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Marco Rubio Leaks that the Phone Dragnet Has Expanded to “A Large Number of Companies”

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Last night, Marco Rubio went on Fox News to try to fear-monger over the phone dragnet again.

He repeated the claim that the AP also idiotically parroted uncritically — that the government can only get three years of records for the culprits in the San Bernardino attack.

In the case of these individuals that conducted this attack, we cannot see any phone records for the first three years in which — you can only see them up to three years. You’ll not be able to see the full five-year picture.

Again, he’s ignoring the AT&T backbone records that cover virtually all of Syed Rizwan Farook’s 28-year life that are available, that 215 phone dragnet could never have covered Tashfeen Malik’s time in Pakistan and Saudi Arabia, and that EO 12333 collection not only would cover Malik’s time before she came to the US, but would also include Farook’s international calls going back well over 5 years.

So he’s either an idiot or he’s lying on that point.

I’m more interested in what he said before that, because he appears to have leaked a classified detail about the ongoing USA Freedom dragnet: that they’ve been issuing orders to a “large and significant number of companies” under the new dragnet.

There are large and significant number of companies that either said, we are not going to collect records at all, we’re not going to have any records if you come asking for them, or we’re only going to keep them on average of 18 months. When the intelligence community or law enforcement comes knocking and subpoenas those records, in many cases there won’t be any records because some of these companies already said they’re not going to hold these records. And the result is that we will not be able in many cases to put together the full puzzle, the full picture of some of these individuals.

Let me clear: I’m certain this fact, that the IC has been asking for records from “a large number of companies,” is classified. For a guy trying to run for President as an uber-hawk, leaking such details (especially in appearance where he calls cleared people who leak like Edward Snowden “traitors”) ought to be entirely disqualifying.

But that detail is not news to emptywheel readers. As I noted in my analysis of the Intelligence Authorization the House just passed, James Clapper would be required to do a report 30 days after the authorization passes telling Congress which “telecoms” aren’t holding your call records for 18 months.

Section 307: Requires DNI to report if telecoms aren’t hoarding your call records

This adds language doing what some versions of USA Freedom tried to requiring DNI to report on which “electronic communications service providers” aren’t hoarding your call records for at least 18 months. He will have to do a report after 30 days listing all that don’t (bizarrely, the bill doesn’t specify what size company this covers, which given the extent of ECSPs in this country could be daunting), and also report to Congress within 15 days if any of them stop hoarding your records.

That there would be so many companies included Clapper would need a list surprised me, a bit. When I analyzed the House Report on the bill, I predicted USAF would pull in anything that might be described as a “call.”

We have every reason to believe the CDR function covers all “calls,” whether telephony or Internet, unlike the existing dragnet. Thus, for better and worse, far more people will be exposed to chaining than under the existing dragnet. It will catch more potential terrorists, but also more innocent people. As a result, far more people will be sucked into the NSA’s maw, indefinitely, for exploitation under all its analytical functions. This raises the chances that an innocent person will get targeted as a false positive.

At the same time, I thought that the report’s usage of “phone company” might limit collection to the providers that had been included — AT&T, Verizon, and Sprint — plus whatever providers cell companies aren’t already using their backbone, as well as the big tech companies that by dint of being handset manufacturers, that is, “phone” companies, could be obligated to turn over messaging records — things like iMessage and Skype metadata.

Nope. According to uber-hawk who believes leakers are traitors Marco Rubio, a “large number” of companies are getting requests.

From that I assume that the IC is sending requests to the entire universe of providers laid out by Verizon Associate General Counsel Michael Woods in his testimony to SSCI in 2014:

Screen Shot 2015-12-08 at 1.17.27 AM

Woods describes Skype (as the application that carried 34% of international minutes in 2012), as well as applications like iMessage and smaller outlets of particular interest like Signal as well as conferencing apps.

So it appears the intelligence committees, because they’re morons who don’t understand technology (and ignored Woods) got themselves in a pickle, because they didn’t realize that if you want full coverage from all “phone” communication, you’re going to have to go well beyond even AT&T, Verizon, Sprint, Apple, Microsoft, and Google (all of which have compliance departments and the infrastructure to keep such records). They are going to try to obtain all the call records, from every little provider, whether or not they actually have the means with which to keep and comply with such requests. Some — Signal might be among them — simply aren’t going to keep records, which is what Rubio is complaining about.

