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Schrodinger's Classified Info: Trump Argues John Bolton's Book Is Both False & Classified

from the not-how-it-works,-chief dept

As you’ve probably heard by now, earlier this week, the Justice Department went to court to sue former National Security Advisor John Bolton regarding his book (which is highly critical of the President), entitled The Room Where It Happened. Lots of people have lots of opinions regarding Bolton, Trump, and the book, but I’m going to focus specifically on the legal dispute here, which in some ways is reminiscent of the lawsuit filed over Ed Snowden’s book, which meant that the government can take all the proceeds of that book.

The key issue in both of these lawsuits is that when you work in the US intelligence community, you are required to sign a lifetime contract that forbids publishing any manuscript or giving any speech related to your intelligence work, without the content first going through “pre-publication review.” For years (going well beyond this administration) there have been claims that pre-publication review is used not just to protect classified information (its official purpose), but also to hide unclassified but potentially embarrassing information from public view. Indeed, there is a separate lawsuit, filed by Timothy Edgar and some other former intelligence officials challenging the pre-publication review process as a form of prior restraint and of creating chilling effects against speech, and thus against the 1st Amendment. In April, the judge dismissed that case.

The court rejected the prior restraint argument by noting that the plaintiffs signed a contract, and you can absolutely waive your 1st Amendment rights by contract if you so choose. The court is a bit more open to the chilling effects claim, but eventually rules against them, citing other cases that more or less said these kinds of government contracts are fine and not in violation of the 1st Amendment. It also suggests that if there’s a remedy to be sought here, the proper venue is through legislative change, rather than through the judicial system. In summary, the court says:

Plaintiffs have thus fallen short of plausibly demonstrating that the challenged policies raise constitutional concerns under either of the two vagueness frameworks. The Court notes that they have also failed to link the redactions and excisions from their own works that they allege were arbitrary and discriminatorily motivated to a challenge to the PPR regimes as a whole…. Nor have they responded to Defendants? observation that no Plaintiff has pursued judicial review of a PPR decision, as they are entitled to do…. While the Court appreciates the delay in publication that judicial review could entail, Plaintiffs have not demonstrated that such a delay on its own renders the PPR regimes constitutionally infirm, nor that review in a specific case would not be a more effective means of reviewing the alleged vagueness of a given PPR policy than a facial challenge. In any event, because none of the avenues that Plaintiffs have pursued for their vagueness claim are viable, the claim will be dismissed.

The plaintiffs in that case have since appealed.

With Bolton, there have been widespread reports that the administration deliberately slow rolled the pre-publication review process in order to try to keep the book away from the public prior to the November election. There have been reports of ongoing back and forth between the publishers and the administration, with some clear frustration expressed by the publishers/Bolton that pre-publication review is being used to stifle the book for the time being, rather than to actually scrub it for any classified material.

Given all that, it was announced that the book was going to come out anyway, leading the DOJ to sue. The lawsuit is just against Bolton, and not against the publisher, Simon & Schuster. The is, perhaps, a recognition that Simon & Schuster never signed a contract with the government, and preventing the publisher from releasing the book would have a much stronger prior restraint claim. Instead, the lawsuit just targets Bolton, and while (as with the Snowden book) it seeks to take the proceeds of the book, it also wants the court to order Bolton to tell Simon & Schuster to delay the book release, because of his own breach of contract.

That lead many people to claim that the government was not trying to stop the book from being published… However, that view did not last long. The day after the original complaint was filed, the government filed an application for a temporary restraining order and preliminary injunction. A hearing on this matter is happening today (about the time this post is being published).

From what a variety of legal experts have said it seems likely that (1) the book will still get published, but also that (2) the proceeds of the book will not go to Bolton, but will go into the US Treasury. Maybe. That said, there are some oddities here, and reading through the exhibits includes with the TRO application paints quite a story, suggesting that the administration is deliberately lying about whether or not the book actually contains any remaining classified material.

It does appear that Bolton and the government went through a fairly extensive pre-publication review over the past few months with a reviewer, Ellen Knight. Bolton and Knight met multiple times over the course of the past few months, with Knight detailing everywhere she found classified information, and Bolton responding and revising the work. Bolton ended up cutting out large chunks of the book in response to Knight’s concerns about classified information. On April 27th, after yet another round of revisions, Knight told Bolton that she had no more concerns about classified info being in the book. At that point Bolton was told to expect to get the clearance. But that didn’t come. Instead, the government at first seemed to ghost him. According to Bolton’s lawyers:

When Ambassador Bolton asked when he could expect to receive the pro-forma closing letter confirming that the prepublication review process had been concluded, Ms. Knight cryptically replied that her “interaction” with unnamed others in the White House about the book had “been very delicate,” and that there were “some internal process considerations to work through.” She nonetheless thought the letter might be ready that afternoon but would “know more by the end of the day.” They even discussed whether the letter should be transmitted by electronic transmission or by him physically picking up the hard copy. It has now been more than six weeks since the final revisions to the book, and Ambassador Bolton has not received the letter to which Mrs. Knight thought he was entitled. His inquiries of Ms. Knight as to when he would receive the letter documenting her agreement that the book contains no classified information have been answered with stiff and formal replies that she had nothing new to report. He had not heard from her, or anyone else at the NSC, since May 7….

What apparently happened after May 7th was that the White House magically found someone new, Michael Ellis (a political appointee who has not historically done pre-publication review), who claimed (magically) that the book was still full of classified info. Full paragraphs of it. He claims. Full paragraphs that (according to Ellis) “if made public, reasonably could be expected to cause damage, serious damage, or exceptionally grave damage to the national security of the United States.” This despite Knight saying the exact opposite.

