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Since Spying to Benefit Monsanto Is Not Industrial Espionage, It’s Okay

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One of the examples I often raise to show how our government likely uses SIGINT to advantage specific businesses is the way the government helps Monsanto budge into markets uninterested in its products.

One WikiLeaks cable showed the US embassy in Paris planned a “military-style trade war” to benefit Monsanto.

I pointed out that WikiLeaks had revealed that our diplomats had proposed a “military-style trade war” to force Europeans to adopt Monsanto’s controversial products.

The US embassy in Paris advised Washington to start a military-style trade war against any European Union country which opposed genetically modified (GM) crops, newly released WikiLeaks cables show.

In response to moves by France to ban a Monsanto GM corn variety in late 2007, the ambassador, Craig Stapleton, a friend and business partner of former US president George Bush, asked Washington to penalise the EU and particularly countries which did not support the use of GM crops.

“Country team Paris recommends that we calibrate a target retaliation list that causes some pain across the EU since this is a collective responsibility, but that also focuses in part on the worst culprits.

“The list should be measured rather than vicious and must be sustainable over the long term, since we should not expect an early victory. Moving to retaliation will make clear that the current path has real costs to EU interests and could help strengthen European pro-biotech voices,” said Stapleton, who with Bush co-owned the St Louis-based Texas Rangers baseball team in the 1990s.

I have suggested these diplomatic warriors for Monsanto likely relied on intelligence collected by the NSA.

Which is apparently what this 2004 document — described in Laura Poitras and James Risen’s latest describing spying on American law firms — seems to suggest.

Other documents obtained from Mr. Snowden reveal that the N.S.A. shares reports from its surveillance widely among civilian agencies. A 2004 N.S.A. document, for example, describes how the agency’s intelligence gathering was critical to the Agriculture Department in international trade negotiations.

“The U.S.D.A. is involved in trade operations to protect and secure a large segment of the U.S. economy,” that document states. Top agency officials “often rely on SIGINT” — short for the signals intelligence that the N.S.A. eavesdropping collects — “to support their negotiations.”

If they’re using SIGINT for “negotiations,” then they’d surely use it for “military-style” campaigns to “target retaliation” against countries trying to resist a product, wouldn’t they?

Friday News Dump Not Dead Yet: Stephen Kim Guilty Plea

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Just when Kevin Drum declared the “Friday News Dump” dead, comes proof news of said death was greatly exaggerated.

As Josh Gerstein and others have reported, the plea will be entered this afternoon:

Under the terms of the agreement, Kim will plead guilty to a single felony count of disclosing classified information to Rosen in June 2009, and serve a 13-month prison sentence. Judge Colleen Kollar-Kotelly would have to accept the sentence or reject it outright?, in which case Kim could withdraw his plea. Kim would also be on supervised release for a year, but would pay no fine.

Judge Kollar-Kotelly is expected to accept the guilty plea at today’s hearing, but will not impose a sentence until sometime later.

Well, that is kind of a big deal dropped out of nowhere on a Friday afternoon.

As you may recall, this is the infamous case where the Obama/Holder DOJ was caught classifying a journalist, James Rosen of Fox News, as an “aider and abettor” of espionage. As the Washington Post reported, the scurrilous allegation was clear as day in a formal warrant application filed as an official court document:

“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.”

Of course, the fully justifiable uproar over the Rosen treatment by DOJ eventually led to “new guidelines”, being issued by the DOJ. The new guidelines are certainly a half step in the right direction, but wholly unsatisfactory for the breadth and scope of the current Administration’s attack on the American free press.

But now the case undergirding the discussion in the Stephen Kim case will be shut down, and the questions that could play out in an actual trial quashed. All nice and tidy!

Frankly, I have mixed emotions about the reported Kim plea itself. It is, all in all, a pretty good deal for Kim and his attorney, the great Abbe Lowell. The case is done, bad precedent does not get etched into a jury verdict and appeal, and the nightmare has an end in sight for the defendant, Stephen Kim. All things considered, given the seriousness of the espionage and false statement charges in the indictment, 13 months is a good outcome. And it is not a horrible sentence to have as a yardstick for other leakers (were I Ed Snowden and Ben Wizner, I would like this result). By the same token, the damage done by the ridiculous antics and conduct of the DOJ in getting to this point is palpable. It will leave a stain that won’t, and shouldn’t, go away.

That still leaves the matter of Jeffrey Sterling, and reporter James Risen, though. Whither DOJ on that? And it is an important question since the much ballyhooed and vaunted “New Media Policies” announced by DOJ left wide open the ability to force Risen (and others that may some day be similarly situated) to testify about his sources of face jail for contempt.

