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Thread: Intelligence post-Snowden: a debate

  1. #81
    Council Member davidbfpo's Avatar
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    Default Inkster on Snowden – myths and misapprehension

    Nigel Inkster, ex-No.2 at SIS, now at IISS, has written a commentary 'Snowden – myths and misapprehensions' and is worth a read:http://www.iiss.org/en/politics%20an...6/snowden-9dd1

    He ends with:
    It seems that the revelations will continue for the foreseeable future and that, as they do, further myths and misapprehensions will take hold. For those who regard intelligence services as inherently illegitimate or take the view that the US is the world’s number-one rogue actor, no counter-narrative will ever be convincing. But for those who accept that covert capabilities of some kind are needed to combat the threats posed by an array of state and non-state actors – or who adopt the realist perspective that countries are entitled to use covert capabilities to secure national advantage, provided that this is subject to proper controls – there is scope for a more nuanced debate on how power can be responsibly exercised by governments in the cyber domain. That must start with an understanding of the issues based on facts rather than misapprehensions.
    There is much I would agree with, but I do differ on whether the British accountability and oversight regime are today fit for public purpose, as distinct from the state's intended purpose.

    Two additional UK stories, one 'Surveillance technology out of control, says Lord Ashdown'; he is an ex-Liberal-Democrat leader:http://www.theguardian.com/world/201...ontrol-ashdown

    The second by Simon Jenkins, a regular columnist in The Guardian, is 'The days of believing spy chiefs who say 'Trust us' are over'; a conclusion that is a moot point as the issues appear to have little public traction:http://www.theguardian.com/commentis...ver?CMP=twt_gu

    There is a main SWC thread on the issues '"We are all honorary Muslims now" with PRISM?', which will absorb this thread one day.
    davidbfpo

  2. #82
    Council Member davidbfpo's Avatar
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    Default The Pope wins, followed by Mr Snowden

    I rarely read 'Time' magazine, but Twitter alerted me today to it's 2013 Person of the Year being won by Pope Francis - bravo! The runners up were: Edward Snowden, Edith Windsor, Bashar Assad and Ted Cruz. Something strange about such a voting pattern, organisation I say.

    'Time' has an interesting four page article on Mr Snowden, based around some ex-USG national security visitors and some insight into his thoughts. Worth a read:http://poy.time.com/2013/12/11/runne...-dark-prophet/
    davidbfpo

  3. #83
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    Default Updates, most serious; one for fun

    This post is dedicated to David; he knows why.

    Jack Goldsmith, (Very) Quick Reactions to Proposed NSA Reforms (December 13, 2013), provides his usual cogent briefing:

    It is precarious to comment on a leaked version of broad conclusions from a government report. But I think the NYT [Obama Panel Said to Urge N.S.A. Curbs; open source] and WSJ [Presidential Task Force Recommends Overhaul of NSA Surveillance Tactics - Draft Proposals Would Change Spy Agency's Leadership to Civilian, Limit How It Gathers and Holds Information; paywall] accounts of the recommendations by the President’s Review Group on Intelligence and Communications Technology – which consists of Richard A. Clarke, Michael Morell, Cass Sunstein, Geoffrey Stone, and Peter Swire – on the whole reveal solid recommendations that, if implemented, will benefit both NSA and U.S. national security.
    ...
    •The panel recommends that the head of NSA be a civilian rather than military official. This change was coming in any event in light of the NSA’s deeper-than-ever involvement in homeland collection, and is appropriate.

    •More controversial, but also inevitable, is the recommendation to chop off Cyber Command from NSA – this recommendation is debatable in light of the tight connection between cyber-exploitation and cyber-attack, but it has powerful arguments behind it and again was probably going to happen anyway.

    •Apparently the panel recommends continuation of domestic telephone meta-data collection, but with the data being collected/held by the phone companies or a third-party, not NSA, and subject to stricter search criteria. This is probably close to the Sensenbrenner/Leahy bill that the NSA opposes, and indeed it would likely make metadata analysis more difficult, cumbersome, and expensive. This is a large change from the current baseline, but it is does not appear to come close to eliminating the functional benefits of metadata collection and analysis. Indeed, one can see the bottom line, as the NYT put it, that the “program to collect data on every phone call made in the United States should continue.”

    •The panel apparently recommends an organization of privacy advocates to enhance adversariness before the FISC. This is another previously-broached recommendation that will slow things down and weaken the government’s legal hand before the FISC, but that overall will enhance the legitimacy of FISC rulings and thus of NSA activities.