Of course, as all of this is happening, basically every major publication ran excerpts or discussions of the book. There was the article in the Washington Post talking about how Trump asked China’s President to help him win the election (and supported Xi’s use of concentration camps) based on reading a copy of the book. Tthe Wall Street Journal ran an excerpt talking about those same interactions with China, and the NY Times ran a story claiming that the impeachment inquiry should have looked at more than just Ukraine. Though, the NY Times also published a piece that was highly critical of the book, noting that it “swings between tedious and slightly unhinged” (which some might argue is an apt description of Bolton himself).

The President himself has gotten into the game claiming that the book “is a compilation of lies and made up stories” and that it is “pure fiction.” Of course, that argument undermines the crux of the lawsuit and the push for the restraining order. Indeed, the filing for the TRO says there will be “irreparable harm” if the book is published — which sort of conflicts with the “full of lies” claim:

The book Defendant intends to publish on June 23 contains classified information, including information classified at the Confidential, Secret, Top Secret, and Top Secret/SCI levels. This means it contains instances of information that, if disclosed, reasonably could be expected to cause serious damage, or exceptionally grave damage, to the national security of the United States…. And Mr. Ellis specifically concluded, moreover, that ?certain passages in the draft manuscript . . ., if disclosed, will damage the national security of the United States.?

Indeed, the conflict between the claims of falsity and classification, oddly, enable some level of confirmation to some of the events Bolton describes. Specifically, in the excerpt published in the WSJ, Bolton says that he would print Trump’s exact words to China’s Xi regarding helping Trump win re-election in November, “but the government’s prepublication review process has decided otherwise.” As Bradley Moss, who specializes in national security law, the fact that the administration wants that conversation classified is itself confirmation that the claimed conversation happened.

So there’s a bit of a Schrodinger’s cat issue here regarding the statements — and whether they’re lies, in which case, they’re not classified, or they’re truth, in which case they might be — but can they possibly be both at the same time?

Another key point, as raised by Marcy Wheeler, details a different sort of contrast: the one comparing Bolton to another Trump National Security Advisor: Michael Flynn. Indeed, Wheeler makes the compelling case that it’s pretty clear that what Flynn did seems to be a much bigger crime than what Bolton is accused of doing here:

This all comes at the same time as the government is making extraordinary efforts to prevent Mike Flynn from being punished for secretly working for a frenemy country while getting classified briefings, and calling up the country that just attacked us in 2016 and discussing how Russia and the Trump Administration had mutual interests in undermining Obama?s policies.

The same DOJ that is magnifying Bolton?s risk for an Espionage prosecution found nothing inappropriate in Flynn calling up the country that had just attacked the US and teaming with that hostile country against the current government of the United States.

But, even odder still: to support the claims that the Flynn prosecution was in error, the White House has been declassifying various transcripts of Flynn’s calls to Russian ambassador Sergey Kislyak, and Wheeler contrasts such declassification with the demands to keep information classified regarding Bolton (by the very same people):

But it?s not just in the courts where DOJ is working hard to protect the guy who really did harm the US. In an effort to sow the propaganda case for Mike Flynn, the Trump Administration has been on a declassification spree, including ? by Ratcliffe ? the transcripts of some (but not all) of Flynn?s calls with Sergey Kislyak, something that has never been done before. Significantly, the claims that Nakasone and Ratcliffe make in their declarations in the Bolton case, especially with regards to disclosing SIGINT burns the collection going forward, were clearly violated when Ratcliffe declassified the transcripts.

[….]

But the comparison of the claims Mike Ellis is making about Trump?s third National Security Advisor with the treatment given his first ? the guy who actively sold out his country rather than did so with his inaction ? only serves to emphasize how Trump subjects what traditionally gets called national security to loyalty.

The greatest ?national security? sin a Trump Administration official can commit, this comparison shows, is disloyalty to Donald Trump.

Of course, there is a clear consistency in all of this: if it makes the President and his supporters look good, it’s okay. If it criticizes the President, it’s not okay. That, as always, seems to be the fundamental driving force behind this administration.

The one interesting wildcard in this is the judge the case was assigned to, Royce Lamberth (who you may remember for the benchslap he gave a copyright troll). It seems almost every litigator I know has an opinion about Lamberth, and they agree that if there’s one thing that Lamberth hates more than anything else: it’s the DOJ trying to over-classify shit. I have now heard from five separate lawyers making claims along those lines, and he’s even complained publicly at a conference about this issue, in which he called out intelligence scandals in which judges rubber stamped claims of classification to block FOIA requests.

In other words, the DOJ may have pulled their worst nightmare as a judge in this particular case — especially given the odd nature of the pre-publication review here (approving it, only to have someone else step in and say “nope.”) You never know what will happen, of course, but hopefully we get to see Judge Lambreth in full government skeptic mode.

Filed Under: 1st amendment, classified info, donald trump, john bolton, nsa, pre-publication review, prior restraint, the room where it happened
Companies: simon & schuster

Analyst Who Accidentally Leaked NSA Software Given Five More Years In Prison Than General Who Handed Classified Info To His Mistress

from the 'somebodies'-score-another-win-over-the-'nobodies' dept

An NSA employee will be headed to prison for inadvertently exposing the agency’s malware stash.