Is Google Sharing 9,500 Users’ Data, or 65,000?

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Google just released its shiny new transparency numbers reflecting DOJ’s new transparency rules.

While they tell us some interesting things, the numbers show how many questions the transparency system raises. I’ve raised the questions below, linked to my discussion by bolded number.

[NSA presentation, PRISM collection dates, via Washington Post]

Google is using option 1 (perhaps because they had already reported their NSL numbers), in which they break out NSLs separately from FISA orders, but must report in bands of 1000.

Note that Google starts this timeline in 2009, whereas their criminal process numbers pertaining to user accounts only start in 2011. Either because they had these FISA numbers ready at hand, or because they made the effort to go back and get them (whereas they haven’t done the same for pre-2011 criminal process numbers), they’re giving us more history on their FISA orders than they did on criminal process. They probably did this to show the entire period during which they’ve been involved in PRISM, which started on January 14, 2009.

Google gets relatively few non-content requests, and the number — which could be zero! — has not risen appreciably since they got involved in PRISM.(1) (I suspect we’re going to see fairly high non-content requests from Microsoft, because they pushed to break these two categories out).

Read more →

In 2009, NSA Said It Had a “Present Example” of Abuse Similar to Project Minaret

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While we’re discussing new hints that the NSA actually has targeted Americans in creepy old-style spying, I want to look closely at a training program that ODNI describes as dating to August 2009. The I Con description reads, in part,

August 2009 NSA Cryptological School Course on Legal, Compliance, and Minimization Procedures. These course materials, designed for NSA personnel provided access to bulk telephony and electronic communications metadata acquired pursuant to Section 501 of FISA and Section 402 of FISA respectively

There should be some tie to the PATRIOT-authorized phone and Internet dragnets, otherwise this document wouldn’t be responsive to the ACLU and EFF FOIAs it was released in response to. But I actually suspect they may have grabbed the wrong August 2009 training program from their “heap of trouble in 2009” file, because there’s not a hint of PATRIOT authorities in the course. In fact, I think it’s possible that the training instead responded to the violations reported on by Risen and Lichtblau in April 2009,

The intelligence officials said the problems had grown out of changes enacted by Congress last July in the law that regulates the government’s wiretapping powers, and the challenges posed by enacting a new framework for collecting intelligence on terrorism and spying suspects.

[snip]

But the issue appears focused in part on technical problems in the N.S.A.’s ability at times to distinguish between communications inside the United States and those overseas as it uses its access to American telecommunications companies’ fiber-optic lines and its own spy satellites to intercept millions of calls and e-mail messages.

[snip]

As part of that investigation, a senior F.B.I. agent recently came forward with what the inspector general’s office described as accusations of “significant misconduct” in the surveillance program, people with knowledge of the investigation said. Those accusations are said to involve whether the N.S.A. made Americans targets in eavesdropping operations based on insufficient evidence tying them to terrorism.

And in one previously undisclosed episode, the N.S.A. tried to wiretap a member of Congress without a warrant, an intelligence official with direct knowledge of the matter said.

The training covers things like the FISA Amendments Act statutes limiting wiretapping of Americans overseas (sections 703, 704, and 705). It seems to talk about necessary limits on upstream collection. It discusses how to narrow search terms on already collected data to avoid collecting innocent US person data. It also appears to have several heavily redacted sections that talk about wiretapping protected persons like members of Congress.

All that said, I’m particularly interested in the training for another reason (though the violations reported by Risen and Lichtblau may provide helpful background). In several sections, the training seems almost plaintive in its efforts to convince analysts to follow the rules, as on page 83 where it explains the best way to protect the NSA is to play by the rules.

The best way to protect ourselves and our SIGINT is to play by the rules.

No matter how inconvenient the rules may seem, if we fail to adhere to them, the next set of rules will be far stricter. (82)

More interesting still are two series of slides that bookend what we see of the presentation save a last mostly-redacted section (see pages 6-8 and 114-116, excerpted above; click to enlarge). After introducing Katz v. US, a Supreme Court case that recognized the expectation of privacy in phone conversations, the presentation reviewed 3 past wiretapping scandals.

Operation Shamrock: 1945-1975

  • NSA received copies of international telegrams to, from, and transiting the U.S.

