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How to Get the Government to Ease Up: Involve Scott Shane

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This is fairly extraordinary. BuzzFeed reports that in an effort to alleviate some of the pressure from the UK it is bringing in the NYT — but just one reporter from the NYT — to report on the Snowden stories.

“In a climate of intense pressure from the UK government, The Guardian decided to bring in a US partner to work on the GCHQ documents provided by Edward Snowden,” Guardian spokeswoman Jennifer Lindenauer said in an email. “We are continuing to work in partnership with the NYT and others to report these stories.”

That reporter is not James Risen — who of course broke the original NSA story with Eric Lichtblau. It is not Charlie Savage — who had an important story based on the Snowden leaks already.

It is Scott Shane.

The Times’s Charlie Savage and other reporters have chased the NSA story aggressively, despite Snowden’s choice to go to fillmmaker Laura Poitras, theGuardian’s Glenn Greenwald, and Barton Gellman, who has written about the documents for the Washington Post. Snowden said he did not go to the Timesbecause the paper bowed to Bush Administration demands to delay a story on warrantless wiretapping in the interest of national security; he was afraid, he said, the paper would do the same with his revelations.

Now, Times reporter Scott Shane is at work on a series of stories expected to be published next month jointly with the Guardian, a source familiar with the plans said. The source said the internal arrangement has also been the cause of some tension in the newsroom, as other national security reporters working on the NSA story — Savage and James Risen, among others — are not centrally involved in stories based on the Guardian’s documents.

Scott Shane has an increasingly consistent ability to tell grand tales that serve the interests of The Powers that Be. And somehow his stories about extremely sensitive subjects like drones don’t get chased for leaks.

Was the alleviation of pressure tied to Scott Shane in particular, a journalist who hasn’t followed this story as closely as some of his colleagues?

Working Thread: Section 215 Chronologies

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This post consists of two things. First, a comparison of the 2009 notice and the 2011 one on the PATRIOT Act dragnet programs (as well as the one paragraph from the White Paper that largely replicates their compliance language).

Then, it includes the items noted on this Vaughn Index submitted in the ACLU suit for Section 215 information, along with other relevant known dates.

I’m working on some related posts, but needed to post this to refer back to. Read more →

Fourth Circuit Guts National Security Investigative Journalism Everywhere It Matters

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

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

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

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

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

[snip]

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

[snip]

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

[snip]

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

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

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

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

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

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

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

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

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

The first paragraph Kurtzberg cites ends,

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

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

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

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

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

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

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

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

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

Negative Manning Decision and the Future of Investigative Journalism

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imagesLittle more than few hours ago, a critical ruling was handed down by Judge Denise Lind in the Bradley Manning UCMJ prosecution ongoing at Fort Meade. The decision was on based on this motion by the defense seeking dismissal of the “Aiding the Enemy” charge, among others in the prosecution.

To make a long, even if sadly predictable, story short, the motion was denied by Judge Lind and the charge will proceed to determination on the merits. This is, to be sure, a nod to the prosecution (which is actually the standard in such motions for directed verdicts during trials; that is the facts are taken in the light most favorable to the non-moving party, the government). It is also, obviously, a blow to the defense, although undoubtedly an expected one for defense attorney David Coombs. There is a very outside chance of a silver lining I will discuss below.

Julie Tate at the Washington Post sets the table:

The motion to dismiss the charge was filed July 4 by Manning’s civilian defense attorney. He argued that the government had failed to show that Manning “had ‘actual knowledge’ that by giving information to WikiLeaks, he was giving information to an enemy of the United States.” He said the government did introduce evidence “which might establish that PFC Manning ‘inadvertently, accidentally, or negligently’ gave intelligence to the enemy,” but that this was not enough to prove the most serious charge against him, known as an Article 104 offense.

On two separate occasions, Lind, an Army colonel, had questioned military prosecutors about whether they would be pursuing the charge if the information had been leaked directly to The Washington Post or the New York Times. Each time, the prosecution said it would. That troubles advocates for whistleblowers, who fear that the leaking of national defense information that appears online, as it inevitably does, can be construed as assisting the enemy.

If convicted of aiding the enemy, Manning, an intelligence analyst who served in Iraq, could face life in prison.

That describes the motion and the stakes as to Manning. Julie’s article also gives more particulars on the denial this morning, and is worth a read. For a tick tock, please see the continuously good coverage by Kevin Gosztola of Firedoglake.

But as enormous as the stakes are for Bradley Manning, the enterprise of investigative journalism is also on trial, even if in an indirect manner.

