Category: Intelligence

Every Time Something New Comes Out, the NSA Spying Scandal Gets Worse

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First, we have Glenn Greenwald saying that the administration lied, and that Congress was never given sufficient information to evaluate surveillance programs:

Members of Congress have been repeatedly thwarted when attempting to learn basic information about the National Security Agency (NSA) and the secret FISA court which authorizes its activities, documents provided by two House members demonstrate.

 From the beginning of the NSA controversy, the agency’s defenders have insisted that Congress is aware of the disclosed programs and exercises robust supervision over them. “These programs are subject to congressional oversight and congressional reauthorization and congressional debate,” President Obama said the day after the first story on NSA bulk collection of phone records was published in this space. “And if there are members of Congress who feel differently, then they should speak up.”

 But members of Congress, including those in Obama’s party, have flatly denied knowing about them. On MSNBC on Wednesday night, Sen. Richard Blumenthal (D-Ct) was asked by host Chris Hayes: “How much are you learning about what the government that you are charged with overseeing and holding accountable is doing from the newspaper and how much of this do you know?” The Senator’s reply:

The revelations about the magnitude, the scope and scale of these surveillances, the metadata and the invasive actions surveillance of social media Web sites were indeed revelations to me.”

So, once again, we see that the Obama administration makes bald faced lies about it’s data collection of American citizens.

 But it is not merely that members of Congress are unaware of the very existence of these programs, let alone their capabilities. Beyond that, members who seek out basic information – including about NSA programs they are required to vote on and FISA court (FISC) rulings on the legality of those programs – find that they are unable to obtain it.

At the bottom of the article, he notes that Alan Grayson was threatened with sanctions by the House Intelligence Committee for reprinting slides that the Guardian had put up on the web.

And by the way, that whole bit about them not spying on us? They are lying about that too, and not only are they lying to the American public, they are lying to judges and defense counsels as well:

A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin – not only from defense lawyers but also sometimes from prosecutors and judges.

The undated documents show that federal agents are trained to “recreate” the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant’s Constitutional right to a fair trial. If defendants don’t know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence – information that could reveal entrapment, mistakes or biased witnesses.

“I have never heard of anything like this at all,” said Nancy Gertner, a Harvard Law School professor who served as a federal judge from 1994 to 2011. Gertner and other legal experts said the program sounds more troubling than recent disclosures that the National Security Agency has been collecting domestic phone records. The NSA effort is geared toward stopping terrorists; the DEA program targets common criminals, primarily drug dealers.

“It is one thing to create special rules for national security,” Gertner said. “Ordinary crime is entirely different. It sounds like they are phonying up investigations.”

THE SPECIAL OPERATIONS DIVISION

The unit of the DEA that distributes the information is called the Special Operations Division, or SOD. Two dozen partner agencies comprise the unit, including the FBI, CIA, NSA, Internal Revenue Service and the Department of Homeland Security. It was created in 1994 to combat Latin American drug cartels and has grown from several dozen employees to several hundred.

Today, much of the SOD’s work is classified, and officials asked that its precise location in Virginia not be revealed. The documents reviewed by Reuters are marked “Law Enforcement Sensitive,” a government categorization that is meant to keep them confidential.

“Remember that the utilization of SOD cannot be revealed or discussed in any investigative function,” a document presented to agents reads. The document specifically directs agents to omit the SOD’s involvement from investigative reports, affidavits, discussions with prosecutors and courtroom testimony. Agents are instructed to then use “normal investigative techniques to recreate the information provided by SOD.”

………

A dozen current or former federal agents interviewed by Reuters confirmed they had used parallel construction during their careers. Most defended the practice; some said they understood why those outside law enforcement might be concerned.

“It’s just like laundering money – you work it backwards to make it clean,” said Finn Selander, a DEA agent from 1991 to 2008 and now a member of a group called Law Enforcement Against Prohibition, which advocates legalizing and regulating narcotics.

Some defense lawyers and former prosecutors said that using “parallel construction” may be legal to establish probable cause for an arrest. But they said employing the practice as a means of disguising how an investigation began may violate pretrial discovery rules by burying evidence that could prove useful to criminal defendants.

………

One current federal prosecutor learned how agents were using SOD tips after a drug agent misled him, the prosecutor told Reuters. In a Florida drug case he was handling, the prosecutor said, a DEA agent told him the investigation of a U.S. citizen began with a tip from an informant. When the prosecutor pressed for more information, he said, a DEA supervisor intervened and revealed that the tip had actually come through the SOD and from an NSA intercept.

“I was pissed,” the prosecutor said. “Lying about where the information came from is a bad start if you’re trying to comply with the law because it can lead to all kinds of problems with discovery and candor to the court.” The prosecutor never filed charges in the case because he lost confidence in the investigation, he said.