    •The committee apparently proposes guidelines for foreign collection against foreign citizens, including foreign leaders. The devil will be in the details here, but while there will certainly be some restraint imposed, I doubt seriously if it will involve a significant scale-back of foreign collection. But it is hard to tell based on the news reports. ...
    A more in-depth report on NSA is by Joel Brenner, N.S.A.: “Not (So) Secret Anymore” (December 3, 2013), covers:

    Strategy and Tactics in Intelligence Policy

    Allies, Friends, and Interests

    The Revolution in Commercial Technology

    The Shock of Transparency

    Disclosures, Useful and Otherwise

    International Norms

    What Next?
    I'd go further than Joel on changes to the "Patriot Act", but I share his concern about this problem:

    When intelligence reform comes, it’s usually done with a meat axe, not a scalpel. In 1929, Secretary of State Henry Stimson angrily shut down the nation’s fledgling code breaking effort, saying that “gentlemen don’t read each other’s mail.” His naïveté put American intelligence miles behind the British and Germans on the eve of World War II. After the scandalous abuses that came to light in 1976, we punished the agencies severely in way that took years to repair. After the collapse of the Soviet Union in 1989, we slashed our intelligence capabilities – then wondered why we had no ability to collect against Saddam Hussein’s regime. Let’s calm down, think hard, and be more careful this time.
    To go along with prior months' NSA "dumps" (the agency's voluntary disclosures of classified documents), we have:

    End serious part; well, maybe not, if you take politicians seriously.

    Stewart Baker's 2014 Privy Nominations -- "Privacy Hypocrite of the Year"

    I can't tell a lie; I'm totally committed to this EU poster gal winning the show:



    And, here is a recent EU report on the topic, The US surveillance programmes and their impact on EU citizens' fundamental rights (Sep 2014).

    Regards

    Mike
    Last edited by jmm99; 12-14-2013 at 11:39 PM.

  4. #84
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    Default Metadata Collection Unconstitutional

    When I first heard the headline, my first question was which judge pulled the trigger. Answer: Richard J. Leon (Wiki; DC Dist Ct Bio).

    Judge Leon will be familiar to readers of the War Crimes thread; and my unqualified endorsement of his judicial competence, especially in the intelligence area. That doesn't mean I've always agreed with him; reasonable, competent people can and do reach different conclusions.

    The bottom line of Judge Leon's Opinion (68 pp.) is:

    In the months ahead, other Article III courts, no doubt, will wrestle to find the proper balance consistent with our constitutional system. But in the meantime . . . I will grant Larry Klayman’s and Charles Strange’s request for an injunction and enter an order that (1) bars the Government from collecting, as part of the NSA’s Bulk Telephony Metadata Program, any telephony metadata associated with their personal Verizon accounts and (2) requires the Government to destroy any such metadata in its possession that was collected through the bulk collection program.

    However, in light of the significant national security interests at stake in this case and the novelty of the constitutional issues, I will stay my order pending appeal. In doing so, I hereby give the Government fair notice that should my ruling be upheld, this order will go into effect forthwith. Accordingly, I fully expect that during the appellate process, which will consume at least the next six months, the Government will take whatever steps necessary to prepare itself to comply with this order when, and if, it is upheld. Suffice it to say, requesting further time to comply with this order months from now will not be well received and could result in collateral sanctions.
    Many voices will now opine on this opinion.

    Regards

    Mike

  5. #85
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    Default A Second Bad News Item For NSA

    The Report and Recommendations of the President’s Review Group on Intelligence and Communications Technologies (titled "LIBERTY AND SECURITY IN A CHANGING WORLD" has the following members: Richard A. Clarke, Michael J. Morell, Geoffrey R. Stone, Cass R. Sunstein and Peter Swire (12 Dec 2013; 308 pp.). Here are two small snips from the Executive Summary (which also contains 46 recommendations):

    Surveillance of US Persons

    With respect to surveillance of US Persons, we recommend a series of significant reforms. Under section 215 of the Foreign Intelligence Surveillance Act (FISA), the government now stores bulk telephony metadata, understood as information that includes the telephone numbers that both originate and receive calls, time of call, and date of call. (Meta-data does not include the content of calls.). We recommend that Congress should end such storage and transition to a system in which such metadata is held privately for the government to query when necessary for national security purposes.

    In our view, the current storage by the government of bulk meta-data creates potential risks to public trust, personal privacy, and civil liberty. We recognize that the government might need access to such meta-data, which should be held instead either by private providers or by a private third party. This approach would allow the government access to the relevant information when such access is justified, and thus protect national security without unnecessarily threatening privacy and liberty. Consistent with this recommendation, we endorse a broad principle for the future: as a general rule and without senior policy review, the government should not be permitted to collect and store mass, undigested, non-public personal information about US persons for the purpose of enabling future queries and data-mining for foreign intelligence purposes.

