You know, there — there are a lot of challenges as that digital domain has changed. You know, you ask five people what metadata means, you know, they’ll have probably five different explanations. Probably three or four of them are going to be totally off the mark. Metadata itself is changing. You know, content, bulk data collection, these are things that, you know, really, you know, challenge the mind as far as, how are you going to ensure that if there is a terrorist in this country and he’s determined to do harm with, you know, a conventional explosive or a, you know, biological or chemical weapon, how are you going to be able to operate at the speed of light so that if you get intelligence you find out where that person is? You know, as I said, memories of 9/11, I think, recede in the smoldering ashes on the Manhattan landscape. [my emphasis]

Brennan first responds to Snowden’s claim by attacking his person, without addressing his claim. He then babbles about the challenge of thinking of bulk data. “Content, bulk data collection, these are things that, you know, really, you know, challenge the mind.” Which is a not very graceful way to dodge the question. But he doesn’t answer the question either time.

Most reporters, however, are focusing on Brennan’s prevarications in response to Dianne Feinstein’s statement today.

Well, first of all, we are not in any way, shape or form trying to thwart this report’s progression, release. As I said in my remarks, we want this behind us. We know that the committee has invested a lot of time, money and effort into this report, and I know that they’re determined to put it forward.

We have engaged with them extensively over the last year. We have had officers sit down with them and go over their report and point out where we believe there are factual errors or errors in judgment or assessments. So we are not trying at all to prevent its release.

As far as the allegations of, you know, CIA hacking into, you know, Senate computers, nothing could be further from the truth. I mean, we wouldn’t do that. I mean, that’s — that’s just beyond the — you know, the scope of reason in terms of what we would do.

[snip]

This review that was done by the committee was done at a facility where CIA had a responsibility to make sure that they had the computer wherewithal in order to carry out their responsibilities, and so if there was any inappropriate actions that were taken related to that review, either by CIA or by the SSCI staff, I’ll be the first one to say we need to get to the bottom of it.

And if I did something wrong, I will go to the president, and I will explain to him exactly what I did, and what the findings were. And he is the one who can ask me to stay or to go.

Golly! We would never do any such thing as spy! And even if we get caught, only the President can make me leave, not the Committee.

But I’m most excited that Brennan chose to troll yours truly to introduce his talk.

Now just over a year ago, I had the privilege of placing my hand on the very first printed copy of the Constitution, a draft edited and annotated personally by George Washington himself that is one of the most treasured items held in the National Archives. With my hand on that document, Vice President Biden swore me in as the director of the Central Intelligence Agency.

I chose to take my oath on that precious piece of history as a clear affirmation of what the Constitution means to all of us at the agency. We have no higher duty than to uphold and defend the rule of law as we strive every day to protect our fellow citizens. Like so many things involving, CIA, though, people read nefarious intentions into my decision to take my oath on an early draft of the Constitution that did not contain the Bill of Rights, our Constitution’s first 10 amendments.

So at the risk of disappointing any conspiracy theorists who might be here today, let me assure all of you that I, along with my CIA colleagues, firmly believe in and honor not only the Constitution, but also the Bill of Rights, as well as all subsequent amendments to our Constitution. I just happen to be guilt of being an ardent admirer of George Washington and of the historical foundations of this great country. [my emphasis]

You’ll recall that I was among the first to point out that John Brennan staged a photo op at his swearing in, and either botched the photo op or unveiled his real beliefs, because he swore to protect and defend a Constitution that includes no First or Fourth Amendment.

Take that Dianne Feinstein! You may have accused John Brennan of violating Articles I, II, and III today. But Brennan’s still responding to me busting him for violating the First and Fourth Amendment.

The NSA May Not “Target” Lawyers, But It Does “Spy” on Them

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Congratulations to Ben Wittes who, with this post, demonstrates how the NSA can “spy” on Americans without “targeting” them.

His piece consists of several steps. First, Wittes goes to great effort to show that Laura Poitras and James Risen have not shown that the American law firm representing the Indonesian government, Mayer Brown, was “targeted” (though he seems to think that means they weren’t spied on).

For starters, it is important to emphasize that the Times story does not involve NSA spying. It doesn’t involve any remotely-plausible suggestion of illegality. It doesn’t involve any targeting of Americans. And it doesn’t involve any targeting of lawyers either.

The facts the story reports are these:

  • The surveillance in question was conducted by the Australian Signals Directorate (ASD), not NSA.
  • The surveillance targeted Indonesian government officials engaged in trade talks with the United States.
  • The surveillance apparently took place overseas. (There is no suggestion in the story that the surveillance took place inside the United States.)

In other words, a foreign intelligence service was conducting surveillance against another foreign government, which was in communication with a U.S. law firm. [my emphasis]

This is a flimsy use of NSA’s own euphemism, “targeting,” given that NYT never uses the word in the context of the law firm (they do use it to discuss the law and make it clear ASD discovered they were spying on an American who was working for the USG). The verbs they use include “entangled,” “caught up,” “monitored,” “ensnared,” and “compromised.” All verbs that describe what happens when someone talks to a targeted entity.