Yet another journalist who has tirelessly, and superbly, covered the Manning prosecution, Alexis O’Brien, has written at the Daily Beast, the stakes for investigative journalism are also life and/or death in the face of the security/surveillance state. Citing the in court, and on the trial record, compelling testimony of Professor Yochai Benkler of Harvard Law School, Alexis related:

In a historic elocution in court last week, Prof. Yochai Benkler, co-director of the Berkman Center for Internet and Society at Harvard Law School, told Lind that “the cost of finding Pfc. Manning guilty of aiding the enemy would impose” too great a burden on the “willingness of people of good conscience but not infinite courage to come forward,” and “would severely undermine the way in which leak-based investigative journalism has worked in the tradition of [the] free press in the United States.”

“[I]f handing materials over to an organization that can be read by anyone with an internet connection, means that you are handing [it] over to the enemy—that essentially means that any leak to a media organization that can be read by any enemy anywhere in the world, becomes automatically aiding the enemy,” said Benkler. “[T]hat can’t possibly be the claim,” he added.

Benkler testified that WikiLeaks was a new mode of digital journalism that fit into a distributed model of emergent newsgathering and dissemination in the Internet age, what he termed the “networked Fourth Estate.” When asked by the prosecution if “mass document leaking is somewhat inconsistent with journalism,” Benkler responded that analysis of large data sets like the Iraq War Logs provides insight not found in one or two documents containing a “smoking gun.” The Iraq War Logs, he said, provided an alternative, independent count of casualties “based on formal documents that allowed for an analysis that was uncorrelated with the analysis that already came with an understanding of its political consequences.”

Those really are the stakes in the, now, not all that new age of digital journalism. When the prosecutors in the Manning trial, upon direct questioning by Judge Lind as to whether they would still prosecute Manning if his leaks had been delivered straight to the New York Times or Washington Post, it had to be a wake up call for traditional media. Or so you would think. But, really, the outrage has been far greater over the James Rosen/Fox subpoena that could, and arguably should, be considered relative peanuts.

But, Yochai Benkler is right as to the import of the consideration as to Wikileaks in the Manning case.

In closing, the one slim and thin ray of limited hope from today’s ruling by Denise Lind: If I were Lind and cared at all about the ultimate verdict on Pvt. Bradley Manning, I too would have made this ruling. Why, you ask? Well, because a dismissal on the motion would have been the equivalent of a directed verdict on the law and would be far easier to overturn on appeal than a decision on the merits that the government has not met its burden of proof. Is this possible; sure, it certainly is. Is this likely; no, I would not make any substantial bets on it.

The Section 215 Dragnet Started as Abusive Exigent Letter Practice Wound Down

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Screen shot 2013-06-11 at 8.17.13 PMJulian Sanchez (who, if you’re not already following, you should, @normative) just made an important observation about the Section 215 collection that collects metadata on all phone calls every day.

Carriers keep call detail records for years. No earthly reason to demand DAILY updates just to preserve.

Thunk. The penny dropped.

In theory, no, there’s no reason to demand daily updates from the telecoms. In fact, in theory, you could always just ask the telecoms to conduct the kind of data analysis that is now being done by NSA.

But there’s a very good reason why they’re not doing it that way.

They tried. It was badly abused.

And they started moving away from that approach in March 2006, precisely when we know the Section 215 program started.

Most of what we know about the exigent letters program comes from a report DOJ’s Inspector General did in March 2007 [ed 6/16: oops–all this time I had the least damning report linked. read this one]  (my posts are here, here, here, here, here, here, here). But the short version is that the NY FBI office set up an office to have representatives of the three major telecom companies come in and directly access their data with FBI Agents looking over their back. As such, it’s probably similar to what PRISM accomplishes for internet providers (except that an NSA employee rather than a telecom employee does the search), and presumably akin to whatever NSA does with the Section 215 dragnet information (which, after all, replicates the telecom databases perfectly).

The problems — that that we know about from the unclassified report (there are secret and TS/SCI versions which probably have bigger horrors) — include:

  • FBI General Counsel had no apparent knowledge of 17% of the searches
  • Thousands of searches never got recorded
  • FBI lied to the telecoms about how urgent the information was to get the information
  • FBI did an unknown number of sneak peeks into the data to see if there was something worth getting formally

Altogether, the unclassified IG Report described 26 abuses that should have been reported to then (and once again, since Chuck Hagel became Defense Secretary) inoperable Intelligence Oversight Board.

That includes the tracking of journalist call records in at least three cases (one of which I suspect is James Risen).

In short, it violated many legal principles. And that’s just the stuff that actually got recorded and showed up in an unclassified report.