So, “It’s only metadata,” it’s a lie. “We don’t knowingly use the NSA to spy on Americans,” it’s a lie.

You see a pattern?

Live in Obedient Fear, Citizen

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It looks like the Feds are probably responsible for hacking an online anonymity service:

Security researchers tonight are poring over a piece of malicious software that takes advantage of a Firefox security vulnerability to identify some users of the privacy-protecting Tor anonymity network.

 The malware showed up Sunday morning on multiple websites hosted by the anonymous hosting company Freedom Hosting. That would normally be considered a blatantly criminal “drive-by” hack attack, but nobody’s calling in the FBI this time. The FBI is the prime suspect.

 “It just sends identifying information to some IP in Reston, Virginia,” says reverse-engineer Vlad Tsyrklevich. “It’s pretty clear that it’s FBI or it’s some other law enforcement agency that’s U.S.-based.”

 If Tsrklevich and other researchers are right, the code is likely the first sample captured in the wild of the FBI’s “computer and internet protocol address verifier,” or CIPAV, the law enforcement spyware first reported by WIRED in 2007.

………

By midday Sunday, the code was being circulated and dissected all over the net. Mozilla confirmed the code exploits a critical memory management vulnerability in Firefox that was publicly reported on June 25, and is fixed in the latest version of the browser.

Though many older revisions of Firefox are vulnerable to that bug, the malware only targets Firefox 17 ESR, the version of Firefox that forms the basis of the Tor Browser Bundle – the easiest, most user-friendly package for using the Tor anonymity network.

“The malware payload could be trying to exploit potential bugs in Firefox 17 ESR, on which our Tor Browser is based,” the non-profit Tor Project wrote in a blog post Sunday. “We’re investigating these bugs and will fix them if we can.”

The inevitable conclusion is that the malware is designed specifically to attack the Tor browser. The strongest clue that the culprit is the FBI, beyond the circumstantial timing of Marques’ arrest, is that the malware does nothing but identify the target.

Anyone want to guess who is behind this?

Whoever is ultimately behind this, it’s been farmed out to a contractor, “According to Domaintools, the malware’s command-and-control IP address in Virginia is allocated to Science Applications International Corporation. Based in McLean, Virginia, SAIC is a major technology contractor for defense and intelligence agencies, including the FBI.” (SAIC refused comment)

SAIC isn’t doing this on its own.  Someone in the government is paying them to do this.

As  to whether or not there is a court order authorizing the FBI to plant malware on thousands of people’s machines, possibly, but we will never know, since it is almost certainly been finessed through the FISA court somehow..

The NSA Spying Gets Worse

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Now we have XKeyscore, which “collects ‘nearly everything a user does on the internet’.”

A top secret National Security Agency program allows analysts to search with no prior authorization through vast databases containing emails, online chats and the browsing histories of millions of individuals, according to documents provided by whistleblower Edward Snowden.

 The NSA boasts in training materials that the program, called XKeyscore, is its “widest-reaching” system for developing intelligence from the internet.

 The latest revelations will add to the intense public and congressional debate around the extent of NSA surveillance programs. They come as senior intelligence officials testify to the Senate judiciary committee on Wednesday, releasing classified documents in response to the Guardian’s earlier stories on bulk collection of phone records and Fisa surveillance court oversight.

 ………

 The files shed light on one of Snowden’s most controversial statements, made in his first video interview published by the Guardian on June 10.

 “I, sitting at my desk,” said Snowden, could “wiretap anyone, from you or your accountant, to a federal judge or even the president, if I had a personal email”.

 US officials vehemently denied this specific claim. Mike Rogers, the Republican chairman of the House intelligence committee, said of Snowden’s assertion: “He’s lying. It’s impossible for him to do what he was saying he could do.”

 But training materials for XKeyscore detail how analysts can use it and other systems to mine enormous agency databases by filling in a simple on-screen form giving only a broad justification for the search. The request is not reviewed by a court or any NSA personnel before it is processed.

So, either Rep. Rogers knowingly lied, or he was lied to by the state security apparatus.

Yeah, it just keeps getting worse, and there is more to come, at least that is what Senator Ron Wyden said yesterday when he said that, “U.S. intelligence agencies’ violations of court orders on surveillance of Americans is worse than the government is letting on,” which means that even with a incredibly compliant FISA Court (You need to keep them away from toilet paper, because they will sign anything), they be bothered to follow the “law”.

How Torture Comes Home, Part 55

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We now have a report that the CIA is hemorrhaging because its management sucks:

For the Central Intelligence Agency, he was a catch: an American citizen who had grown up overseas, was fluent in Mandarin and had a master’s degree in his field. He was working in Silicon Valley, but after the terrorist attacks of Sept. 11, 2001, he wanted to serve his country.