    We also recommend specific reforms that will provide Americans with greater safeguards against intrusions into their personal domain. We endorse new steps to protect American citizens engaged in communications with non-US persons. We recommend important restrictions on the ability of the Foreign Intelligence Surveillance Court (FISC) to compel third parties (such as telephone service providers) to disclose private information to the government. We endorse similar restrictions on the issuance of National Security Letters (by which the Federal Bureau of Investigation now compels individuals and organizations to turn over certain otherwise private records), recommending prior judicial review except in emergencies, where time is of the essence.

    We recommend concrete steps to promote transparency and accountability, and thus to promote public trust, which is essential in this domain. Legislation should be enacted requiring information about surveillance programs to be made available to the Congress and to the American people to the greatest extent possible (subject only to the need to protect classified information). We also recommend that legislation should be enacted authorizing telephone, Internet, and other providers to disclose publicly general information about orders they receive directing them to provide information to the government. Such information might disclose the number of orders that providers have received, the broad categories of information produced, and the number of users whose information has been produced. In the same vein, we recommend that the government should publicly disclose, on a regular basis, general data about the orders it has issued in programs whose existence is unclassified.
    Surveillance of Non-US Persons

    Significant steps should be taken to protect the privacy of non-US persons. In particular, any programs that allow surveillance of such persons even outside the United States should satisfy six separate constraints. They:

    1) must be authorized by duly enacted laws or properly authorized executive orders;

    2) must be directed exclusively at protecting national security interests of the United States or our allies;

    3) must not be directed at illicit or illegitimate ends, such as the theft of trade secrets or obtaining commercial gain for domestic industries;

    4) must not target any non-United States person based solely on that person’s political views or religious convictions;

    5) must not disseminate information about non-United States persons if the information is not relevant to protecting the national security of the United States or our allies; and

    6) must be subject to careful oversight and to the highest degree of transparency consistent with protecting the national security of the United States and our allies.

    We recommend that, in the absence of a specific and compelling showing, the US Government should follow the model of the Department of Homeland Security and apply the Privacy Act of 1974 in the same way to both US persons and non-US persons.
    Regards

    Mike

  6. #86
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    Default Metadata Collection Constitutional

    I plead general ignorance of the judge, William H. Pauley III, from the Southern District of New York, except for his very brief DC Bio and Wiki. His opinion in ACLU v Clapper concludes:

    The right to be free from searches and seizures is fundamental, but not absolute. As Justice Jackson famously observed: "the Bill of Rights is not a suicide-pact." Terminiello v. City of Chicago, 3 3 7 U.S. 1 ( 1949). Whether the Fourth Amendment protects bulk telephony metadata is ultimately a question of reasonableness. Missouri v. McNeely, 133 S. Ct. 1552, 1569-70 (2013) ("[T]he ultimate touchstone of the Fourth Amendment is reasonableness."). Every day, people voluntarily surrender personal and seemingly-private information to transnational corporations, which exploit that data for profit. Few think twice about it, even though it s far more intrusive than bulk telephony metadata collection.

    There is no evidence that the Government has used any of the bulk telephony metadata it collected for any purpose other than investigating and disrupting terrorist attacks.

    While there have been unintentional violations of guidelines, those appear to stem from human error and the incredibly complex computer programs that support this vital tool. And once detected, those violations were self-reported and stopped. The bulk telephony metadata collection program is subject to executive and congressional oversight, as well as continual monitoring by a dedicated group of judges who serve on the Foreign Intelligence Surveillance Court. No doubt, the bulk telephony metadata collection program vacuums up information about virtually every telephone call to, from, or within the United States. That is by design, as it allows the NSA to detect relationships so attenuated and ephemeral they would otherwise escape notice. As the September 11th attacks demonstrate, the cost of missing such a thread can be horrific, Technology allowed al-Qaeda to operate decentralized and plot international terrorist attacks remotely. The bulk telephony metadata collection program represents the Government's counter-punch: connecting fragmented and fleeting communications to re-construct and eliminate al-Qaeda's terror network.