The Executive spent years trying to clean up the legal mess, with four OLC opinions between November 8, 2008 and January 8, 2010 making one after another argument to justify the mess.

And just as it became clear what a godforsaken mess all this was in March 2006, they started using Section 215 to collect all call records.

The effectively created the same databases that had been abused when the FBI had telecom employees doing the work, to have NSA or FBI do the very same work as well.

In short, the reason we don’t do what Sanchez is absolutely right we should do — ask the telecoms for information as we need it — is it’s not easy enough.

What I look forward to learning, though, is how having government employees do the work that telecom employees — who at least were bound by ECPA — avoids the same kind of abusive fishing expeditions.

Update: Here’s a description I wrote to summarize this 3 years ago.

This IG Report was the third DOJ’s Inspector General, Glenn Fine, has done on the FBI’s use of National Security Letters and “exigent letters,” though this is the first to focus almost exclusively on exigent letters. In 2003, the FBI installed representatives of AT&T and (later) Verizon and MCI onsite, with computers hooked up to their respective companies’ databases. Rather than using a subpoena or a National Security Letter to get phone records from them (both of which would have required a higher level of review), the FBI basically gave them a boilerplate letters saying it was an emergency (thus the “exigent”) and could they please give the FBI the phone data; the FBI promised grand jury subpoenas to follow. Only, in many cases, these weren’t emergencies, they never sent the grand jury subpoenas, and many weren’t even associated with investigations into international terrorism. In other words, FBI massively abused this system to get phone data without necessary oversight. Fine has been pressing FBI to either establish some legal basis for getting this data or purging it from FBI databases for three years, and they have done that with some, but not all, of the data collected. But the FBI has tried about three different ways to bring this practice into conformity with legal guidelines, all unpersuasive to Fine. The OLC opinion is the most recent of these efforts.

Also, here’s a timeline.

Section 215: The White House’s Bullshit Talking Points

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Here’s what the White House has offered as talking points to defend collecting (DiFi has confirmed) all the call data from all Americans since 2006. Interspersed is my commentary.

The article discusses what purports to be an order issued by the Foreign Intelligence Surveillance Court under a provision of the Foreign Intelligence Surveillance Act that authorizes the production of business records. Orders of the FISA Court are classified.

As they’ve done with drone strikes and, especially, WikiLeaks cables before, the Administration refuses to confirm that this is, in fact, what several members of Congress have made it clear it is: an authentic FISA Order that (as Dianne Feinstein revealed) is just the quarterly renewal of a program that goes back to the PATRIOT Act renewal in March 2006.

In other words, with its “talking points,” the Administration is recommitting to keeping this program legally secret, even though it’s not secret.

Everything that say after they set up that information asymmetry should be regarded with the knowledge that the White House refuses to permit you to check its claims.

The talking points go on.

On its face, the order reprinted in the article does not allow the Government to listen in on anyone’s telephone calls. The information acquired does not include the content of any communications or the name of any subscriber. It relates exclusively to metadata, such as a telephone number or the length of a call.

Here, the White House does two things. With its “exclusively metadata” comment, it tries to minimize how much metadata really provides. Here’s how Shane Harris, in a superb explainer, describes what metadata can really provide.

What can you learn with metadata but no content?

A lot. In fact, telephone metadata can be more useful than the words spoken on the phone call. Starting with just one target’s phone number, analysts construct a social network. They can see who the target talks to most often. They can discern if he’s trying to obscure who he knows in the way he makes a call; the target calls one number, say, hangs up, and then within second someone calls the target from a different number. With metadata, you can also determine someone’s location, both through physical landlines or, more often, by collecting cell phone tower data to locate and track him. Metadata is also useful for trying to track suspects that use multiple phones or disposable phones. For more on how instructive metadata can be, read this.

Note the White House fails to mention the forms of some metadata, such as geolocation, that are particularly invasive.

But the other thing this White House bullshit talking point does is precisely the same thing the Bush White House did when, in 2005 after James Risen and Eric Lichtblau exposed the illegal wiretap program, it dubbed a subpart of the program the Terrorist Surveillance Program and talked about how innocuous it was taken in solitary. The White House is segregating one part of the government’s interdependent surveillance system and preening about how harmless that isolated part is in isolation.

What the White House doesn’t mention is how the government uses this data, among other ways, to identify possible terrorists who they can conduct more investigation of, including accessing their content using this data mining to establish probable cause.

What the White House is trying to hide, in other words, is that this collection is part of a massive collection program that uses algorithms and other data analysis to invent people to investigate as terrorists.