The analyst, who declined to be named to shield his association with the CIA, was hired in 2005 into the agency’s Directorate of Intelligence, where he was assigned to dig into Chinese politics. He said he was dismayed to discover that unimpressive managers wielded incredible power and suffered no consequences for mistakes. Departments were run like fiefdoms, he said, and “very nasty internecine battles” were a fixture.

By 2009, he had left the CIA. He now does a similar job for the U.S. military.

CIA officials often assert that while the spy agency’s failures are known, its successes are hidden. But the clandestine organization celebrated for finding Osama bin Laden has been viewed by many of its own people as a place beset by bad management, where misjudgments by senior officials go unpunished, according to internal CIA documents and interviews with more than 20 former officers.

So, how does this relate to torturers?

Because the torturers are people who are not that good at their jobs. If they were good, they wouldn’t have to break the law to create the illusion of results. (A quick Google shows that torture does not work)

Of course, between the torture fetishists of Bush and His Evil Minions™, and the torture apologists of Obama and His Evil Minions™, torture has become a ticket that you need to punch to advance in “the agency”.

So, because successive White Houses have institutionalized torture, they have also institutionalized incompetent agents who become incompetent managers who are fearful that their lack of ability will be exposed.

We have incentivized torture, incompetence, and corruption for people who want to have intelligence as a career path.

This is Beyond Orwell’s Wildest Imaginings

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In his seminal work 1984, he coined the idiom, “We’ve always been at war with Eastasia.”

Well, Obama and His Evil Minions™ have done this one better, and they claim that the list of people that we are at war with is classified:

Back in May, we noted the oddity of the charges in Bradley Manning’s trial, in which he was accused of aiding three different “enemies,” with the last one being classified. Specifically, he was accused of aiding Al-Qaida, Al-Qaida of the Arabian Peninsula (AQAP, which is different than AQ itself) and… mystery enemy. Back at the beginning of July, the government quietly dropped the charge against the classified enemy, so that’s no longer in play in that case. That said, apparently this concept of classifying who we’re at war with wasn’t just limited to the Manning trial. ProPublica has the ridiculous and frightening tale of finding out that the answer to the simple question of who the US is at war with, is apparently classified as well.

At a hearing in May, Sen. Carl Levin, D-Mich., asked the Defense Department to provide him with a current list of Al Qaeda affiliates.

The Pentagon responded – but Levin’s office told ProPublica they aren’t allowed to share it. Kathleen Long, a spokeswoman for Levin, would say only that the department’s “answer included the information requested.”

The Pentagon also went on to tell ProPublica that revealing who we’re actually at war with would do “serious damage to national security.” The main reason? They think those groups would use the info as good publicity and allow them to recruit more.………

If the UK were to hook up a generator to the grave of Eric Arthur Blair, they could power all of Europe, because he is surely spinning in his grave at unbelievable speed.

We Lose

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The House has narrowly rejected an amendment to the Defense Authorization Bill to restrict NSA spying on Americans:

U.S. lawmakers angry about domestic telephone record-collection lost an effort to curtail funding for the intelligence-gathering tools revealed by fugitive U.S. security contractor Edward Snowden.

On a vote of 205-217, the House rejected an amendment that would have limited the National Security Agency’s ability to collect communications records.

Implementation of the amendment could have created a new burden on telephone and Internet companies to retain bulk data, in addition to ending the NSA’s blanket collection of phone records. Those possibilities led the White House, Republicans leaders and many congressional Democrats to oppose the proposals, pitting them against lawmakers from both parties who champion civil liberties and privacy.

The by-party tally is Democrats  (111-83), and Republicans (94-134), a 5 vote margin, and it is almost certainly only because Obama started seriously twisting arms on the Dem side of the aisle in the past 48 hours or so.  (My rep, John Sarbanes, voted yes).

Hopefully, this is only the start of the fight, and the next time, the good guys will pick up a few more votes, and win.

Obama Continues to Spy on Ordinary Americans

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They just got a 3 month extension of its data drift net of Verizon, and one would assume everyone else too:

The National Security Agency has been allowed to extend its dragnet of the telephone records of millions of US customers of Verizon through a court order issued by the secret court that oversees surveillance.

In an unprecedented move prompted by the Guardian’s disclosure in June of the NSA’s indiscriminate collection of Verizon metadata, the Office of the Director of National Intelligence (ODNI) has publicly revealed that the scheme has been extended yet again.

The statement does not mention Verizon by name, nor make clear how long the extension lasts for, but it is likely to span a further three months in line with previous routine orders from the secret Foreign Intelligence Surveillance Court (Fisa).