    "Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law." Boumediene, 553 U.S. at 798. The success of one helps protect the other. Like the 9/11 Commission observed: The choice between liberty and security is a false one, as nothing is more apt to imperil civil liberties than the success of a terrorist attack on American soil. The 9/11 Commission Report, at 395. A court's solemn duty is "to reject as false, claims in the name of civil liberty which, if granted, would paralyze or impair authority to defend [the] existence of our society, and to reject as false, claims in the name of security which would undermine our freedoms and open the way to oppression. American Comm'cns Ass'n, C.I.O. v. Douds, 339 U.S. 382,445 (1950) (Jackson, J., concurring in part and dissenting in part). For all of these reasons, the NSA's bulk telephony metadata collection program is lawful.
    I find it ironic that (1) a suit brought from the left (by the ACLU) has been rejected by a liberal judge (Pauley III); and (2) the same suit brought from the right (by Larry Klayman) has been accepted by a conservative judge (Leon).

    The opinion explicitly follows the logic of Robert Jackson - and is close in its tone and reasoning to the late 1940s and early 1950s opinions by Southern District judges Harold Medina and Irving Kaufman.

    Regards

    Mike
    Last edited by jmm99; 12-28-2013 at 08:43 PM.

  7. #87
    Council Member davidbfpo's Avatar
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    Default To stop another 9/11 we need MORE data

    Had the program been in place more than a decade ago, it would likely have prevented 9/11. And it has the potential to prevent the next 9/11. It needs to be successful only once to be invaluable. It also provides some confidence that overseas terrorist activity does not have a U.S. nexus. The metadata program did exactly that during my last days at the CIA this summer, in the midst of significant threat reports emanating from Yemen. By examining the metadata, we were able to determine that certain known terrorists were most likely not in phone contact with anyone in the United States during this specific period of concern.

    Personally, I would expand the Section 215 program to include all telephone metadata (the program covers only a subset of the total calls made) as well as e-mail metadata (which is not in the program) to better protect the United States. This is a personal view; it is not something the review group opined on or even discussed. Such an expansion should, of course, fall under the same constraints recommended by the review group.
    The author is:
    Michael Morell is the former acting director and deputy director of the Central Intelligence Agency and a member of President Obama’s Review Group on Intelligence and Communications Technologies.
    Link:http://www.matthewaid.com/post/71405...-report-of-the
    davidbfpo

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    Default If this from Morell be true,

    Personally, I would expand the Section 215 program to include all telephone metadata (the program covers only a subset of the total calls made) as well as e-mail metadata (which is not in the program) to better protect the United States.
    why then not expand the 215 program to include the metadata of all data packets transmitted and which can be intercepted - why stop with phone calls and emails ??



    The chart above has a LAN for the intervening physical layer. What I am using to reach you, right now, is just a bit more complicated - but all of it rests on data packets and their headers (basically "metadata").

    Regards

    Mike
    Last edited by jmm99; 12-28-2013 at 11:53 PM.

  9. #89
    Council Member davidbfpo's Avatar
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    Default To stop another 9/11 we need MORE data: No!

    Peter Bergen has a lengthy riposte to the suggestion of more data.

    The failure to respond adequately to these warnings was a policy failure by the Bush administration, not an intelligence failure by the U.S. intelligence community.
    The CIA itself also had its own spectacular failure in the run up to 9/11, which wasn't a failure to collect intelligence, but a failure of information sharing. The CIA had quite a bit of information about two of the hijackers and their presence in the United States before 9/11, which the agency didn't share with other government agencies until it was too late to do anything about it.

    Link:http://us.cnn.com/2013/12/30/opinion...11/index.html?
    davidbfpo

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    Default THAT'S what we need. Even more data.....

    First off, if you used TODAY'S technology and techniques against 2001 era technology and techniques, maybe they might be successful - maybe.

    But as we've had to learn the hard way over and over again (especially in both Iraq and Afghanistan), the bad guys are pretty smart too. The dumb ones have long ago been killed off.

    But just as a point, with all this metadata collection - what's to stop the bad guys from making phone calls for takeout on a somewhat regular schedule (say, every 15-20 calls as SOP), so therefore all NSA's multi billion dollar 'relationship tracking and analysis' now includes everybody who has just ordered pizza from a particular storefront?

    So, now if you happen to order a fair amount of takeout and it just so happens that one of your preferred locations is a 'terrorist' favorite, well, you may of just become a suspected evildoer.

    Maybe the NSA and the USDA will merge to start providing 'enhanced protection' to our food supply?

    As a btw, watch out for all the new tech contracts that are showing up where foreign corporations/multi-nationals are including penalties and conditions in new contracts governing the protection of their information by not having their data nodes touch any physical locations in the US (North America) and large parts of Western Europe.

    One last thought. Was at a small get together where a player in the tech biz got asked about the NSA effect on business for 2014. Person thought the best guess they had seen was a $30 bil+ negative effect, and that was if no more revelations came out. And then this last week the news over hardware and networking gear being compromised.

    Question got asked: "In monetary terms, where is the tipping point?