And then the bullshit White House talking points contradict themselves.

Information of the sort described in the Guardian article has been a critical tool in protecting the nation from terrorist threats to the United States, as it allows counterterrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities, particularly people located inside the United States.

Wait, what? Just one talking point ago, the White House told us that, “The information acquired does not include the content of any communications or the name of any subscriber.” But here we are, a mere talking point later, and the White House is claiming that it is used to discover whether known terrorists are in contact with other persons? Uh, so it does involve the known identities of both existing suspects and those gleaned from this massive collection of data, huh?

But don’t worry. Because a court has rubber stamped this.

As we have publicly stated before, all three branches of government are involved in reviewing and authorizing intelligence collection under the Foreign Intelligence Surveillance Act. Congress passed that act and is regularly and fully briefed on how it is used, and the Foreign Intelligence Surveillance Court authorizes such collection.

How does the separation of powers work again? Congress passes the law, the Executive enforces the law, and Courts review the law?

Only, in its bold claim that all three branches of government support this, the Court’s role is to “authorize such collection.” There’s a reason for that word, authorize. The only thing the courts are permitted to review are whether the government has provided,

(A) a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain to—
(i) a foreign power or an agent of a foreign power;

(ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or

(iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation; and

(B) an enumeration of the minimization procedures adopted by the Attorney General under subsection (g) that are applicable to the retention and dissemination by the Federal Bureau of Investigation of any tangible things to be made available to the Federal Bureau of Investigation based on the order requested in such application.

That is, the government just has to make a “reasonable” argument that this stuff is “relevant” to an investigation geared toward protecting against international terror or foreign clandestine activities. And if they can point to any number of foreign types (a foreign power, a suspected agent of a foreign power, or someone in contact with a suspected agent of a foreign power), the judge is instructed to presume it is related even if that seems like a stretch.

This is not a robust review of the claims the government is making. On the contrary, it is designed not to be a robust review of those claims.

Which brings us to Congress, that other branch the White House touts. It is utterly and embarrassingly true that they have repeatedly bought off on this, even if James Sensenbrenner, among others, is suckering journalists claiming that he didn’t. Indeed, oversight committees shot down efforts to limit Section 215 orders to people who actually had a tie to a suspected terrorist or foreign spy in 2006, 2009, and 2011. Such language was shot down each time. So, too, were efforts in 2011 and 2012 to reveal what was really going on in Section 215 collection; oversight committees shot that down too.

So here, in a rarity for national security overreach, the White House is absolutely right. Congress repeatedly bought off on this program, including its unbelievably broad standard for “relevance.”

Except … except … when Ron Wyden tried to get the government to tell him how many Americans’ records had been reviewed (by using this front-end collection to identify the back-end collection) the Inspectors General in question professed to be helpless to do that (later hints suggested they had done that study, but refused to share it with the Intelligence Committees).

So while it is true that Congress, with a few exceptions, have been completely complicit in this, it is also true that the Executive Branch has withheld the information Congress needs to understand what is happening with US person data.

I wonder why?

Never you worry, though, because it’s all constitutional.

There is a robust legal regime in place governing all activities conducted pursuant to the Foreign Intelligence Surveillance Act. That regime has been briefed to and approved by the Court.

Activities authorized under the Act are subject to strict controls and procedures under oversight of the Department of Justice, the Office of the Director of National Intelligence and the FISA Court, to ensure that they comply with the Constitution and laws of the United States and appropriately protect privacy and civil liberties.

Don’t worry, the White House concludes. The legal review designed not to be robust is robust.

And to be fair, the FISA Court has, on at least one occasion, told the Administration they were violating the Fourth Amendment. Though apparently DOJ and ODNI thought this Fourth Amendment violative collection was kosher, as they had to be slapped down by the court, so I’m not sure what purpose their purported oversight serves.

But as I pointed out this morning, there’s a flaw to this argument that is grounded in the Administration’s refusal to admit this is a real FISA Court order.

Standing.

The government, over and over and over and over, assures us this is all very Constitutional. Even while the government, over and over and over and over, goes to great lengths to ensure citizens don’t learn how they’re being surveilled, which would (in addition to pissing them off) give them the ability to sue.

Until the Americans who have been surveilled are permitted to challenge this in a court — precisely what the government has gone to great lengths to prevent — White House claims to constitutionality ring hollow.

The government doesn’t have the confidence to let us test these claims in court. That ought to tell you what they really think about its constitutionality.