The announcement flowed, the statement said, from the decision to declassify aspects of the metadata grab “in order to provide the public with a more thorough and balanced understanding of the program”.

According to Democratic senator Dianne Feinstein, the Verizon phone surveillance has been in place – updated every three months – for at least six years, and it is understood to have been applied to other telecoms giants as well.

Not feeling hopey changey here.

I Think that Carl Levin Just Suggested that Obama Fire James Clapper

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Seeing as how Levin is one of the most intelligence agency friendly Senators, so the fact that he is subtly suggesting that DNI Clapper be fired is a significant thing:

Senate Armed Services Committee Chairman Carl Levin (D-Mich.) said Tuesday that he was “troubled” by the testimony of Director of National Intelligence James Clapper and was unsure how Clapper could be held accountable.

………

The testimony prompted criticism from lawmakers and led to some calls for his resignation over the false testimony.

Levin said he wouldn’t go that far but suggested that the only way Clapper could be held accountable was if President Obama fired him.

“I’m troubled by that testimony, obviously,” Levin said at a breakfast roundtable hosted by The Christian Science Monitor.

“How do you hold him accountable? I guess the only way to do that would be for the president to, somehow or other, fire him,” Levin added. “I think he’s made it clear that he regrets saying what he said. I don’t want to call on the president to fire him, although I’m troubled by this.”

Actually, the distinguished gentleman from Michigan does want Clapper fired, he would not have brought it up, and then dismissed the suggestion, if he did not want Clapper gone.

Well Duh!

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The Washington Post notes that, “Lawmakers say administration’s lack of candor on surveillance weakens oversight.”

Gee, you think?

Lawmakers tasked with overseeing national security policy say a pattern of misleading testimony by senior Obama administration officials has weakened Congress’s ability to rein in government surveillance.

Members of Congress say officials have either denied the existence of a broad program that collects data on millions of Americans or, more commonly, made statements that left some lawmakers with the impression that the government was conducting only narrow, targeted surveillance operations.

The most recent example came on March 12, when James R. Clapper, director of national intelligence, told the Senate Intelligence Committee that the government was not collecting information about millions of Americans. He later acknowledged that the statement was “erroneous” and apologized, citing a misunderstanding.

“Misunderstanding,” my ass.

Clapper was given a day’s notice that the question was going to be asked, and he was given an opportunity to further clarify immediately after the fact.

He simply lied, because he knew that he could.

Why Ellsberg Could Turn Himself In, and Edward Snowden Cannot

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Basically, it comes down to the fact that while Ellsberg might have been at risk by illegal activities of the Nixon administration, he was not at risk by the law itself, while Edward Snowden would be tortured as a matter of law and Department of Justice policy:

Many people compare Edward Snowden to me unfavorably for leaving the country and seeking asylum, rather than facing trial as I did. I don’t agree. The country I stayed in was a different America, a long time ago.

After the New York Times had been enjoined from publishing the Pentagon Papers — on June 15, 1971, the first prior restraint on a newspaper in U.S. history — and I had given another copy to The Post (which would also be enjoined), I went underground with my wife, Patricia, for 13 days. My purpose (quite like Snowden’s in flying to Hong Kong) was to elude surveillance while I was arranging — with the crucial help of a number of others, still unknown to the FBI — to distribute the Pentagon Papers sequentially to 17 other newspapers, in the face of two more injunctions. The last three days of that period was in defiance of an arrest order: I was, like Snowden now, a “fugitive from justice.”

Yet when I surrendered to arrest in Boston, having given out my last copies of the papers the night before, I was released on personal recognizance bond the same day. Later, when my charges were increased from the original three counts to 12, carrying a possible 115-year sentence, my bond was increased to $50,000. But for the whole two years I was under indictment, I was free to speak to the media and at rallies and public lectures. I was, after all, part of a movement against an ongoing war. Helping to end that war was my preeminent concern. I couldn’t have done that abroad, and leaving the country never entered my mind.

There is no chance that experience could be reproduced today, let alone that a trial could be terminated by the revelation of White House actions against a defendant that were clearly criminal in Richard Nixon’s era — and figured in his resignation in the face of impeachment — but are today all regarded as legal (including an attempt to “incapacitate me totally”).

(FYI, “incapacitate me totally” means assassination by Nixon’s people)

I hope Snowden’s revelations will spark a movement to rescue our democracy, but he could not be part of that movement had he stayed here. There is zero chance that he would be allowed out on bail if he returned now and close to no chance that, had he not left the country, he would have been granted bail. Instead, he would be in a prison cell like Bradley Manning, incommunicado.