Narcotics Collection: 1970-1973

  • Obtained Communications that Law Enforcement could not acquire under Title III

Project Minaret: 1967-1973 (The Watch List)

  • Names of U.S. persons used systematically as basis for selecting messages

Then almost a hundred pages later, the presentation includes 3 slides that match those earlier abuses with what it calls present examples (in the image above I’ve matched the original slide to the follow-up). The first — the one matching Operation Shamrock — is almost entirely redacted, showing only that it involves “targeting of …” (presumably referring to email or phone calls).

Telegrams

The second — the one matching illegal Narcotics wiretaps — describes a “Restaurant in Texas to identify narcotics smugglers.”

TX Restaurant

The third — the one matching Project Minaret — admits to “unauthorized targeting of suspected terrorists in U.S.”

Unauthorized suspected terrorists

 

These comparisons, it seems, aimed to match historic abuses to “present” (or recent) practices, warning that if NSA analysts didn’t clean up their act something like a Church Committee and more stringent rules would be imposed.

I have no idea what NSA meant when it called these three things “Present Examples” (though I’m sure the lawyers for the restaurant in Texas would be interested in this news). It’s quite possible the first and third refer to practices under Bush’s illegal wiretap program, which we know involved domestic wiretapping of the phone and email of people alleged to be terrorist suspects. In other words, these abuses may refer to pre-2007 activities rather than the violations Risen and Lichtblau reported in early 2009.

That said, NSA’s OGC seems to have believed — or at least fear-mongered — that the “present” abuses were similar in kind to the famous abuses from the 1970s.

NSA Denies Their Existing Domestic Cyberdefensive Efforts, Again

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James Risen and Laura Poitras have teamed up to analyze a 4-year plan the NSA wrote in 2012, in the wake of being told its collection of some US person content in the US was illegal. I’ll discuss the document itself in more depth later. But for the moment I want to look at the denials anonymous senior intelligence officials (SIOs) gave Risen and Poitras about their domestic cyberdefensive efforts.

As a reminder, since before 2008, the government has been collecting bulk Internet data from switches located in the US by searching on selectors in the content. Some of that collection searches on identifiers of people (for example, searching for people sharing Anwar al-Awlaki’s email in the body of a message). But the collection also searches on other identifiers not tied to people. This collection almost certainly includes code, in an effort to find malware and other signs of cyberattacks.

We know that’s true, in part, because the Leahy-Sensenbrenner bill not only restricts that bulk domestic collection to actually targeted people, but also because it limits such collection only to terrorism and counterproliferation, thereby silently prohibiting its use for cybersecurity. The bill gives NSA 6 months to stop doing these two things — collecting non-person selectors and doing so for cybersecurity — so it’s clear such collection is currently going on.

So in 2012, just months after John Bates told NSA that when it collected domestic communications using such searches, it was violating the Constitution (the NSA contemplated appealing that decision), the NSA said (among other things),

The interpretation and guidelines for applying our authorities, and in some cases the authorities themselves, have not kept pace with the complexity of the technology and target environments, or the operational expectations levied on NSA’s mission.

The document then laid out a plan to expand its involvement in cybersecurity, citing such goals as,

Integrate the SIGINT system into a national network of sensors which interactively sense, respond, and alert one another at machine speed

Cyberdefense and offense are not the only goals mapped out in this document. Much of it is geared towards cryptanalysis, which is crucial for many targets. But it only mentions “non-state actors” once (and does not mention terrorists specifically at all) amid a much heavier focus on cyberattacks and after a description of power moving from West to East (that is, to China).

Which is why the SIO denials to Risen and Poitras ring so hollow.

Read more →

The CIA (&etc) Money Orders

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NSL v 215Both the NYT (Charlie Savage and Mark Mazzetti) and WSJ (Siobhan Gorman, Devlin Barrett, and Jennifer Valentine-Devries) tell the same story today: the CIA is collecting bulk data on international money transfers. Given that someone has decided to deal this story to two papers at the same time, and given the number of times the Administration has pre-leaked stories to Gorman of late to increasingly spectacular effect (even making most national security journalists forget the very existence of GCHQ’s notoriously voracious taps at cable landings just off Europe) I assume this may be some kind of limited hangout.

It’s not that I doubt in the least that CIA gets and uses financial data. I don’t even doubt the government uses PATRIOT authorities to do so (as both stories assert).

But it would be unlikely that this data comes in through an FBI order and does not also get shared with Treasury and National Counterterrorism Center (if not NSA), both of which would have better infrastructure for analyzing it, and both of which we know to use such data for their known intelligence products. Indeed, in response to a question from both papers about this practice Western Union points to Treasury programs.

 A spokeswoman for one large company that handles money transfers abroad, Western Union, did not directly address a question about whether it had been ordered to turn over records in bulk, but said that the company complies with legal requirements to provide information.