Michael Hayden, Troll Extraordinaire

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

But here’s my favorite part:

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

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

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

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

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

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

What “Not Specifically Targeted” Means for Abdulrahman al-Awlaki

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A number of people are discussing the killing of Abdulraham al-Awlaki as if the government has claimed he was accidentally targeted.

That’s not what the government has officially said. In his letter declassifying American drone deaths the other day, Eric Holder said Abdulrahman, Samir Khan, and Jude Kenan Mohammad were “not specifically targeted.” Which is quite different from saying it was an accident.

Administration officials were quick to offer an explanation about one of these deaths, that of Mohammad: he died in a signature strike, officials said anonymously, but a former consultant also suggests he was on the kill list.

American officials said on Wednesday that Mr. Mohammad had been killed with about 12 other insurgents in what the C.I.A. calls a “signature strike,” an attack based on patterns of activity, such as men toting arms in an area controlled by extremist groups. Such strikes have prompted the sharpest divisions inside the Obama administration, with some officials questioning whether killing unidentified fighters is legally justified or worth the local backlash.

[snip]

While Mr. Mohammad was not directly targeted, he had come under increasing scrutiny by American counterterrorism officials, who said he was involved in recruiting militants for Al Qaeda and the Pakistani Taliban, as well as making videos on YouTube to incite violence against the United States.

“He had risen to the top of the U.S. deck,” said Seth G. Jones, a senior political scientist at the RAND Corporation and former adviser to the military’s Special Operations Command. Mr. Jones said that while in Pakistan, Mr. Mohammad had made contact with five young Virginia men who disappeared from their homes around Thanksgiving in 2009 and turned up seeking to join militant groups. Instead they were arrested and remain in Pakistani custody.

But officials have been a lot more squirmy about Abdulrahman’s death.

At a pre-speech briefing yesterday, a senior Administration official was asked about Abdulrahman specifically. Between an unbelievable number of “ums,” he first tried to generalize about all three “not specifically targeted” individuals and then provided two possibilities: presence at “al Qaeda and associated facilities” or civilian accidents (neither of which incorporates the explanations provided the NYT for Mohammad’s death).

I don’t want to get into the details of each of those instances.  What I will say generally is that there are times when there are individuals who are present at al Qaeda and associated forces facilities, and in that regard they are subject to the lethal action that we take.  There are other instances when there are tragic cases of civilian casualties and people that the United States does not in any way intend to target — because, again, as in any war, there are tragic consequences that come with the decision to use force, including civilian casualties.

The first of those — presence at an al Qaeda “facility” — is closer to what the Administration has said about Abdulrahman’s death in the past, when they have claimed they were targeting Ibrahim al-Banna. Though AQAP reported that he was never at the site.

But here’s what a former Obama official told Jeremy Scahill about Abdulrahman’s killing.

A former senior official in the Obama administration told me that after Abdulrahman’s killing, the president was “surprised and upset and wanted an explanation.” The former official, who worked on the targeted killing program, said that according to intelligence and Special Operations officials, the target of the strike was al-Banna, the AQAP propagandist. “We had no idea the kid was there. We were told al-Banna was alone,” the former official told me. Once it became clear that the teenager had been killed, he added, military and intelligence officials asserted, “It was a mistake, a bad mistake.” However, John Brennan, at the time President Obama’s senior adviser on counterterrorism and homeland security, “suspected that the kid had been killed intentionally and ordered a review. I don’t know what happened with the review.”

In other words, it sounds like some in the Administration suspect that someone within the targeting chain of command may have invented the Ibrahim al-Banna presence as a way to get at Awlaki’s son. (Note, elsewhere Scahill suggested that the Awlaki family suspects a teacher may have been trying to recruit Abdulrahman to help hunt down his father, which might give those recruiters reason to want to silence him after they did kill Awlaki.)

In a piece on the drone program yesterday, Daniel Klaidman revealed that some people within the Administration were trying to keep mention of Abdulrahman and the two others out of Holder’s letter from the other day.

Officials tell The Daily Beast the original plan was to name only Anwar al-Awlaki, while referring to the other three anonymously. That changed when some officials at the Department of Justice argued that withholding the names would defeat the purpose of Obama’s much-touted call for more openness.

If Abdulrahman was killed deliberately, via some kind of deceit, I can understand why the Administration was reluctant to make its role in his death official. John Brennan’s report about it is presumably out there somewhere (though as a White House report, it would be harder to FOIA than a CIA IG Report).

Clearly, the Administration has made some effort to gain a greater understanding of how Abdulrahman was killed than the hemming and hawing official admitted to yesterday. Which suggests “not specifically targeted” might not even rule out “targeted in deceitful fashion.”

First They Came for James Risen …

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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