He would almost certainly be confined in total isolation, even longer than the more than eight months Manning suffered during his three years of imprisonment before his trial began recently. The United Nations Special Rapporteur for Torture described Manning’s conditions as “cruel, inhuman and degrading.” (That realistic prospect, by itself, is grounds for most countries granting Snowden asylum, if they could withstand bullying and bribery from the United States.)

What he is saying here is that Snowden will be tortured if he ever enters US custody.

Hell, they did that almost 20 years ago in the case of Wen Ho Lee, where he spent months in pretrial solitary, largely because the prosecutors, and the counter-espionage apparatus, wanted to break him.

BTW, when we look at the NSA surveillance regime, it is what a former East German Stasi officer would call a totalitarian state’s wet dream:

Wolfgang Schmidt was seated in Berlin’s 1,200-foot-high TV tower, one of the few remaining landmarks left from the former East Germany. Peering out over the city that lived in fear when the communist party ruled it, he pondered the magnitude of domestic spying in the United States under the Obama administration. A smile spread across his face.

“You know, for us, this would have been a dream come true,” he said, recalling the days when he was a lieutenant colonel in the defunct communist country’s secret police, the Stasi.

In those days, his department was limited to tapping 40 phones at a time, he recalled. Decide to spy on a new victim and an old one had to be dropped, because of a lack of equipment. He finds breathtaking the idea that the U.S. government receives daily reports on the cellphone usage of millions of Americans and can monitor the Internet traffic of millions more.

You know, if your surveillance regime is something that gives a former Stasi agent a stiffie, you are doing something profoundly evil.

Former FISA Judge Criticizes the Court

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Well, now we have a retired FISA Court Judge saying this court has been reduced to a joke and a fraud:

A retired judge who once served on a secretive U.S. intelligence court said on Tuesday it should not be able to approve broad government data-gathering requests without hearing from outside parties who could warn of potential civil liberties concerns.

 Currently, the Foreign Intelligence Surveillance Court makes its decisions on government surveillance requests without hearing from anyone but U.S. Justice Department lawyers in its behind-closed-doors proceedings.

 James Robertson, a retired federal judge in Washington who served on the court for three years ending in 2005, said that if the court is required to approve broad data-collection programs, the judges should be able to hear from other parties.

 Speaking at a public meeting in Washington on privacy and civil liberties, he said the process would work better if some approximation of an adversarial system existed.

 “I submit this process needs an adversary,” he said.

 Robertson suggested the possible reforms during the public meeting held by the Privacy and Civil Liberties Oversight Board, a bipartisan government entity set up in 2004 to advise the White House on civil liberties concerns raised by intelligence gathering. He said the privacy board itself could possibly be a party in the intelligence court’s proceedings.

 The actions of the court have come under new scrutiny following the disclosure of previously secret telephone and internet surveillance programs conducted by the U.S. government.

 The British Guardian and the Washington Post newspapers disclosed the details of the data collection in June based on documents provided by Edward Snowden, the fugitive U.S. National Security Agency contractor believed to be holed up in Russia.

 Since the U.S. Congress amended the 1978 Foreign Intelligence Surveillance Act (FISA) in 2008, the court “now approves programmatic surveillance,” Robertson said, meaning it was acting more like a government agency than a court.

 “That’s not the bailiwick of judges,” he said. “Judges don’t make policy.”

 Robertson said that when he served on the court, the judges’ role was to decide whether to grant government requests for individual warrants, he said. Granting approval to entire programs is not a “judicial function,” he said.

(emphasis mine)

While he does say that he is not suggesting the law is being broken, this sort of talk from a judge about his court (with the possible exception of Antonin “Fat Tony” Scalia) is very rare.

Note also that he is not criticizing the judges, he is criticizing the role of the court under new laws.

Understanding just how vehement this seemingly mild speech is a bit like reading Nathanial Hawthorne,* he cannot express his outrage explicitly.  It is a circuitously oblique way to to express his views, but this is as befits a judge.

*The phrase, “Then, all was spoken!” refers to physical passion (probably sex) in The Scarlet Letter.

Talk About Irony

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Glenn Greenwald lives in Brazil because DOMA does not recognize his partner for the purposes of immigration, and Brazil does.

With DOMA being overturned, it means that if he were to move back to the United States, his partner would get a spouse visa:

Glenn Greenwald has been living in Brazil (where he has a permanent visa*) for the past eight years with his partner, David Michael Miranda. Now that the Defense of Marriage Act has been struck down, Greenwald says they’re considering moving back to the United States.

Here’s how he described his reason for moving in an interview with Out Magazine in 2011:

Brazil recognizes our relationship for immigration purposes, while the government of my supposedly “free,” liberty-loving country enacted a law explicitly barring such recognition.