From there, Wittes takes a hypothetical quote offered by the NSA spokesperson, explaining that NSA sometimes does ask Five Eyes partners to take special precautions, to suggest the NSA did ask Australia’s ASD to protect the US lawyers involved.

An N.S.A. spokeswoman said the agency’s Office of the General Counsel was consulted when issues of potential attorney-client privilege arose and could recommend steps to protect such information.

“Such steps could include requesting that collection or reporting by a foreign partner be limited, that intelligence reports be written so as to limit the inclusion of privileged material and to exclude U.S. identities, and that dissemination of such reports be limited and subject to appropriate warnings or restrictions on their use,” said Vanee M. Vines, the spokeswoman.

But doesn’t quote the bit that makes it clear NSA would not — and was not — commenting on this case.

The N.S.A. declined to answer questions about the reported surveillance, including whether information involving the American law firm was shared with United States trade officials or negotiators.

Then Wittes shows the ambiguity about what happened when the ASD told the US an American law firm had gotten caught in its surveillance, quoting from the text.

Here’s the direct quote from the document in question.

(TS//SI//REL) SUSLOC Facilitates Sensitive DSD Reporting on Trade Talks: According to SIGINT information obtained by DSD, the Indonesian Government has employed a US law firm to represent its interests in trade talks with the US. On DSD’s behalf, SUSLOC sought NSA OGC guidance regarding continued reporting on the Indonesian government communications, taking into account that information covered by attorney-client privilege may be included. OGC provided clear guidance and DSD has been able to continue to cover the talks, providing highly useful intelligence for interested US customers.

Now, I agree this passage is not crystal clear (though it is less ambiguous than the text itself). What is clear is DSD (the name of which has subsequently been changed to ASD) continued spying on the Indonesian government — and sharing that spying with US “customers” — after SUSLOC consulted (on its behalf) with NSA’s lawyers.

Read more →

Former Professional Journalist Suggests NYT Shouldn’t Pay Its Journalists

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I’m working on a more substantive response to this Ben Wittes post claiming that the NYT’s latest Snowden story doesn’t mean the NSA spies on lawyers.

But I wanted to note how it begins.

Unless the public is really tiring of matters Snowden, the New York Times’s latest is going to stir up the hornet’s nest. “Spying by N.S.A. Ally Entangled U.S. Law Firm,” blares the headline of the story by reporter James Risen and freelancer Laura Poitras—from whom the Times (which insists it never pays for information) sometimes procures Snowden-leaked documents and to whom it gives a byline when it does so. [my emphasis]

The apparent subtext here is that the NYT is paying Laura Poitras not to do journalism on a story she has covered in depth for the last 8 months, but instead for access to documents in her possession (or to use Mike Rogers’ formulation, Poitras is fencing stolen property).

The comment is odd not just because Wittes has not (as far as I know) complained that the NYT also got (or may have in this case — I frankly don’t claim to know these arrangements) Snowden documents directly from the Guardian in a necessary attempt to bypass the UK’s crackdown on press freedom.

Odder still, according to Wittes’ Brookings bio, he worked as a professional journalist for at least a decade, both as a WaPo staffer and as an independent contributor.

Between 1997 and 2006, he served as an editorial writer for The Washington Post specializing in legal affairs. Before joining the editorial page staff of The Washington Post, Wittes covered the Justice Department and federal regulatory agencies as a reporter and news editor at Legal Times. His writing has also appeared in a wide range of journals and magazines including The Atlantic, Slate, The New Republic, The Wilson Quarterly, The Weekly Standard, Policy Review, and First Things.

Therefore I assume he is familiar with the tradition in journalism that when someone reports — even (especially) for a major newspaper as a freelancer — one gets paid.

Except he seems to want to make an exception just in this one case so as to insinuate certain things about Poitras’ reporting.

I do hope all of Wittes’ reporter friends remind him that their profession is still … a profession, and that equating professional journalism with crime sort of puts a damper on the whole freedom of the press thing, not to mention their claim that they should be compensated for their labor.

Disclosure: Obviously, with my affiliation with First Look Media, I do have a tie with Poitras (though not with this story). As an EW post, however, this post has no tie to First Look, and I have talked to neither Poitras nor anyone else at First Look before writing it.

Update: Wittes explains himself at length here (though the *@^$&*# hackers have brought Lawfare down again). It seems Wittes is nostalgic for the time when newspapers and the government had such a cozy relationship the NYT could lie us into catastrophic war in the service of the government.

I confess that I’m troubled by the power dynamics at work—for reasons that I’m sure will not endear me to my Twitter critics: I believe in institutional media. I believe in editors. And while I also deeply believe in the proliferation of voices that new media has enabled, I don’t like it that Greenwald, Gellman, and Poitras have such enormous leverage against big media organizations which I expect to make responsible publishing decisions. Put simply, I am uncomfortable with the unaccountable power that this arrangement gives people like Poitras over organizations like the New York Times.