“We collect consumer information to comply with the Bank Secrecy Act and other laws,” said the spokeswoman, Luella Chavez D’Angelo. “In doing so, we also protect our consumers’ privacy.”

And at WSJ a consultant to the industry points even more firmly towards Treasury.

Money-transfer companies are “highly, highly aware of their obligations under the Patriot Act,” said Robert Pargac, a director in global investigations and compliance at Navigant Consulting Inc. who has worked at several such companies. Western Union said last month it would be spending about 4% of its revenue in 2014 on compliance with rules under the Patriot Act, the Treasury Department’s Office of Foreign Assets Control and other anti-money-laundering and terrorist-financing requirements.

We know that, at least until 2008, the FBI maintained that it could share materials that came in through Section 215 with any agency so long as that agency asserted it had a need for the information, and there’s little reason to believe the FBI has changed that policy. So I would assume at least Treasury and NCTC gets this data as well. It may be all this story indicates is that — as they do with much Section 702 data — CIA gets its own access to the data. That’s a minimization story, not a collection story, because we’ve known this data was collected (as WSJ points out).

Then there’s the evidence both papers point to to show that this is a Section 215 program. Read more →

Drone Strikes on the NYT’s Claim to Have Improved

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NYT Public Editor Margaret Sullivan attempts to tell the story of why the NYT held the illegal wiretap story before the 2004 election. Amid comments from the main players, she effectively admits that the NYT only published in 2005 because James Risen’s A State of War was about to come out.

Michael V. Hayden, who was the director of the N.S.A. and later the director of the Central Intelligence Agency, told me in an interview that he argued strenuously against publication, right up until the moment when The Times decided to go ahead. His rationale: “That this effort was designed to intercept threatening communication” and to prevent another terrorist attack.

In the end, The Times published the story with a couple of guns held to its head: First, the knowledge that the information in the article was also contained in a book by Mr. Risen, “State of War,” whose publication date was bearing down like a freight train. Second, at the end, the word of a possible injunction against publishing, Mr. Risen said, provided a final push: “It was like a lightning bolt.” (Mr. Hayden said that would not have happened: “Prior restraint was never in the cards.”)

Like a game of chicken played on a high wire, it remains “the most stressful and traumatic time of my life,” Mr. Risen recalls. Although The Times later said that further reporting strengthened the story enough to justify publishing it, few doubt that Mr. Risen’s book was what took an essentially dead story and revived it in late 2005. “Jim’s book was the driving force,” Mr. Lichtblau said.

Sullivan doesn’t mention another part of the story: that shortly after the NYT accused Risen of violating their ethics policy because he did not tell the NYT his book covered topics he had reported on for the paper — not just the illegal wiretap program, but also MERLIN, the attempt to stall the Iranian nuclear program by dealing them faulty blueprints. He had apparently told them he was writing a book on George Tenet.

When that news broke in early 2006, I concluded that Risen probably used the threat of scooping the NYT, and a nondisclosure agreement, to actually get the illegal wiretap program into the paper.

Let’s assume for a moment I’m correct in understanding the NYT spokesperson to be suggesting that Risen violated those ethical guidelines by publishing this book. Here’s the scenario such an accusation seems to spell out. (Speculation alert.) Risen attempted to publish both the NSA wiretap story and the Iran nuclear bomb story in 2004. NYT editors refused both stories. Then, in 2005 Risen takes book leave (and I should say that the NYT’s book leave policy is one of the best benefits it offers its writers), misleading his editors about the content of the book. Once he returns, his editors hear rumors that the book actually features the NSA wiretap story. Only in the face of imminent publication of the book do they reconsider publishing the wiretap story. Read more →

The USAID vs SIGAR Pissing Contest

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Reuters has a riveting exclusive today in which they have been given a treasure trove of documents from which they have reported on documentation that a contractor involved in USAID highway construction in Afghanistan is employing a subcontractor who is a member of the Haqqani network:

Much of the evidence against Zadran is classified, but the cache of documents given to Reuters by U.S. officials on condition of anonymity show that he has close business ties with the Haqqani network’s leader, Sirajuddin Haqqani.

The Haqqanis, Islamist insurgents who operate on both sides of the Afghanistan-Pakistan border, are believed to have introduced suicide bombing into Afghanistan.

The links between Zadran and the insurgency include him teaming up with Saadullah Khan and Brothers Engineering and Construction Company (SKB), believed to be one of Sirajuddin Haqqani’s companies.