That’s a daunting task — and I can see why Rubio, if he believes that’s what needs to happen, is flustered by it. But, of course, it has nothing to do with the end of the old gap-filled dragnet. Indeed, that daunting problem arises because the new program aspires to be more comprehensive.

In any case, I’m grateful Rubio has done us the favor of laying out precisely what gaps the IC is currently trying to fill, but hawks like Rubio will likely call him a traitor for doing so.

Only Remaining Senator Personally Targeted by Terrorist Attack Still Believes in Constitution

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The Senate just voted down cloture on the USA Freedom Act, 58-42. Even while we disagreed on the bill, I extend sincere condolences to civil liberties allies who worked hard to pass this in good faith. I know you all have worked hard in good faith to pass something viable.

Several things about the vote were predictable (in fact, I predicted them in June). Just as one example, I noted to allies that if Jeff Flake — who had a great record on civil liberties while he was still in the House — did not support the effort, it would fail. Four Senators — cosponsors Mike Lee, Ted Cruz, and Dean Heller, plus Lisa Murkowski voted for cloture; Rand Paul did not. Bill Nelson voted against cloture as well (there are reports he is claiming it was a mistake, but given how closely this bill was whipped that would be … telling).

Equally predictable was the fear-mongering. GOP Senator after GOP Senator got up and insisted if the phone dragnet ended, ISIL would attack the country. None noted, of course, that the phone dragnet had never succeeded in preventing a terrorist attack. Pat Leahy made that point but it’s one opponents of the dragnet need to make in more concerted fashion.

Then there was a piece of news that neither side — supporter or opponent — seemed to want to mention. Dianne Feinstein revealed that at first 2 of 4 providers (presumably the fourth is T-Mobile though it could even be Microsoft, given that Skype is a more important phone carrier for international traffic) had refused to keep phone records, but that they had voluntarily agreed to do so for a full two years (this is at least a 6 month extension for Verizon, though may be significantly longer for cell calls).

The most dramatic part of the debate came after everyone left, when a frustrated Pat Leahy made the case for defending the Constitution. He recalled the anthrax letter addressed to him, on September 18, 2001, that killed a postal worker who processed it (another letter killed a Tom Daschle aide see Meryl Nass’ correction). “13 years ago this week, a letter was sent to me, addressed to me. It was so deadly, with the antrax in it that one person who touched the envelope–addressed to me, that I was supposed to open–They died!” Leahy reminded that the FBI had still not caught all the culprits for the attack. (That he believes that was first reported here in 2008; I believe FBI has, in fact, caught none of the culprits.) That attack targeting him personally, Leahy noted, did not convince him he had to abrogate the Constitution. “This nation should not let our liberties to be set aside by passing fears.” Leahy said. “If we do not protect our Constitution we do not deserve to be in this body.”

Senators like Marco Rubio got up and screamed about terrorists. But unless I’m mistaken, Pat Leahy is the only one remaining in the Senate who was personally targeted by a terrorist.

Maybe we ought to highlight that point?

Updated w/additions from Leahy’s comments.

The Intelligence Committee’s “Secret” Briefings on the Boston Attack

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There are 15 members of the Senate Intelligence Committee. By my count, at least 5 of them revealed some part of what they got briefed on the Boston attack yesterday afternoon to the press.

Saxby Chambliss says an agency may not have shared one piece of evidence.

“There now appears that may have been some evidence that was obtained by one of the law enforcement agencies that did not get shared in a way that it could have been. If that turns out to be the case, then we have to determine whether or not that would have made a difference,” Chambliss said.

Though Chambliss would not get into specifics on  the information or whether or not the bombing could have been prevented, he told Channel 2 Action News that they will find out if someone dropped the ball.

“Information sharing between agencies is critical. And we created the Department of Homeland Security to supervise that. We created the National Counter Terrorism Center to be the collection point for all of this information, and we’re going to get to the bottom of whether or not somebody along the way dropped the ball on some information and did not share it in a way that it should have been shared.”