Nghia Hoang Pho, 68, of Ellicott City, Maryland, and a naturalized U.S. citizen originally of Vietnam, was sentenced today to 66 months in prison, to be followed by three years of supervised release, for willful retention of classified national defense information. According to court documents, Pho removed massive troves of highly classified national defense information without authorization and kept it at his home.

Pho’s leaks were different than other NSA leaks. First reported last year by a couple of press outlets, the NSA TAO (Tailored Access Operations) tools were exposed to the outside world by anti-virus software , which correctly labeled it as malware. These malware samples drew the attention of hackers who then targeted Pho’s laptop to exfiltrate NSA hacking tools. The NSA exploits and malware made their way into the public domain, kicking off a crippling wave of ransomware that has since been repurposed to mine for cryptocurrency on infected computers.

The DOJ’s press release has a lot to say about the seriousness of the offense and the seriousness of the FBI in tracking down government employees who carelessly handle classified code. In particular, it offers up this self-serving garbage to justify locking someone up for taking their work home with them.

“Pho’s intentional, reckless and illegal retention of highly classified information over the course of almost five years placed at risk our intelligence community’s capabilities and methods, rendering some of them unusable,” said Assistant Attorney General Demers. “Today’s sentence reaffirms the expectations that the government places on those who have sworn to safeguard our nation’s secrets. I would like to thank the agents, analysts and prosecutors whose hard work brought this result.

This sentence does nothing of the sort. To those not closely watching these things (i.e., people who’d never read this press release in the first place), it may seem like the DOJ is serving up justice. But for those of us who’ve seen certain people — like General Petraeus — mishandle classified info in a much more egregious fashion (giving his mistress, and biographer, access to top secret info) and walk away from it pretty much unscathed, this statement from the DOJ is not just hollow. It’s hypocritical.

Even the judge handling the case saw through the DOJ’s double standard. Josh Gerstein of Politico reports the judge had plenty to say about the DOJ’s prosecutorial efforts, especially in light of the fact Pho never directly gave anyone else access to the NSA’s classified hacking stash.

[O]ne of the most striking aspects of Tuesday’s sentencing was [Judge George] Russell’s lament that top government officials seem to have escaped with little more than a slap on the wrist for engaging in similar behavior.

Russell seemed particularly perturbed that former CIA Director David Petraeus managed to get probation after admitting he kept highly classified information in his home without permission, shared it with his girlfriend and lied to investigators.

“Did he do one day in prison?” the clearly frustrated judge asked. “Not one day. … What happened there? I don’t know. The powerful win over the powerless? … The people at the top can, like, do whatever they want to do and walk away.”

It’s nice to hear this from a judge, even if there’s nothing the judge can actually do about it. Russell could only sentence Pho, not clawback Petraeus’ unearned freedom and post-conviction cakewalk. Judge Russell might be less willing to help the government apply its sentencing double standard in the future, but his statements to the DOJ have probably only assured the agency will try to steer clear of his court in the future.

Filed Under: classified info, david petraeus, double standards, high court, leaks, low court, nghia hoang pho, nsa, nsa tao, sentencing

Reality Winner Will Spend Five Years In Jail For Leaking Info Government Officials Released Publicly

from the putting-heads-on-pikes dept

The opening sentence of US Attorney Bobby L. Cristine’s statement on leaker Reality Winner says it all, even if it’s not exactly how Cristine wants it to be read.

The sentence rendered today is the longest received by a defendant for an unauthorized disclosure of national defense information to the media.

This is the longest sentence ever imposed under the Espionage Act. And it’s being imposed for a leaked document confirming much of what had been been discussed publicly by intelligence officials: that Russia interfered with the 2016 election. Winner will spend five years in jail for leaking information other government officials have published in full.

Espionage charges are easy to prosecute. The defendant’s options are limited. They’re unable to raise defenses about serving the public interest or acting as whistleblowers. This was document turned over to a media agency. This was not a document detailing crucial national security matters being handed to agents of an unfriendly government.

Winner isn’t a martyr, but neither is she the despicable villain portrayed in the DOJ’s official statement on its easy win. Twice the statement reminds us her act was not a “victimless crime.” In case we’re unable to get the point, it’s delivered in all caps once. Bold print highlights various incidentals the US Attorney thinks are particularly nefarious — like Winner KNOWINGLY disseminating a document with TOP SECRET printed across the top of it even though it EXPOSED SOURCES AND METHODS and it will apparently take the US intelligence community years to recover.

The DOJ’s happy it won this case. The press release is devoid of the usual dry language about US codes violated and other boilerplate. Instead, the bulk of it sounds defensive, as if the DOJ expects backlash and is hoping to get out in front of it. This is all extraneous, but it’s all in there for a reason: there’s a message being sent to leakers and whistleblowers and it isn’t subtle. [emphasis and ALL CAPS in the original]

Winner’s exceptionally damaging disclosure was not a spontaneous, unplanned event, but was the calculated culmination of a series of acts. She researched whether it was possible to insert a thumb drive into a Top Secret computer without being detected, and then inserted a thumb drive, WHICH THE GOVERNMENT NEVER RECOVERED, into a Top Secret computer. She researched job opportunities that would provide her access to classified information. At the same time, she searched for information about anti-secrecy organizations, and she celebrated claimed compromises in U.S. classified information.