    Lost business, and worse, development of increased competition from other countries. Said to watch any AT&T attempt to acquire Vodafone, because NSA spying could easily become a serious issue.

    But one of the other folks made the point is that's not the greatest issue. The real issue falls under opportunity cost. We are seeing all types of domestic businesses which have a multi-national presence having to spend enormous amounts of resources (money is only one) going to extraordinary lengths to protect/encrypt client data from NSA spying.

    You can't get much new business when you are having to spend the great bulk of your resources protecting your existing business from the overreaching claws of the federal government.

  11. #91
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    Default Ryan Lizza's Quick Tutorial

    The Metadata Program in Eleven Documents (December 31, 2013; by Ryan Lizza):

    By the end of 2013, a great number of documents revealed the once-secret history of the National Security Agency’s telephone-metadata program, which, since 2001, has collected the phone records of virtually all Americans. Some were classified files that Edward Snowden, a former N.S.A. contractor, gave to reporters; some have been in the public record for years; some were recently declassified by the government; and others are judicial opinions released by judges now sorting through the constitutional issues raised by the revelations about the program. As we begin the New Year, here’s a short history of metadata collection and the Obama Administration’s response to it, as told by an assortment of the most important documents. ...
    Regards

    Mike

  12. #92
    Council Member davidbfpo's Avatar
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    Default A reminder about data sharing

    Lawrence Wright weighs in, a short article and a salutary reminder that the CIA & NSA had the data pre-9/11, they didn't share it:http://www.newyorker.com/talk/commen...co_talk_wright

    Try this:
    According to Pauley, the N.S.A. intercepted the calls, but couldn’t identify where Mihdhar was calling from. Relying on testimony by Robert Mueller, the former director of the F.B.I., Pauley concluded that metadata collection could have allowed the bureau to discover that the calls were being made from the U.S., in which case the bureau could have stopped 9/11.

    If he is right, advocates of extensive monitoring by the government have a strong case. But the Mihdhar calls tell a different story about why the bureau failed to prevent the catastrophe. The C.I.A. withheld crucial intelligence from the F.B.I., which has the ultimate authority to investigate terrorism in the U.S. and attacks on Americans abroad.
    davidbfpo

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    Default

    Not in the least bit surprised. It's the CIA's version of "target fixation" - they decided they were going to 'recruit' these guys, and it never occurred to them that they were fanatics - and turning them just wasn't in the cards.

    So as a result, all the metadata in the world wouldn't have helped any. If you put up barriers to sharing information at every turn, while at the same time continuing to accumulate more and more information at the same time, then end result just leads to a much larger logjam, and even more confusion.

    9-11 happened not because AQ was so competent, or because we weren't collecting all the metadata in the world in real time - it happened because the different alphabet agencies failed utterly and completely miserably at proper identification and analysis of the threat.

    If their (NSA) argument is that 9-11 could have been prevented by acquiring all this metadata, then they better come out with an explanation as to all the other 'failures' that occurred due to prior inaction/lack of communication on behalf of all the different federal agencies.

    Something tells me that's going to be an extremely long wait.....

  14. #94
    Council Member davidbfpo's Avatar
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    Default More data: hell no

    Not a headline I expected to see in The Guardian:
    The NSA's Tailored Access Operations show there's a way to be safe and get good intelligence without mass surveillance
    Link:http://www.theguardian.com/commentis...ations-privacy

    Two points are made of note IMHO:
    First, we now have evidence, albeit indirect, that the NSA might not have the cryptologic superpowers that some feared they might.

    Which brings us to the second encouraging bit of news, which is that if you are being individually targeted, you really don't stand a chance. The NSA's tools are very sharp indeed, even in the presence of communications networks that are well hardened against eavesdropping. How can this be good news? It isn't if you're a target, to be sure. But it means that there is no good reason to give in to demands that we weaken cryptography, put backdoors in communications networks, or otherwise make the infrastructure we depend on be more "wiretap friendly". The NSA will still be able to do its job, and the sun need not set on targeted intelligence gathering.
    The Guardian author is a US academic 'security expert' so the next link is from a group of US intelligence insiders who challenge the 'we need more data' claims. Some of the names I've heard of, I'd label them as dissenters - even more telling when you see how much US$ were wasted:http://consortiumnews.com/2014/01/07...at-went-wrong/
    davidbfpo

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    Default

    Next step in the process. Does POTUS want to know what's been going on, or does he just want to 'stay dumb'...
    Former NSA Insiders Ask President Obama To Let Them Brief Him On Everything Wrong With The NSA
    from the that-would-be-interesting dept
    As pretty much everyone has been sending over, a bunch of former NSA and intelligence community insiders who later went on to become whistleblowers (many of whom were then attacked or even prosecuted for their whistleblowing) have written quite an astounding open letter to President Obama, requesting that he allow them to brief him on the problems of the NSA. The letter goes a bit overboard on the rhetoric (which actually pulls away from its important underlying message, unfortunately), but the key points are clear. From what they've seen, they know that not only have the NSA's efforts violated the 4th Amendment and been ineffective, they have actually made it more difficult for the NSA to do its job properly.