Chambliss also suggested that some of the walls that had been eliminated after 9/11 may have been unintentionally recreated.

“Post-911 we thought we had created a systems that would allow for the free flow of information between agencies,” said Senator Saxby Chambliss, a Republican from Georgia and member of the intelligence panel. “And I think there have been some stone walls .. .that have been re-created that were probably unintentional.”

Richard Burr revealed that FSB had contacted the government more than the single, January 2011 time that has been reported; it contacted us (he didn’t say what agency) at least once since October 2011.

Russian authorities alerted the US government not once but “multiple’’ times over their concerns about Tamerlan Tsarnaev — including a second time nearly a year after he was first interviewed by FBI agents in Boston — raising new questions about whether the FBI should have focused more attention on the suspected Boston Marathon bomber, according to US senators briefed on the probe Tuesday.

[snip]

In a closed briefing on Tuesday, members of the Senate Intelligence Committee learned that Russia alerted the United States about Tsarnaev in “multiple contacts’’ — including “at least once since October 2011,’’ said Richard Burr, a Republican of North Carolina, speaking with reporters afterward.

Susan Collins revealed that one agency even had problems sharing information within its own agency and repeated that magic word, “stovepipe.”

“But I’m very concerned that there still seem to be serious problems with the sharing of information, including critical investigative information,’’ she said after emerging from the closed-door committee briefing. “That is troubling to me, this many years after the attacks on our country in 2001, that we still seem to have stovepipes that prevent information from being shared effectively, not only among agencies but also with the same agency in one case.”

Russian authorities alerted the US government not once but “multiple’’ times over their concerns about Tamerlan Tsarnaev — including a second time nearly a year after he was first interviewed by FBI agents in Boston — raising new questions about whether the FBI should have focused more attention on the suspected Boston Marathon bomber, according to US senators briefed on the probe Tuesday.

The FBI has previously said it interviewed Tsarnaev in early 2011 after it was initially contacted by the Russians. After that review, the FBI has said, it determined he did not pose a threat.

In a closed briefing on Tuesday, members of the Senate Intelligence Committee learned that Russia alerted the United States about Tsarnaev in “multiple contacts’’ — including “at least once since October 2011,’’ said Richard Burr, a Republican of North Carolina, speaking with reporters afterward.

Marco Rubio shared details echoing those reported elsewhere, that the brothers had gotten both their beliefs and bomb instructions online. Dianne Feinstein — the only Democrat I found blabbing to the press — said to hold off on making judgments.

Now, none of these details are that informative. I’m interested in the multiple follow-up complaints from Russia, particularly given that other reports say FBI asked for follow-up information from Russia three different times and got nothing (was FSB sharing it with the CIA?). I’m interested in the agency that couldn’t share information within its own agency.

Other than that, I get the impression this is more of what plagues our counterterrorism efforts in the first place: a flood of information with an imperfect ability to sort it (not to mention the very distinct possibility that there were no definitive pieces of intelligence that would have alerted authorities to the brothers’ violent intent).

But I wonder, given that no one seems to take the “closed” part of “closed hearings” very seriously. Why can’t we just brief this stuff publicly, so taxpayers and citizens can learn whether the billions we’ve spent on counterterrorism have done anything more than create even more bureaucracies.

Update: This story confirms that the second request was to CIA, which referred it back to the FBI.

Meanwhile, a review of Russia’s contacts with the U.S. authorities, shows that six months after the Russians asked the FBI to review the activities of Tsarnaev’s brother, Tamerlan, Russian authorities made an identical request to the CIA.

The official, who is not authorized to comment publicly, said the CIA was aware of the FBI’s prior review—which turned up nothing improper—and referred the Russian request back to the FBI.

The CIA is prohibited from conducting intelligence operations on U.S. soil.

The FBI, which had closed its review on Tsarnaev in June 2011 after sharing its results with Russian officials, again contacted their Russian counterparts, asking if they had developed additional information on the Cambridge, Mass., man.

But the official said Russian authorities never responded.