Approximately eight days before she started work as a contractor with a security clearance, Winner installed sophisticated software tools on her computer designed to render her internet activity anonymous and untraceable. Two days before starting work, Winner captured an image of a webpage listing eight “securedrop” addresses for media outlets seeking leaked information. Then, her first day on the job, she sent messages mocking her security training. On that same day, Winner signed a non-disclosure agreement with the government in which she promised to keep secret classified information, and attested she was accepting this responsibility “…without any mental reservation or purpose of evasion.” Yet, she wrote shortly thereafter that she was “#gonnafail” her polygraph examination when asked if she had “ever plotted against” the government. She claimed to hate America. When asked, “…you don’t actually hate America, right?” she responded, “I mean yeah I do its literally the worst thing to happen on the planet.”

On and on it goes in this fashion until it reaches a slightly more subtle point, but one that’s far more important.

Resolving this case with a plea agreement involving a lengthy prison sentence is the best resolution for the United States. The United States has to balance the need for prosecution with the damage that further disclosure of classified information at trial might cause. Proving the government’s case at trial would require the government to declassify or risk disclosure of TOP SECRET//SCI information. This plea affords the government a substantial benefit in protecting from disclosure information that is still classified. The FBI and members of the Intelligence Community affected by Winner’s treachery and betrayal have concurred in this judgement.

The DOJ needed this plea deal. It needed it far more than it needed anything else. During the prosecution, the government went out of its way to block any submission of classified/top secret documents as evidence, negatively affecting Winner’s ability to mount a successful defense. This explains the aggressiveness of the prosecution. Winner needed to believe she’d spend a couple of decades behind bars in order for her to accept the longest sentence ever handed to a document leaker under the Espionage Act.

If the government’s inner workings have a chance of being exposed in open court, the DOJ is either going to turn the screws or cut the defendant loose. With the administration engaged in a war on leakers, the DOJ wasn’t going to cut its losses by settling for a slap on the wrist. Winner gets the full force of the DOJ’s prosecution because anything less might have made the national security apparatus a tiny bit more transparent.

Filed Under: classified info, espionage act, leaks, reality winner, russia, sentencing, whistleblowing

Privacy And National Security Concerns Play Second Fiddle To Administration's Attempts To Control The Narrative

from the privacy-violations-are-coming-from-inside-the-house! dept

Rep. Devin Nunes, who heads the House Intelligence Committee, has been all over the privacy/security map in recent weeks. He’s publicly decried the supposed “illegal surveillance” of former National Security Advisor Mike Flynn while trying to avoid undercutting the NSA programs and presidential authority that make it all this spying possible.

His hypocrisy knows no bounds. Nunes has repeatedly suggested NSA spying activities (under Executive Order 12333) should receive even less oversight. Now he’s complaining the spy infrastructure he wholeheartedly supports is too big and dangerous, now that it’s resulted in Mike Flynn’s departure.

But it goes even further than that. Nunes is utilizing an informal network of what he calls “whistleblowers” to leak him details of investigations. Then he immediately goes and discusses these investigations in public. Barton Gellman (who handled some of Snowden’s leaks) points out just how far Nunes has gone in defending both Mike Flynn and Trump White House.

Three named officials—two Trump appointees and arguably his leading defender on the Hill—appear to have engaged in precisely the behavior that the president describes as the true national security threat posed by the Russia debate…

The offense, which in some cases can be prosecuted as a felony, would apply even if the White House officials showed Nunes only “tearsheet” summaries of the surveillance reports. Based on what Nunes has said in public, they appear to have showed him the more sensitive verbatim transcripts. Those are always classified as TS/SI (special intelligence) or TS/COMINT (communications intelligence), which means that they could reveal sources and methods if disclosed. That is the first apparent breach of secrecy rules. The second, of course, is the impromptu Nunes news conference. There is no unclassified way to speak in public about the identity of a target or an “incidentally collected” communicant in a surveillance operation.

When communications of US persons is “incidentally” collected, the information is minimized and the names redacted. Gellman points out “customers” (other government agencies/officials) can ask for the names to be revealed. But the policies governing dissemination mean the NSA doesn’t just hand out this info to anyone. The fact that Nunes knew whose communications were swept up along with the targets means the real breach of privacy isn’t the NSA’s incidental collection, but the unmasking of those incidentally-collected. That means the same White House that’s so upset about Trump being spied on is the one asking for an unminimized copies of the collected communications.

The names could only have been unmasked if the customers—who seem in this case to have been Trump’s White House appointees—made that request themselves. If anyone breached the president’s privacy, the perpetrators were working down the hall from him. (Okay, probably in the Eisenhower Executive Office Building next door.) It is of course hypocritical, even deceptive, for Nunes to lay that blame at the feet of intelligence officials…

This raises an even more interesting question about what’s going on at the White House. Officials are asking for unminimized reports on incidental collections. But for what reason? Gellman theorizes it may be some form of an unofficial backdoor search.

There is no chance that the FBI would brief them about the substance or progress of its investigation into the Trump campaign’s connections to the Russian government. Were the president’s men using the surveillance assets of the U.S. government to track the FBI investigation from the outside?

If so, it’s an interesting way to obtain information a government agency (the FBI) won’t share with you: get it from the intelligence agency that’s feeding it to the FBI. If this is what’s happening, it’s another example of the Trump White House — and those subservient to it — ignoring national security rules to further their own ends. This abuse likely isn’t unusual, but it’s definitely hypocritical for those engaging in it to make comments about the sanctity of privacy and/or national security while doing damage to both.