Does Wednesday’s ruling mean Greenwald will move back? Here’s what he said in an email to Slate senior editor Emily Bazelon today:

 It’s certainly something we’ll consider. It’s a huge choice with many complicated factors, and it’s not the kind of thing you seriously evaluate when the option isn’t available to you. We haven’t made up our minds in the 90 minutes or so since the decision was announced!

 We’ve lived here together for 8 years and built a life. My partner is finishing school. All of his family is here. So it’s something that will take time to resolve. But it’s definitely something that we both have a desire at some point to do, and will now spend the time figuring out how and when we can do it.

What is also clear is that, at least until Barack Obama leaves office, is that he, and his partner, would be mercilessly targeted by the authorities if they would set foot back in the United States because of their roles in exposing the NSA spying on US citizens.

So now, because he has effectively been declared an enemy of the state, he cannot safely exercise he new rights his partner got today.

Welcome to the United States of Kafka.

Barack Milhaus* Obama

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Yes, Barack Obama has stepped it up a notch in his war against transparency in government by requiring federal employees to snitch on each other, and declaring both leaking and investigative journalism as tantamount to treason:

Even before a former U.S. intelligence contractor exposed the secret collection of Americans’ phone records, the Obama administration was pressing a government-wide crackdown on security threats that requires federal employees to keep closer tabs on their co-workers and exhorts managers to punish those who fail to report their suspicions.

 President Barack Obama’s unprecedented initiative, known as the Insider Threat Program, is sweeping in its reach. It has received scant public attention even though it extends beyond the U.S. national security bureaucracies to most federal departments and agencies nationwide, including the Peace Corps, the Social Security Administration and the Education and Agriculture departments. It emphasizes leaks of classified material, but catchall definitions of “insider threat” give agencies latitude to pursue and penalize a range of other conduct.

 Government documents reviewed by McClatchy illustrate how some agencies are using that latitude to pursue unauthorized disclosures of any information, not just classified material. They also show how millions of federal employees and contractors must watch for “high-risk persons or behaviors” among co-workers and could face penalties, including criminal charges, for failing to report them. Leaks to the media are equated with espionage.

 “Hammer this fact home . . . leaking is tantamount to aiding the enemies of the United States,” says a June 1, 2012, Defense Department strategy for the program that was obtained by McClatchy.

 The Obama administration is expected to hasten the program’s implementation as the government grapples with the fallout from the leaks of top secret documents by Edward Snowden, the former National Security Agency contractor who revealed the agency’s secret telephone data collection program. The case is only the latest in a series of what the government condemns as betrayals by “trusted insiders” who have harmed national security.

(emphasis mine)

This really is chilling and truly evil.

Mr. Obama is truly the worst constitutional law professor ever.™

Snowden Has Flown to Russia, Is Expected to Ask for Asylum in Ecuador

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I am not surprised.  Hong Kong is not a safe haven in the long term, and if he returns to the United States, he will be tortured through extended solitary confinement in an attempt to break him, as was done with Wen Ho Lee.

So he is in Moscow negotiating asylum with Ecuador:

Fugitive former US intelligence contractor Edward Snowden is due to fly out of Russia in the next few hours in a bid to seek asylum in Ecuador.

Reports suggest he will be on an early afternoon flight out of Moscow, heading first to the Cuban capital Havana.

Washington says it is urging countries in the “Western Hemisphere” not to let Mr Snowden enter their territory.

The US has charged him with espionage over leaked secret documents revealing US internet and phone surveillance.

In a series of rapidly moving developments on Sunday, Mr Snowden flew to Moscow from Hong Kong where he had been holed up since fleeing the US.

Once at Moscow’s Sheremetyevo Airport it is thought he was met by Ecuador’s ambassador to Moscow whose car was seen arriving by reporters.

On Sunday night it was unclear exactly where Mr Snowden was, but he was believed to be still at the airport.

BBC Moscow correspondent Daniel Sandford says it is being reported that he will fly first to Cuba and then to Venezuela before heading to Ecuador. The first plane scheduled to fly to Havana was due to leave Sheremetyevo at 14:05 Moscow time (10:05 GMT).

He will be trying to avoid any country that might arrest him on behalf of the US, our correspondent adds.

At this point, I expect that Obama is looking into ways of having Snowden whacked, and Glenn Greenwald might be on his latest kill list as well.

Like Rendering for Torture, Only With Data

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In another scoop, the Guardian has revealed that GCHQ, the British Equivalent of the NSA, engaged in the same sort of massive data drift net as the NSA:

Britain’s spy agency GCHQ has secretly gained access to the network of cables which carry the world’s phone calls and internet traffic and has started to process vast streams of sensitive personal information which it is sharing with its American partner, the National Security Agency (NSA).