    What we tell you in this Memorandum is merely the tip of the iceberg. We are ready – if you are – for an honest conversation. That NSA’s bulk collection is more hindrance than help in preventing terrorist attacks should be clear by now despite the false claims and dissembling.
    Here's the whole thing. Read the letter. It's blows the cover off.

    Between the NSA, CIA, and FBI - they give "incompetence" a bad name. It's like the late Casey Stengel said - "Can't anybody here play this game?"

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    Default Binney's Response to Morrell

    The memo cited by WITM (HT for citing it) responds to Review Group member and former CIA Deputy Director Mike Morell's December 19 op-ed in the Washington Post - “had the program been in place more than a decade ago, it would likely have prevented 9/11.” Says Binney et al:

    Khalid al-Mihdhar

    The poster boy for this PR ploy is Khalid al-Mihdhar one of the hijackers of AA-77, who had been communicating from San Diego with people in a known al-Qaeda terrorist safe house in Yemen. Al-Mihdhar had been on the radar of U.S. intelligence at least since 1999, when NSA picked up communications from a “terrorist facility” implicating him. In early 2000 he lived in San Diego, California, with fellow hijacker Nawaf al-Hazmi.

    NSA knew the telephone number of the safe house in Yemen at least by1996 and was, of course, keeping track of calls to it from the U.S. Would Mueller, Morell and Cheney have us believe NSA doesn’t know about caller ID? As William Binney has explained, automated systems take over when such calls are made and as long as you have one valid number you can obtain the other. Was it a case of gross ineptitude on NSA’s part; or was NSA deliberately withholding information linking al-Mihdhar to the known al-Qaeda base in Yemen?

    Richard Clarke, who was White House counterterrorism czar from 1998 through 2001, has told ProPublica that NSA had both the ability and the legal authority to trace calls from Mihdhar to Yemen. Clarke is correct. The targeting had been done; the numbers were known. The necessary authorities already existed.

    No warrant would have been required, had Director Hayden simply made use of the authorities available to him via Executive Order 12333, Part II, Section 2.C, by which he could have obtained approval from the Attorney General to target all communications with the safe house in Yemen regardless of origination or destination. It remains unclear as to why this was not done, especially in light of the recent revelation that Hayden did exercise that authority AFTER 9/11 in approving STELLARWIND.

    Michael Leiter, Director of the National Counterterrorism Center from 2007 to 2011, later acknowledged publicly that while monitoring the al-Qaeda switchboard safe house in Yemen (run by al-Mihdhar’s in-laws), NSA intercepted and transcribed seven calls from al-Mihdhar to the al-Qaeda switchboard. Leiter claimed that NSA didn’t figure out that the calls were coming from the U.S. Was Leiter never told that NSA knew about the switchboard and the calls from the U.S., but failed to share the intelligence with others?

    We have been focusing on NSA but would be remiss were we not to add that there were plenty of opportunities to alert the intelligence community to al-Mihdhar and al-Hazmi and their whereabouts before 9/11.

    For its part, the CIA had plenty of intelligence about al-Mihdhar and al-Hazmi but withheld critical pieces of it from dissemination outside CIA. This was firmly established in a Justice Department Inspector General report. The DOJ IG report added that, despite an attempt by a FBI detailee working at the CIA to share critical intelligence on the two hijackers, “that information was not released by the CIA to the FBI. We were unable to determine why this did not occur.”

    Richard Clarke was also deprived of the information. During an interview on August 11, 2011, he publicly accused former CIA Director George Tenet of personally barring the dissemination of intelligence on al-Mihdhar and al-Hazmi to him (Clarke) as well as to the FBI. Clarke suggested that CIA operations officers were planning to recruit the two terrorists to work for the CIA, and once the FBI learned they were on U.S. soil the CIA would lose jurisdiction and control.
    All of this is (IIRC) known stuff. The problem it evinces is not to solved by simply going after more of the same - in this case: more metadata.

    Regards

    Mike

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    Default As of today, we have a solution .....

    This afternoon, the federal government fired ("de-employed?") CGI Federal, those goofballs who brought us www.healthcare.gov

    We desperately need to have the NSA immediately hire CGI Federal as the prime contractor for all of the spying that NSA is doing on the American people.