This story notes that FSB has been accompanying the FBI as it questions the Tsarnaev parents and provides background on all the ways US-Russian relations are strained right now.

Has the Government Left Minh Quang Pham “Languishing Forever”?

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Screen shot 2013-02-13 at 3.55.43 PMJohn Brennan made two interesting comments about FBI interrogation at his hearing last week. First, in response to a Martin Heinrich question, he suggested that the Army Field Manual shouldn’t be the interrogation standard for the entire government because the FBI “has its own processes and procedures.”

HEINRICH: Thank you. Do you believe that all agencies of the United States government should be held to the interrogation standards that are laid out in the Army Field Manual as it — as currently required by Executive Order 13491? And do you support efforts to codify those requirements into law?

BRENNAN: The Army Field Manual certainly should govern the U.S. military’s detention and interrogation of individuals.

The FBI has its own processes and procedures and laws that govern its activities. So what I wanted to do is to make sure that, you know, appropriate sort of attention is paid to FBI as opposed to the military.

Then, when Brennan was very patiently explaining to Marco Rubio that his ideas about detention and interrogation are erroneous and stupid (my words), he said this about FBI interrogations.

BRENNAN: No. Again, it’s tailored to the circumstances. Sometimes an individual will be Mirandized. Sometimes they will not be Mirandized right away. Mirandizing an individual means only that the information that they give before then cannot be used in Article III court.

But, in fact, the FBI do a great job as far as eliciting information after they’re Mirandizing them, and so they can get information as part of that type of negotiation with them, let them know they can in fact languish forever, or we can in fact have a dialogue about it intelligently.

“They can languish forever”? I didn’t think the Sixth Amendment had a “languish forever” exception.

But Brennan’s apparent belief there is one got me thinking about Minh Quang Pham, whom I wrote about here.

Pham is a Vietnamese immigrant to the UK who traveled to Yemen in December 2010 and went on to help Samir Khan produce Inspire magazine. He was arrested to great fanfare last June, when his May 24 indictment was purportedly unsealed. Though his docket shows no sign of that unsealing; rather, it says the indictment was unsealed two months later. He returned to the UK in December 2011, where he was held in immigration detention. It’s unclear whether he’s still there — the Brits can hold someone in detention indefinitely and extradition to the US has been taking a lot of time of late — or whether he was moved here either in June when DOJ had a big dog and pony show over his arrest or in August when the docket says his previously unsealed indictment was unsealed. That’s the last thing that appears in Pham’s docket. I’ve asked SDNY for a status report but have not yet gotten an answer.

In any case, one of the last people with ties to the UK or US to spend time with Anwar al-Awlaki and, especially, Samir Khan is languishing … somewhere.

Only in Florida: Congressman David Rivera Funds Sham Candidate, Faces Ethics Charges, FBI Probe – Doesn’t Resign

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Congressman David Rivera, R-FL (aka “The Gangster”), still won’t resign while under FBI investigation for funding a sham candidate and facing eleven ethics charges.

Proving that Florida is the fetid swamp where political rectitude goes to decay and die a foul death, Congressman David Rivera (R-FL) has raised the bar for misdeeds in office without resigning in disgrace.

In late September, Manny Garcia and Marc Caputo of the Miami Herald documented that Rivera had secretly funded a campaign for a sham candidate in the August Democratic primary in Rivera’s Florida district:

Justin Lamar Sternad, whose failed congressional campaign became the subject of a federal grand-jury investigation, has told the FBI that U.S. Rep. David Rivera was secretly behind his run for office, The Miami Herald and El Nuevo Herald have learned.

Sternad, 35, also told authorities that his campaign manager, Ana Sol Alliegro, acted as the conduit between the campaign and Rivera, who allegedly steered unreported cash to the Democrat’s campaign, according to sources familiar with the investigation and records shared with The Herald.

Sternad said Alliegro referred to the congressman by his initials, “D.R.,” and called him by the nickname, “The Gangster.”

On October 1, Garcia and Caputo informed us that the Republican Party in Florida is preparing for two outcomes for Rivera – indictment or a loss:

Bracing for embattled U.S. Rep. David Rivera to be indicted or lose his election, Republicans have started lining up potential successors to regain the seat in 2014 if the congressman’s Democrat opponent defeats him in November.