Filed Under: backdoor search, classified info, devin nunes, donald trump, incidental collection, leaks, mike flynn, minimization, nsa, surveillance 12333

Vice President Fails To Demand An FBI Investigation After His Private Email Account Is Hacked

from the investigations-are-for-other-people dept

I can only assume Mike Pence is so self-absorbed he’s literally incapable of recognizing his own hypocrisy. Either that or he’s completely shameless.

After engaging in a presidential campaign where much was made of Hillary Clinton’s private email address/server, Pence went to court to prevent his AOL emails from being released to public records requesters.

I can only assume Pence is now welcoming an FBI investigation into his use of an AOL account.

Clinton routed sensitive documents through an insecure personal server. Pence is doing the same. While Clinton was advised against setting up her own personal email server, it’s likely Pence has had an AOL account for a long, long, long time. Sure, there’s a difference between taking matters into your own hands and leaving your email security up to a third party, but the end result is no different: both were using private accounts to handle government business — business that included the classified and sensitive information.

The main difference here is we know Pence’s email account has been hacked. There were attempts made on Clinton’s email server, but nothing out there suggests any of those attacks were successful. Considering Pence’s earlier adamance about Clinton’s careless email habits, it’s probably time to invite the FBI to take a look at his careless handling of sensitive documents.

Emails released to IndyStar in response to a public records request show Pence communicated via his personal AOL account with top advisers on topics ranging from security gates at the governor’s residence to the state’s response to terror attacks across the globe. In one email, Pence’s top state homeland security adviser relayed an update from the FBI regarding the arrests of several men on federal terror-related charges.

Cyber-security experts say the emails raise concerns about whether such sensitive information was adequately protected from hackers, given that personal accounts like Pence’s are typically less secure than government email accounts. In fact, Pence’s personal account was hacked last summer.

Politicians routinely have to eat their words. They’re rarely shy about casting the first (and several follow-up) stones, even while their own sins run dark and deep. But a guy who has an email investigation to at least partially thank for his new position should be following an own-words-based diet for the next several months. If nothing else, it might (MIGHT!) push him towards the occasional second thought before hitting “tweet.”

If Pence were intellectually honest, he’d replace Clinton’s name with his own in the statement he made to “Meet the Press” last year.

“What’s evident from all of the revelations over the last several weeks is that Hillary Clinton I operated in such a way to keep her my emails, and particularly her my interactions while Secretary of State with the Clinton Foundation governor of Indiana, out of the public reach, out of public accountability,” Pence said. “And with regard to classified information she I either knew or should have known that she I was placing classified information in a way that exposed it to being hacked and being made available in the public domain even to enemies of this country.”

Pence’s former office is releasing a small subset of his AOL emails. The Indy Star has obtained around 30 of them, but the governor’s office says it’s withholding a majority of them because they’re either (a) deliberative documents or (b) too damn sensitive to be released publicly.

If the governor’s office won’t release them, perhaps the hackers will. Sunlight is the best disinfectant, but sometimes an outsider kicking in the door and throwing open the blinds is the only way to achieve the transparency the public deserves.

Filed Under: classified info, emails, fbi, foia, hacked, hillary clinton, mike pence, private servers, public records

Government Again Shows Its Inconsistency On Punishing The Mishandling Of Classified Documents

from the please-fill-out-IR-451(a)-'INTERNAL-RETALIATION'-form-completely dept

Mishandling classified material can result in a variety of punishments, depending on who you are. If you’re a presidential candidate, the routing of hundreds of sensitive documents through an unsecured, private email server might result in a few conversations with the FBI, but not in any criminal charges. If you’re a retired general, routing classified material to your biographer/mistress might result in criminal charges, but not any time served. If you’re a whistleblower taking your complaints to the press, you’ll likely see some jail time to go along with your destroyed career.

And if you’re a Marine Corps officer trying to warn others of trouble headed their way, you’re more likely to be treated like Jason Brezler than Hillary Clinton, Gen. David Petraeus, or even former CIA Director Leon Panetta.

Brezler is facing dismissal from the Marine Corps for mishandling a classified document — one containing information about an allegedly corrupt Afghan police chief who had already been kicked off a US base by Brezler himself.

[T]he local police chief, Sarwar Jan, turned into a problem.

“Sarwar Jan, he was a threat to not only the Afghans but our own Marines,” Brezler says.

The chief was maybe linked to the Taliban. He was also alleged to be a pedophile who preyed on local boys — something alarmingly common among Afghan warlords.

Recently there’s been a debate about whether U.S. forces should tolerate Afghan allies who keep kids at their barracks. Back in 2010, there was no policy. Brezler couldn’t fire Sarwar Jan, but he could kick him off the base.

“We put Sarwar Jan on the next helicopter. And, once he left, we could have probably had a parade the next day through the bazaar. The Afghans were absolutely elated,” he says.

After returning stateside, Brezler received an email from an officer located in Afghanistan informing him that Sarwar Jan was once again residing in the base Brezler had kicked him out of — and had brought a group of underage boys with him. Brezler attached a classified report detailing the allegations against Jan and hit “Reply All.”

The allegations about Jan weren’t all that unusual. The sexual and physical abuse of minors is considered standard operating procedure by many Afghans in powerful positions.

Rampant sexual abuse of children has long been a problem in Afghanistan, particularly among armed commanders who dominate much of the rural landscape and can bully the population. The practice is called bacha bazi, literally “boy play,” and American soldiers and Marines have been instructed not to intervene — in some cases, not even when their Afghan allies have abused boys on military bases, according to interviews and court records.