    Within two years of CGI Federal's usual excellent work, we would most likely have to send all NSA employees back to remedial school to re-learn basic reading skills.

    Oh, well, only another $292+++ mil and counting down the drain.

  18. #98
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    Default Updates on Metadata

    Here are the links to the weekend's developments.

    First, from the White House:

    Second, some intelligent comments from Lawfare (not that I necessarily agree with all said by Ben et al, but they are intelligent):

    Third, another voluntary document dump by NSA; A New Batch of Declassified NSA Surveillance Documents (Wells Bennett):

    DNI Clapper Declassifies Additional Documents Regarding Collection Under Section 501 of the Foreign Intelligence Surveillance Act

    In June 2013, President Obama directed me to declassify and make public as much information as possible about certain sensitive programs while being mindful of the need to protect sensitive classified intelligence activities and national security. Since then, I have authorized the declassification and public release of numerous documents pertaining to the Government’s collection under Sections 501 (commonly referred to as Section 215 of the USA PATRIOT Act) and 702 of the Foreign Intelligence Surveillance Act.

    Today I authorized the declassification and public release of additional documents relating to collection under Section 501. Today’s release brings the total to approximately 2,300 pages of documents released by the U.S. Government, including 44 Orders and Opinions of the Foreign Intelligence Surveillance Court (FISC), 11 pleadings and other documents submitted to the FISC, 24 documents provided to Congress, and 20 reports, training slides, and other internal documents describing the legal basis for the programs and how they operate. In addition, I released more than 400 pages of documents detailing the existence of collection activities authorized by former President Bush. These documents were properly classified, and their declassification was not done lightly. These releases reflect the Executive Branch’s continuing commitment to make information about the implementation of Sections 501 and 702 publicly available when appropriate, while ensuring the protection of the national security of the United States. Because these documents include discussion of matters that must remain classified so as to protect national security, it was necessary to redact some information from them.

    The documents being released today comprise orders from the FISC approving the National Security Agency’s (NSA) collection and use of telephony metadata under Section 501. These orders provide additional information regarding the controls imposed by the FISC on the processing, dissemination, security and oversight of telephony metadata acquired under Section 501. This includes the Court’s imposition of additional controls in response to compliance incidents that were discovered by NSA and then reported to the FISC.
    Wells' article has the pdf links to the newly released documents. Clapper may be wondering why wasn't I told to do this, rather than lying like a rug before Congress.

    Fourth, this is a sleeper note - SCOTUS has granted Fourth Amendment review in two cellphone cases (not NSA metadata cases, but ... on what is NSA metadata based constitutionally ?), Riley v. California and US v. Wurie. They involve a doctrine known as “search incident to arrest", e.g, during a search incident to arrest, may the contents of a cellphone be examined without a warrant.

    Enjoy.

    Regards

    Mike

  19. #99
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    Default Privacy and Civil Liberties Oversight Board

    will probably issue a report on NSA today; a public meeting is scheduled for 1-2 pm today (PCLOB), reported inter alia by:

    NYT, Watchdog Report Says N.S.A. Program Is Illegal and Should End (by CHARLIE SAVAGE, JAN. 23, 2014):

    WASHINGTON — An independent federal privacy watchdog has concluded that the National Security Agency’s program to collect bulk phone call records has provided only “minimal” benefits in counterterrorism efforts, is illegal and should be shut down.

    The findings are laid out in a 238-page report, scheduled for release by Thursday and obtained by The New York Times, that represent the first major public statement by the Privacy and Civil Liberties Oversight Board, which Congress made an independent agency in 2007 and only recently became fully operational.
    ...
    The program “lacks a viable legal foundation under Section 215, implicates constitutional concerns under the First and Fourth Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value,” the report said. “As a result, the board recommends that the government end the program.”

    While a majority of the five-member board embraced that conclusion, two members dissented from the view that the program was illegal. But the panel was united in 10 other recommendations, including deleting raw phone records after three years instead of five and tightening access to search results. ... (much more in article)
    CNN, Privacy Board: NSA telephone records program illegal (Evan Perez, updated 12:34 PM EST, January 23, 2014):

    (CNN) -- The National Security Agency program that collects data on nearly every U.S. phone call isn't legal, a privacy review board said Thursday in a newly released report.

    Moreover, the five-member Privacy and Civil Liberties Oversight Board said it's been largely useless in thwarting terrorism.

    "We have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation," the board wrote in the report released Thursday.
    ...
    The board said it had identified only one instance in which the program helped authorities identify a terrorist in the last seven years. But the board said law enforcement would have found the suspect anyway, even without the NSA program.