 The sheer scale of the agency’s ambition is reflected in the titles of its two principal components: Mastering the Internet and Global Telecoms Exploitation, aimed at scooping up as much online and telephone traffic as possible. This is all being carried out without any form of public acknowledgement or debate.

 One key innovation has been GCHQ’s ability to tap into and store huge volumes of data drawn from fibre-optic cables for up to 30 days so that it can be sifted and analysed. That operation, codenamed Tempora, has been running for some 18 months.

 ………

 By May last year 300 analysts from GCHQ, and 250 from the NSA, had been assigned to sift through the flood of data.

 The Americans were given guidelines for its use, but were told in legal briefings by GCHQ lawyers: “We have a light oversight regime compared with the US“.

 When it came to judging the necessity and proportionality of what they were allowed to look for, would-be American users were told it was “your call”.

 The Guardian understands that a total of 850,000 NSA employees and US private contractors with top secret clearance had access to GCHQ databases.

(Emphasis mine)

What we are seeing here is the moral equivalent of the rendition for torture that the CIA engaged in with despotic governments.

In this case, the NSA is not allowed to spy on Americans, so they have the British do it for them and then they review the data under the British “Light oversight regime.”

Note that this in addition to the exceptions and shadings on the NSA’s own surveillance discussed by the Electronic Frontier Foundation.

Taken together, it’s a blue print for a lawless surveillance state.

(updated title)

Once Again, Obama Invokes the 96 Year Old Espionage Act Yet Again

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Yes, this time Worst Constitutional Law Professor Ever™ is using the act, originally drafted to prohibit expressing anti-war sentiments, to pursue a leaker, in this case, go after Edward Snowden:

Federal prosecutors have filed a criminal complaint against Edward Snowden, the former National Security Agency contractor who leaked a trove of documents about top-secret surveillance programs, and the United States has asked Hong Kong to detain him on a provisional arrest warrant, according to U.S. officials.

 Snowden was charged with theft, “unauthorized communication of national defense information” and “willful communication of classified communications intelligence information to an unauthorized person,” according to the complaint. The last two charges were brought under the 1917 Espionage Act.

Rolling Glenn Greenwald:

Prior to Barack Obama’s inauguration, there were a grand total of three prosecutions of leakers under the Espionage Act (including the prosecution of Dan Ellsberg by the Nixon DOJ). That’s because the statute is so broad that even the US government has largely refrained from using it. But during the Obama presidency, there are now seven such prosecutions: more than double the number under all prior US presidents combined. How can anyone justify that?

For a politician who tried to convince Americans to elect him based on repeated pledges of unprecedented transparency and specific vows to protect “noble” and “patriotic” whistleblowers, is this unparalleled assault on those who enable investigative journalism remotely defensible? Recall that the New Yorker’s Jane Mayer said recently that this oppressive climate created by the Obama presidency has brought investigative journalism to a “standstill”, while James Goodale, the General Counsel for the New York Times during its battles with the Nixon administration, wrote last month in that paper that “President Obama will surely pass President Richard Nixon as the worst president ever on issues of national security and press freedom.” Read what Mayer and Goodale wrote and ask yourself: is the Obama administration’s threat to the news-gathering process not a serious crisis at this point?

………

They haven’t learned anything from these disclosures that they didn’t already well know. The people who have learned things they didn’t already know are American citizens who have no connection to terrorism or foreign intelligence, as well as hundreds of millions of citizens around the world about whom the same is true. What they have learned is that the vast bulk of this surveillance apparatus is directed not at the Chinese or Russian governments or the Terrorists, but at them.

And that is precisely why the US government is so furious and will bring its full weight to bear against these disclosures. What has been “harmed” is not the national security of the US but the ability of its political leaders to work against their own citizens and citizens around the world in the dark, with zero transparency or real accountability. If anything is a crime, it’s that secret, unaccountable and deceitful behavior: not the shining of light on it.

(Emphasis Original)

He is correct.  The only potential “injury to the United States” (from the text of this law) is to subject the actions of the NSA, and the rest of the US state security apparatus to public discussions.

The terrorists already knew this, as it is clear from the approved leaks from the Obama administration made this clear to anyone with 2 working brain cells.

I wish that we had a less paranoid president with a greater devotion to openness and transparency.

Of course, Richard Nixon qualifies as less paranoid President with a greater devotion to openness and transparency, which just goes to show how far we have fallen as a society.

Obama Is Lying About the Prevented Terror Attacks, and Other NSA Scandal Stuff

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A review of the claims shows that either ordinary law enforcement actions uncovered the planned attacks, or that there never was a planned attack, there never was an attack:

This suspect, in turn, was in contact with an individual in the United States named Khalid Ouazzani. Thus warned, the FBI investigated Mr. Ouazzani through traditional law enforcement methods, and discovered a burgeoning plot to bomb the NYSE.