In some cases, Marines have been told to ignore the behavior. In other cases, they’ve been punished for trying to prevent it. Brezler’s concerns about Jan’s arrival at another base were never addressed. Instead, the Marines chose to go after him for sending a classified document to other Marines. Brezler even went through the proper channels, reporting himself for mishandling sensitive information. He was told it was just “minor spillage” — something that happened occasionally but generally without serious repercussions.

Less than three weeks after Brezler’s warning went out (and was apparently ignored), a 17-year-old Afghan male who had been living in Jan’s quarters stole a weapon and killed three unarmed Marines. When the Marine Corps resisted turning over information to the victims’ families, Brezler sought the help of Rep. Peter King. King took this info to the media and that’s when things got worse for Brezler.

And that’s when the U.S. Marine Corps got serious — about investigating Jason Brezler.

“Almost a year had gone by from the time, he had moved on, the Marine Corps had moved on,” says lawyer Mike Bowe. “A news story comes out that reveals that he’s talking to Congressman King about these murders, and three days later he is sent to a Board of Inquiry to be kicked out of the Marine Corps.”

The inquiry was retaliation, Bowe says, for embarrassing the Marine Corps brass. He says there were hundreds of similar cases of “spillage” the same year, and only two were punished. A Pentagon inspector general’s report concluded it was not retaliation.

At this point, the Marine Corps is offering him an honorable discharge — a “thanks, but no thanks” for his attempt to warn his fellow soldiers about the long list of allegations against police chief Sarwar Jan. Brezler sued for full reinstatement as a Marine and the discharge has been put on hold pending a possible jury trial later this year.

There are a handful of disturbing aspects of the Marine Corps’ dismissal of Brezler, not the least of which is its decision to ramp up its efforts to rid itself of him after it had been publicly embarrassed by a US congress member. It also highlights the absurdity — and danger — inherent to the military’s weirdly-selective non-interventionist policy: one deployed by an outside force playing World Police within its borders (decidedly interventionist) that draws the line at preventing the sexual abuse of minors on its bases by local officials.

The decision to go after the messenger — one that self-reported his mishandling of sensitive information — shows the government, by and large, cares more about protecting itself from embarrassment than solving its problems.

Filed Under: classified info, jason brezler, punishment, whistleblowing

Lead Investigator For CIA 'Torture Report' Explains Why It Was Necessary To Hijack A Copy Of The 'Panetta Review'

from the keeping-the-CIA-(slightly-less-dis)honest dept

The Guardian has published a long report detailing Senate staffer Daniel Jones’ experience with the CIA while acting as the Senate Committee’s chief investigator during the compilation of the “Torture Report.” While much has already been written about the CIA’s actions during this time, the Guardian’s multi-part piece gives the public an insider’s look at the effort the agency went through to disrupt the preparation of the report.

The process started off on the wrong foot. It was the New York Times, not the agency itself, that initiated the Senate’s examination of the CIA’s counterterrorism efforts.

In November 2005, a senior CIA official named Jose Rodriguez destroyed 92 videotapes depicting the brutal 2002 interrogations of two detainees, Abu Zubaydah and Abdel Rahim Nashiri. Rodriguez’s tapes destruction remained a secret to his congressional overseers for two years, until a 6 December 2007 New York Times article revealed it; they barely even knew the CIA taped interrogations at all.

Daniel Jones spent the next five years digging through any documentation he could pry from the CIA’s hands and slowly came to the conclusion the agency had lied to everyone — including two consecutive presidents — about its interrogation practices.

One document contained crucial information that proved Jones’ conclusion: the Panetta Review. But the CIA didn’t want to hand it over. The Senate’s agreement with the CIA meant that the agency controlled access to the documents in its possession — documents it provided extremely limited access to. Jones worked in a single room set up by the CIA for examination of documents and it only dropped files into the shared drive Jones could access if it felt like it. It also removed files periodically without warning or explanation.

In March 2010 Jones and his colleagues started noticing that they had difficulty accessing documents they knew they already had. Simple search terms weren’t retrieving certain records anymore.

“We noticed they were gone right away,” Jones said.

It would have been easy to disappear documents, even in substantial amounts. The agency had provided millions of pages. The only way it could have happened was for the agency to have removed the information from a computer network the CIA set up for the Senate that Jones did not know the agency could access

When asked about this, the CIA first blamed the tech team it had hired to set up the system used by the CIA to provide access to Senate staffers. Then it blamed the White House. Finally, it took a look at itself in a closed, opaque investigation and managed to come to the conclusion that the CIA itself was to blame for the missing documents.

This was still early on in the process and was on top of other pre-existing headaches. The DOJ’s decision to open its own investigation of torture allegations should have been good news, but instead, it just created more problems for Jones and the Senate Subcommittee.

Typically, when the justice department and congressional inquiries coincide, the two will communicate in order to deconflict their tasks and their access. In the case of the dual torture investigations, it should have been easy: Durham’s team accessed CIA documents in the exact same building that Jones’s team did.

But every effort Jones made to talk with Durham failed. “Even later, he refused to meet with us,” Jones said.

[…]

The lack of communication had serious consequences. Without Durham specifying who at CIA he did and did not need to interview, Jones could interview no one, as the CIA would not make available for congressional interview people potentially subject to criminal penalty. Jones could not even get Durham to confirm which agency officials prosecutors had no interest in interviewing.

The 6,700-page report was finished by the end of 2012. By mid-2013, the CIA was already disputing the content and the conclusions reached by the Senate investigation while still stonewalling on declassification. Jones, who had uncovered a wealth of lies delivered to the Bush administration, was somewhat surprised to see the current head of the CIA (John Brennan) continuing the CIA tradition with President Obama, delivering briefings to him that contradicted the contents of the Senate report, but agreed with the CIA’s internal investigation: the so-called “Panetta Review.”