Rivera has at least become toxic to other Republicans in Florida, but his ties to prominent Florida Republicans are very strong:

Rivera’s closest ally, U.S. Sen. Marco Rubio, has been keeping his distance from Rivera as well. The two remain friends and own a Tallahassee home together that briefly went into foreclosure in 2010 when both former state representatives ran for higher office.

Rivera no longer attends high-profile events with the senator or with presidential candidate Mitt Romney, who held an event in Rivera’s district where the congressman was the only top Republican no-show.

Yup, Rivera is so toxic politically that he can’t even show his face when his closest political ally and the Republican nominee for President are holding a rally in his own district. Even in the face of that reality, Rivera still has not resigned.

So far, even the eleven ethics charges filed against him yesterday still have not pushed him over that final hurdle into resigning:

Already facing FBI probes and a daunting reelection, U.S. Rep. David Rivera was charged Wednesday by state authorities with 11 counts of violating ethics laws for filing bogus financial disclosure forms, misusing campaign funds and concealing a $1 million consulting contract with a Miami gambling business while serving in the state Legislature.

Investigators with the Florida Commission on Ethics found that Rivera’s secret deal to work as a political consultant for the Magic City Casino — formerly the Flagler Dog Track — created a conflict of interest for the lawmaker. The ethics panel also found that the Republican broke state ethics laws by failing to fully disclose his finances from 2005 to 2009.

/snip/

Rivera signed a consulting contract with the Magic City Casino’s owners in 2006 to run a campaign to win voter approval for slot machines at Miami-Dade pari-mutuels. But Rivera had the money from the deal sent to Millennium Marketing, a company founded by his mother and godmother, records show. Rivera then received at least $132,000 back from Millennium — money that Rivera has called loans that did not have to be disclosed.

At least even Republican polls are indicating that Rivera will lose his race by about ten points, so it appears that the voters in Rivera’s district are paying attention. It will be very interesting to see how Rivera reacts once he has been voted out of office and is facing potential criminal charges. Will he turn on his former colleagues? What nuggets could he offer in return for lesser charges?

Your Obligatory Fran Fragos Townsend Leak

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Remember how the detail that UndieBomb 2.0 involved a Saudi infiltrator got out? John Brennan had a private teleconference with Richard Clarke and Fran Fragos Townsend and implied as much, which led to Clarke reporting it (and not long after, ABC confirming it with foreign sources).

At about 5:45 p.m. EDT on Monday, May 7, just before the evening newscasts, John Brennan, President Barack Obama’s top White House adviser on counter-terrorism, held a small, private teleconference to brief former counter-terrorism advisers who have become frequent commentators on TV news shows.

According to five people familiar with the call, Brennan stressed that the plot was never a threat to the U.S. public or air safety because Washington had “inside control” over it.

Brennan’s comment appears unintentionally to have helped lead to disclosure of the secret at the heart of a joint U.S.-British-Saudi undercover counter-terrorism operation.

A few minutes after Brennan’s teleconference, on ABC’s World News Tonight, Richard Clarke, former chief of counter-terrorism in the Clinton White House and a participant on the Brennan call, said the underwear bomb plot “never came close because they had insider information, insider control.”

Now, National Security Council Spokesperson Tommy Vietor, who aggressively but rather unconvincingly tried to claim that the Administration had never intended to publicly announce UndieBomb 2.0, is claiming that the Administration is obligated to hold such teleconferences because the Administration is obligated to be “transparent” about potential threats.

The Yemen plot had many intelligence and national security officials flummoxed and angered by its public airing.  Despite that, a senior administration official then briefed network counterterrorism analysts, including CNN’s Frances Townsend, about parts of the operation.

But such briefings are an “obligation” for the administration once a story like the Yemen plot is publicized, insisted National Security Council spokesman Tommy Vietor.

“The reason that we brief former counterterrorism officials is because they are extremely conscientious about working with us about what can and cannot be said or disclosed,” Vietor told Security Clearance.  “They understand that there is an obligation for the U.S. to be transparent with American people about potential threats but will work with us to protect operational equities because they’ve walked in our shoes.”