 “Ouazzani had been providing information and support to this plot,” FBI Deputy Director Sean Joyce told lawmakers.
However, Mr. Ouazzani pleaded guilty to providing material support – in his case, money – to Al Qaeda, not to terror planning. His May 2010 plea agreement makes no mention of anything related to the New York Stock Exchange, or any bomb plot, notes David Kravets in Wired magazine.

 Plus, Ouazzani’s defense attorney said Tuesday the stock market allegation was news to him.

 “Khalid Ouazzani was not involved in any plot to bomb the New York Stock Exchange,” attorney Robin Fowler told Wired.

 As to the New York subway plot, it was discovered not by analysis of vast amounts of Internet data of foreign users, but rather by old-fashioned police work, according to The Guardian, the British newspaper that first published a secret NSA document showing the agency collected phone metadata from Verizon Business Services.
A British intelligence investigation into a suspected terrorist cell in England’s northwest first turned up a crucial e-mail address of a Pakistani extremist, write The Guardian’s Ed Pilkington and Nicholas Watt. They passed this address to the US.

 Surveillance of this one address led the US to Najibullah Zazi, an Afghan-American living in Colorado who had asked the Pakistani extremist for explosives recipes. FBI agents followed Mr. Zazi as he traveled to New York. Search warrants turned up bomb components, and in 2010 Zazi confessed to a plot to bomb the city’s subway system with backpacks.

The NSA’s sweeping data interception capability “played a relatively minor role” in breaking this case, write Mr. Pilkington and Mr. Watt.

And the Guardian now hsa published the secret standards used by the NSA, and it appears we have another lie, because the standards do allow for emails to be read and phone calls to be listened to:(see here and here for the docs)

The Guardian is publishing in full two documents submitted to the secret Foreign Intelligence Surveillance Court (known as the Fisa court), signed by Attorney General Eric Holder and stamped 29 July 2009. They detail the procedures the NSA is required to follow to target “non-US persons” under its foreign intelligence powers and what the agency does to minimize data collected on US citizens and residents in the course of that surveillance.

The documents show that even under authorities governing the collection of foreign intelligence from foreign targets, US communications can still be collected, retained and used.

………
The top secret documents published today detail the circumstances in which data collected on US persons under the foreign intelligence authority must be destroyed, extensive steps analysts must take to try to check targets are outside the US, and reveals how US call records are used to help remove US citizens and residents from data collection.

However, alongside those provisions, the Fisa court-approved policies allow the NSA to:

  • Keep data that could potentially contain details of US persons for up to five years;
  • Retain and make use of “inadvertently acquired” domestic communications if they contain usable intelligence, information on criminal activity, threat of harm to people or property, are encrypted, or are believed to contain any information relevant to cybersecurity;
  • Preserve “foreign intelligence information” contained within attorney-client communications;
  • Access the content of communications gathered from “U.S. based machine[s]” or phone numbers in order to establish if targets are located in the US, for the purposes of ceasing further surveillance.

………

The documents also show that discretion as to who is actually targeted under the NSA’s foreign surveillance powers lies directly with its own analysts, without recourse to courts or superiors – though a percentage of targeting decisions are reviewed by internal audit teams on a regular basis.

………

Those procedures state that the “NSA determines whether a person is a non-United States person reasonably believed to be outside the United States in light of the totality of the circumstances based on the information available with respect to that person, including information concerning the communications facility or facilities used by that person”.

It includes information that the NSA analyst uses to make this determination – including IP addresses, statements made by the potential target, and other information in the NSA databases, which can include public information and data collected by other agencies.

Where the NSA has no specific information on a person’s location, analysts are free to presume they are overseas, the document continues.

“In the absence of specific information regarding whether a target is a United States person,” it states “a person reasonably believed to be located outside the United States or whose location is not known will be presumed to be a non-United States person unless such person can be positively identified as a United States person.”

If it later appears that a target is in fact located in the US, analysts are permitted to look at the content of messages, or listen to phone calls, to establish if this is indeed the case.

Referring to steps taken to prevent intentional collection of telephone content of those inside the US, the document states: “NSA analysts may analyze content for indications that a foreign target has entered or intends to enter the United States. Such content analysis will be conducted according to analytic and intelligence requirements and priorities.“

(emphasis mine)

Translated from the bureaucratese, this is unlimited ability to record phone calls and emails, until it is proven that they are not in the United States, and even then, the data is retained.

All that the analyst has to do is to claim that you are “not sure” if the target is a “US Person”, and it’s no harm no foul for intercepting the contents of their communications.

As Glenn Greenwald notes, this is yet more evidence that FISA court oversight is a complete joke.

H/t to Washington’s blog for the links on the NSA false claims.