Together they won a $15 million contract to help build a road between the towns of Gardez and Khost in Afghanistan’s east for the U.S. Agency for International Development (USAID) in 2011.

“The owners of these companies are facilitators and commanders of the Haqqani Network,” one U.S. government memorandum says.

This problem fits into the overall work that SIGAR has been doing recently in which they comment on the lack of control and auditing on funds once they are turned over from USAID and other agencies to the Afghan government for disbursement. And huge amounts of money are involved:

The inability over many years to stop firms believed to be supporting the insurgency from winning multi-million-dollar contracts exposes the lack of control that donors have over cash once it is handed over to the Afghan government.

Those transfers make up an increasing proportion of aid. U.S. federal agencies want more than $10.7 billion for reconstruction programs in 2014, SIGAR says, and the government has promised at least half will be granted directly to Afghan institutions to spend as they see fit.

SIGAR has clearly upset a number of folks with their work on this front. Back on October 10, the Atlantic carried a hit piece against SIGAR (I owe Marcy a huge thank you for alerting me to the article) in which we are supposed to believe that USAID has built a public health system in Afghanistan that in just a few years has added 20 years to life expectancy while dropping child mortality by half. And the article would have us believe that this wonderful new system is at risk of being shut down because of SIGAR’s campaign against funds being disbursed by the Afghan government without an audit trail:

John Sopko is the U.S. government’s chief auditor for Afghanistan and a former prosecutor with years of experience on Capitol Hill. In September, Sopko’s office—the Special Inspector General for Afghanistan Reconstruction, or SIGAR—issued a report calling for the suspension of USAID’s $236 million in aid for basic health care in Afghanistan.

Why shut down such a successful program? The short answer is that SIGAR’s is a peculiar concept of caution.

Strikingly, the auditors’ report calling for the funding freeze for the health program doesn’t claim any evidence of serious fraud or waste. Instead, it raises hypothetical concerns about the Afghan government’s ability to manage aid money well, including evidence that some salaries were paid in cash, as well as the absence of double entry bookkeeping.

There is a huge problem with the underlying premise of “such a successful program”, though. It is fabricated bullshit. Here is how the hit piece frames their argument on the successes: Read more →

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.

Bill Binney Told You So

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Remember when Bill Binney said NSA was compiling dossiers of Americans, but Keith Alexander said that wasn’t true?

A former NSA official has accused the NSA’s director of deception during a speech he gave at the DefCon hacker conference on Friday when he asserted that the agency does not collect files on Americans.

William Binney, a former technical director at the NSA, said during a panel discussion that NSA Director Gen. Keith Alexander was playing a “word game” and that the NSA was indeed collecting e-mails, Twitter writings, internet searches and other data belonging to Americans and indexing it.

“Unfortunately, once the software takes in data, it will build profiles on everyone in that data,” he said. “You can simply call it up by the attributes of anyone you want and it’s in place for people to look at.”

[snip]

Binney was contradicting statements made on Friday by Alexander, who told the crowd of hackers and security professionals that his agency “absolutely” does not maintain files on Americans.

“And anybody who would tell you that we’re keeping files or dossiers on the American people,” Alexander continued, “knows that’s not true.”

The tantalizing reporting duo of Laura Poitras and James Risen (writing at NYT) report the NSA is … compiling graphs that show Americans’ connections with foreign targets, using both communications metadata and public resources like bank, insurance, Facebook, flight, voting property, and GPS information.

Since 2010, the National Security Agency has been exploiting its huge collections of data to create sophisticated graphs of some Americans’ social connections that can identify their associates, their locations at certain times, their traveling companions and other personal information, according to newly disclosed documents and interviews with officials.

[snip]

The policy shift was intended to help the agency “discover and track” connections between intelligence targets overseas and people in the United States, according to an N.S.A. memorandum from January 2011. The agency was authorized to conduct “large-scale graph analysis on very large sets of communications metadata without having to check foreignness” of every e-mail address, phone number or other identifier, the document said. Because of concerns about infringing on the privacy of American citizens, the computer analysis of such data had previously been permitted only for foreigners.

The agency can augment the communications data with material from public, commercial and other sources, including bank codes, insurance information, Facebook profiles, passenger manifests, voter registration rolls and GPS location information, as well as property records and unspecified tax data, according to the documents. They do not indicate any restrictions on the use of such “enrichment” data, and several former senior Obama administration officials said the agency drew on it for both Americans and foreigners.

It sure sounds like a dossier to me.

But then, the safe bet was always to assume Keith Alexander (and James Clapper, who also denied this) was lying.