This is the Administration that appears to have just fired a guy for revealing that the bankster threat is growing while the terrorist threat is diminishing, claiming they had to hold a teleconference with TV commentators just before prime time to make sure Americans regarded a Saudi-managed plot as a real threat.

Vietor’s in trouble. Presumably on his advice, the White House was prepping a big roll out of UndieBomb 2.0 the day after this call with Townsend and Clarke. Clearly, by going ahead with the teleconference, he was trying to get maximum spin value out of the plot, after the AP had broken it. Indeed, the detail that led Clarke to learn the “plot” was really a sting–that we (or our buddies the Saudis) were in control the whole time–is precisely the same spin that Brennan’s sanctioned leaks have pushed in the Kill List and StuxNet stories.

But for a variety of reasons, it has become politically costly to admit the White House had planned to spin this. And so, Tommy Vietor keeps trying to tell new stories, hoping one will hold together.

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Lisa Murkowski Admits She Voted To Help Catholic Church Enforce a Doctrine She Ignores

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As I noted last week, every single Catholic Senator save Susan Collins who voted for the Blunt Amendment last week appears likely to have relied on the birth control their Church prohibits to limit the size of their families. Lisa Murkowski, who has just 2 kids, was among the 10 Catholics who was using her position to help the Catholic Church enforce a doctrine she herself has ignored.

And in an interview claiming she now regrets that vote, Murkowski as much as admits that’s what she did. (h/t TPM)

What Lisa Murkowski told me I already suspected. She’s a moderate. She supports abortion rights and contraception coverage. She also doesn’t line up completely with the Catholic Church when it comes to birth control. She regretted her recent vote.

[snip]

I pointed out that her support for birth control conflicts with the Catholic mandate against it.

“You know, I don’t adhere to all of the tenets of my faith.

Now, she’s still spinning her vote (and her letter opposing Obama’s rule on contraception) as one in favor of religious freedom.

She’d meant to make a statement about religious freedom, she said, but voters read it as a vote against contraception coverage for women.

But it is not “religious freedom” to craft laws to help the Church enforce mandates that almost none of its adherents–and probably few, if any, of the Catholic Senators supporting the law–abide by. It is an improper use of government to aid a religious institution.

Not to mention, rank hypocrisy.

Most Blunt Amendment Supporters Likely to Have Used Birth Control

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I confess. I’m contemplating calling all the Senators who voted for the Blunt Amendment yesterday to ask for a statement detailing:

  • What the Senators’ history of reproductive choice has been, including details on what kinds of birth control they’ve used and who paid for it
  • Whether the Senators (or their spouses) have used erectile dysfunction drugs, and who paid for it

Mind you, I think such questions are inappropriate. But given that 48 Senators–including 3 Democrats and 4 women–voted yesterday to say that employers should have really intrusive control over their employees’ healthcare decisions (including, but in no way limited, to reproductive health), it seems fair to at least inquire whether these men and women have been relying on birth control to plan their families, whether their use of birth control violates their religion’s stated doctrine, and whether taxpayers paid for birth control during their child-bearing years.

As you can see from the list below, the vast majority of Senators who voted for the Blunt Amendment are likely to have relied on birth control or sterilization to limit their family size. Just three–Susan Collins, Kay Bailey Hutchison, and Lindsey Graham–have no biological children. And just three–Mike Crapo (5), Chuck Grassley (5), and Orrin Hatch (6)–have more than 4 biological children (McCain and Blunt have more with their adopted kids). Of those likely to have used birth control or sterilization, 22 worked for local, state, or federal government during a roughly calculated “child-bearing” period of their life, meaning taxpayers may have paid for their birth control (though of course their spouses’ employers may have provided health care, too). Of those likely to have used more than the rhythm method, 10 are Catholic.

So I’m going to contemplate this over the weekend. But for the moment, consider that the great majority of the Senators who voted to let employers restrict birth control access seem to have families that have been shaped by birth control.

Note the following details are a first draft–please let me know of any inaccuracies.

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