Having observed this, Jones decided to break the rules the CIA had set down for Senate staffers.

Inside the small room in Virginia the CIA had set up for the Senate investigators, Jones reached for his canvas messenger bag. He slipped crucial printed-out passages of what he called the Panetta Review into the bag and secured its lock. Sometime after 1am, Jones walked out, carrying his bag as he always did, and neglecting to tell the agency security personnel what it contained. After years of working together, no one asked him to open the bag.

Jones didn’t leak the document. Nor did he just hand it over to the Senate Subcommittee. Instead, he placed it in the Subcommittee’s safe to ensure the CIA didn’t control the only copies of the Panetta Review. It was a move that needed to be made. The CIA had zero interest in releasing the documents and, shortly after the Torture Report’s release, it somehow managed to “accidentally” destroy the agency’s only copy of it.

Jones’ removal of the review led to the CIA and Senate demanding criminal investigations of the other party and the eventual punishment of one person involved in the investigation: staffer Alissa Strazak, the other lead investigator during the compilation of the report. She found her promotion to General Counsel of the US Army blocked by senators critical of the report’s findings. The DOJ never filed any charges. The FBI won’t even read the report. And the CIA has emerged pretty much unscathed and possibly looking forward to having a new president to lie to in 2017. (Although if it’s Trump, it may not have to lie quite as frequently…)

Filed Under: cia, classified info, daniel jones, panetta review, senate intelligence committee, torture report

Gen. Petraeus Leaked Classified Info To Journalists, Sent Sensitive Documents To Non-Secure Email Accounts

from the DOJ-points-to-lightly-stung-wrists-as-proof-justice-has-been-served dept

General Petraeus, despite turning over “little black books” filled with classified info to his mistress/biographer (Paula Broadwell), is now serving out his mild non-sentence by suffering through high-paying speaking gigs. The government — “punishing” one of its own — ended up implying there was somehow a difference between Petraeus and others who turned over classified information to journalists.

But there appears to be zero difference between Petraeus and whistleblowers who received much harsher treatment. Josh Gerstein of Politico reports:

“There is a recorded conversation between Petraeus and, inter alia, Washington Post reporters, which, based on the information and belief of your affiant, occurred in or about March 2011,” Special Agent Diane Wehner wrote. “In the conversation, Petraeus stated, ‘I would really love to be on background as a senior military officer.’ Later in the recording, Petraeus discusses sensitive military campaigns and operations, some of which, on the basis of a preliminary review … is believed to contain classified information, including information at the Top Secret level.”

Apparently, the difference between having your life destroyed and having your life slightly inconvenienced depends on how you’ve portrayed the government to the press with your links. Leaks made in support of government activity have always received a warmer reception.

The government may believe Petraeus is no common leaker, but it’s also going to have to extend its hypocritical shrug to encompass the phrase, “He’s no Hillary Clinton.”

The FBI affidavit also indicates that investigators believed Petraeus “likely” agreed to help Broadwell gather classified information from others. In 2011, Broadwell wrote to an Army lieutenant colonel seeking details about his unit’s operations. The officer replied by asking for “a good SIPR number,” referring to a government network for handling classified information.

“If you have classified material, Gen Petraeus has been gracious enough to allow me to have you send the storyboards and material to his SIPR account; I’ll pick them up as soon as you send the word! I’ve copied him on this email,” Broadwell wrote.

Yes, General Petraeus sent classified info to several email addresses (both Broadwell and Petraeus used more than one account, along with burner phones, to communicate), none of which appear to have been designated as secure.

The FBI apparently pushed for felony charges under the Espionage Act, but the DOJ overrode it, allowing Petraeus to walk away with two years probation on a lesser “mishandling” charge. I’m sure the FBI feels the same thing will happen again with Clinton, no matter what it uncovers during its investigation of her private email server usage. According to former AG Eric Holder, Petraeus wasn’t treated differently than any of the other leakers the DOJ has prosecuted over the past several years. It just looked that way because of reasons Holder won’t discuss.

“There were some unique things that existed in that case that would have made prosecution at the felony level — and conviction at the felony level — very, very, very problematic.”

In the context of Petraeus’ actions, “problematic” seems to be another way of saying “embarrassing.” Holder’s statement to Politico tries to portray the prosecution as lacking in evidence to make a felony charge stick. But the evidence appears to be there. The only thing lacking was the will to do so, both by the DOJ and the administration guiding its moves.

Filed Under: classified info, david petraeus, espionage act, high court, leaking, low court

US Officials Have No Problem Leaking Classified Surveillance Information… As Long As It Fits Their Narrative

from the hyprocisy-in-action dept

In the past few days there have been a flurry of stories about the Russian plane that crashed in the Sinai peninsula, which investigators reportedly think may have been caused by a bomb. Notably, anonymous US officials have been leaking to journalists that they believe ISIS is involved, and it’s actually a perfect illustration of the rank hypocrisy of the US government’s position on the Edward Snowden disclosures.

Why do US officials allegedly have a “feeling” that ISIS was involved? According to multiple reports, US intelligence agencies have been intercepting ISIS communications discussing “something big” in the region last week.