    The board doesn't have any legal teeth, so its recommendations won't change government practices the way a court ruling might.

    But the findings are a stinging rebuke of President Barack Obama's legal defense of the program, in which the NSA tracks millions of telephone calls each day, harvesting the telephone numbers involved, the time calls are placed and how long they last. ...
    I'll post the link to the report, unless someone beats me to it.

    Lawfare has assembled a Catalog of the Snowden Revelations, which appear to be a huge resource for anyone looking at this mess in detail.

    Paul Rosenzweig, Verizon Transparency Reports (22 Jan 2014):

    Some highlights:

    •In 2013, Verizon received approximately 320,000 requests for customer information from federal, state or local law enforcement in the United States. The second highest requester — Germany, oddly enough — made nearly 3000 requests.

    •As a matter of policy (even though it is arguable as a matter of law) Verizon will only provide stored content in response to a warrant and geo-location data in response to a warrant or court order (but not a subpoena). [Current law appears to permit the collection of such information by subpoena -- a fact that many want to change.]

    •Verizon received between 1000 and 2000 National Security Letter requests last year [they may only report a range, not an exact figure.]

    •The report does not contain any information about FISA orders, which Verizon is prohibited from disclosing.

    [CORRECTED 12:45 PM EST -- Verizon requires a warrant OR order for geo-location data, not just a warrant]
    Finally, Jack Goldsmith, A Partial Defense of the Front-Page Rule (January 22, 2014), which is:

    That informal precept, long employed by the leaders of US administrations, is that we should not engage in any secret, covert, or clandestine activity if we could not persuade the American people of the necessity and wisdom of such activities were they to learn of them as the result of a leak or other disclosure. The corollary of that rule is that if a foreign government’s likely negative reaction to a revealed collection effort would outweigh the value of the information likely to be obtained, then do not do it.
    Jack has a longer version of it at the Hoover Institute (same title) and comments:

    The defense is partial because it is limited to “communications intelligence that takes place in the homeland or that affects US persons abroad.” (I do not rule out a broader defense; I just do not undertake it.) The analysis begins with the non-startling claim that “the counterfactual assumption of the Front-Page Rule is increasingly a reality: Secret intelligence actions — especially the ones that would most likely engender outrage, surprise, debate, or legal controversy — are increasingly difficult to keep secret.”

    It concludes:

    The overall goal of securing maximum possible legitimacy for secret government action, and something quite close to the Front-Page Rule, could be accomplished if the intelligence community, for each intelligence action related to the US homeland or US persons, had a concrete and comprehensive plan to respond to unauthorized public disclosure in a convincing way. Such a requirement is precisely what Rep. Jan Schakowsky has proposed for covert actions in Section 307 of the pending 2014 Intelligence Authorization Act. The requirement should be adopted more broadly, if not by statute then by presidential order.
    As usual, good work by Jack.

    Regards

    Mike

    PS: here we go, from the PCLOB homepage:

    Report on the Telephone Records Program Conducted under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court (238 pages in pdf)

    Statement by Elisebeth Collins Cook

    Statement by Rachel Brand
    Last edited by jmm99; 01-23-2014 at 07:57 PM.

  20. #100
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    Default POTUS May think he bought some breathing room, but he's wrong....

    Here's an article from Wired that explains some of the issues at stake....

    Link to article

    This one isn't ending anytime soon. The NSA can keep 'spinning' forever, but all they are doing is alienating those of us who use the Internet. And it's going to 'Balkanize' the Internet, in that we're eventually going to lose the commonality of the Internet. And that means a serious disruption to the ability to communicate across the Internet.

    We could end up with all sorts of separate Internets around the world, where there will be nations which won't even be willing to let 'our' (US) Internet talk to their Internet. How does this benefit us? Imagine the effects if this type of 'Balkanization' took effect right here on SWJ.

    I'm reminded of the stories regarding the situation occurring right before China (PRC) entry into the Korean Conflict. There are myriad stories of China's attempts to notify the Western allies that if the UN coalition drove too far North, they would become involved in the Korean Conflict.

    They didn't have anything like the Internet, and with no direct contacts, the word didn't get to the right people, and/or was not taken seriously. Lots of people paid the price for that lack of communication.

    Today, we have the most universal communications environment (the Internet) where not only can we communicate, but share both viewpoints and information. And the NSA (and the federal government, by extension) apparently want to do everything within their power to cripple, if not destroy that level of communication.

    It's maddening to see where this is potentially headed. I end up asking myself if NSA leadership wasn't 'accidentally' dropped on their head multiple times when they were children.

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