CNN published a report on Tuesday based on anonymous sources that ISIS was likely responsible despite the fact that “no formal conclusion has been reached by the U.S. intelligence community and that U.S. officials haven’t seen forensic evidence from the crash investigation”:

The signs pointing to ISIS, another U.S. official said, are partially based on monitoring of internal messages of the terrorist group. Those messages are separate from public ISIS claims of responsibility, that official said.

Huh, weren’t we told by Snowden’s critics that it was terrible and traitorous when sources tell journalists that the US has surveillance capabilities that, in addition to collecting information on millions of innocent people, also target alleged terrorists?

Just today, the Daily Beast reported this:

The U.S. intelligence community intercepted a signal from an ISIS-affiliated group in the Sinai Peninsula before a Russian jet crashed there on Saturday that warned of “something big in the area,” two officials told The Daily Beast. An adviser familiar the U.S. intelligence said a call was made between members of Wilayat Sinai, which a U.S. official said Thursday was one of the “most potent” branches of ISIS. The conversation did not mention downing an airplane, but a defense official said comments could be tied to the crash. (emphasis mine)

Here the leak is even more specific: the little-known name of the subgroup targeted by surveillance (Wilayat Sinai), including their general location (Sinai) and the time of the interception (sometime before the crash).

And just in case anyone wants to pretend that every other surveillance capability of US intelligence is classified but somehow this investigation is not, the New York Times clarified in their article on Wednesday:

“There’s not one thing that we know what is saying to us, ‘This is a bomb,’ ” said one of the American officials, who like others spoke on the condition of anonymity because they were discussing intelligence considered preliminary and classified. “It’s just all indications of this or that, and not clear right now.” (emphasis mine)

So many people criticized Edward Snowden for allegedly leaking information showing that the US targeted suspected terrorists in Pakistan and Yemen with their surveillance capabilities. Keep in mind, Snowden did not publish any of this information himself; it was the decision of major newspapers that found the information was newsworthy. It was also vague information that was months or years old, and in the vast majority of cases not the focal point of the stories — which was the information collected on millions of innocent people at the same time.

In this case, US officials have no problem at all leaking classified information about top secret surveillance capabilities which target terrorists, since it fits within their narrative. It’s also more specific information that’s more timely, involving an investigation that is still ongoing. Even the most virulent commentators who claim that Snowden was a traitor for leaking classified information had no problem publishing similarly leaked information about this potential terrorist attack.

We can almost be certain that there will be no leak investigation and no one will be punished — despite the fact that by the government’s own interpretation of the law, this is clearly illegal. (Not that we believe anyone should be prosecuted for leaking, but if the US is going to prosecute, they should do so uniformly and not cherry-pick who they want.)

This has happened over and over since the Snowden revelations started and we can only assume it’ll happen again. That’s because the US government’s policy on leaks has never really been about enforcing the law, or that leaks are so damaging to national security. It’s about controlling the story the media tells.

Reposted from the Freedom of the Press Foundation

Filed Under: classified info, isis, leaks, officials, surveillance, us

CIA Director's Personal Email Account Breached By Hackers… Who Find Official Documents Stored In It

from the FWD:FWD:FWD:-classified-data-[KEEP-SAFE!] dept

LOL. Cybersecurity.

The Central Intelligence Agency will make one of the biggest overhauls in its nearly 70-year history, aimed in part at sharpening its focus on cyber operations and incorporating digital innovations, CIA director John Brennan said.

Brennan said he is creating new units within the CIA, called “mission centers,” intended to concentrate the agency’s focus on specific challenges or geographic areas, such as weapons proliferation or Africa.

The CIA director said he also is establishing a new “Directorate of Digital Innovation” to lead efforts to track and take advantage of advances in cyber technology to gather intelligence.

WHERE DO I SIGN UP?!?

A hacker who claims to have broken into the AOL account of CIA Director John Brennan says he obtained access by posing as a Verizon worker to trick another employee into revealing the spy chief’s personal information.

Using information like the four digits of Brennan’s bank card, which Verizon easily relinquished, the hacker and his associates were able to reset the password on Brennan’s AOL account repeatedly as the spy chief fought to regain control of it.

Brennan: leading from the rear. “Digital innovations,” “cyber operations,” and a CIA director who forwards work email to his AOL account.

Now, there is very little anyone can do to prevent hacking via social engineering. There are too many weak links, many of which will probably be attending some mandatory training classes on account security in the near future. Not that it will help. As long as nearly every company uses the same list of personal info for identity verification, social engineering will continue to crack open secured accounts.

The hackers posed as Verizon techs. After producing a fabricated “Vcode” (an identifier that “verifies” a person as a Verizon employee), Verizon gave up the information the hackers needed to gain control of Brennan’s AOL account: PIN, backup phone number, email address and last four digits of his credit card.

They then called AOL to tell them they were locked out of “their” account. The information handed over by Verizon answered all of AOL’s verification questions. And in they went, uncovering — among other things — the SF-86 application Brennan had filled out to apply for security clearances. They also discovered — and posted — screenshots of a spreadsheet apparently listing names and social security numbers of intelligence officials.

There’s been no document dump, so it’s unclear at this point how many work emails and documents Brennan forwarded to himself or if he used his AOL account to conduct official business. The thing is, Brennan should have known this was a terrible idea, no matter how convenient it was for him to peruse CIA docs from an email account he could access anywhere. He may not have been able to prevent the social engineering attack, but he could have ensured his personal email account only contained personal email. And I’m pretty sure the CIA frowns on taking official documents off-site, even if “Forward email” is used rather than an attache case.

Filed Under: breach, cia, classified info, hacked, john brennan