Reaper Drone used in Kandahar (Photo: UK Ministry of Defence)

On the heels of the drone that landed inside Iran recently, now there’s a report of another drone crash-landing in the Seychelles Islands:

One of the Air Force’s premier drones crashed Tuesday morning in the Seychelles, the Indian Ocean archipelago that serves as a base for anti-piracy operations, as well as U.S. surveillance missions over Somalia.

The crash of the MQ-9 Reaper comes roughly two weeks after a U.S. drone went down in Iran [...]

The Air Force acknowledged the crash at the Seychelles airport, and a spokesman for the service said the crash happened as the drone was landing. No one was injured.

This was a crash landing, rather than the apparently intact drone in Iran, which may have been taken over remotely. But it’s really not a surprise that US military planes are unreliable. In fact, a new report from the Pentagon on the F-35 program reveals a host of issues:

Technical and performance problems with the F-35 Joint Strike Fighter appear to be more numerous and more serious than anyone in the Department of Defense has been willing to concede publicly, according to a leaked Pentagon report obtained by the Fort Worth Star-Telegram.

The internal report marked “For Official Use Only” is written in carefully couched language, but clearly sounds alarms that some very large, troubling and costly to resolve technological and performance issues lie ahead for the already troubled and massively over budget F-35.

There are thirteen new design flaws that have been found, according to the internal report. I remember a previous report on the F-35 showed it had problems performing when it rained. Aside from the waste and fraud associated with military contracting, they apparently make incredibly faulty equipment.

Mitt Romney jumped on the Dick Cheney bandwagon by criticizing President Obama for not destroying the drone in Iran. Given the massive design failures we keep seeing crop up, how do we know that the White House didn’t try, and the self-destruct button fell off, or something?

Most expensive military in the world, folks.

U2 pilot Gary Powers: CIA's first captured drone man (photo Wikipedia)

In a press conference with Iraqi Prime Minister Nouri al-Maliki, President Obama calmly explained that his Administration asked Iran nicely for their drone back. “We’ve asked for it back. We’ll see how the Iranians respond,” Obama said. He added that the matter was classified, but the acknowledgement that someone wrote a note to the Iranian Lost & Found seeking one RQ-170 Sentinel stealth plane basically confirms the capture of the drone, which appeared on Iranian TV last week.

Secretary of State Hillary Clinton backed this up through a spokesman, saying that “We submitted a formal request for the return of our lost equipment…we do not expect them to comply.”

Iran also did some appeals about the drone in the past few days: they went to the UN Security Council.

Iran said Friday that it had formally complained to the United Nations Security Council about what it called the hostile and aggressive behavior of the United States in sending a sophisticated radar-evading spy drone over Iranian territory, one that Iran’s military said it had intercepted and captured last weekend.

The complaint, which appeared to have been made more for its propaganda value than for any Iranian hope of Security Council action, was announced a day after Iran showcased what it described as the captured drone on national television, as if it were a war trophy. Members of Iran’s Islamic Revolutionary Guards Corps were shown displaying a bat-winged aircraft on a platform bedecked with anti-American slogans and a mock American flag with skulls instead of stars.

The US is in a real bind here. [cont'd] The existence of the drone, now confirmed by the President, proves that they have engaged in at least covert intelligence operations inside Iranian air space. Given all of the other incidents alleged over the past several months, it’s simply unlikely that this ends with the drone. This includes the deployment of the Stuxnet worm to disable Iranian ballistic technology, the explosions at several missile sites and the assassinations of Iranian nuclear scientists on the streets of Tehran.

In this country, the argument over the drone focuses on whether Iran will be able to reverse engineer the technology and sell it to China and Russia, or if they sought the help of those regional powers in order to bring down the drone in a cyber attack. Less discussed is how the existence of the drone confirmed the shadow war over Iran, and by extension the numerous shadow wars in which the US is engaged all over the world.

U2 pilot Gary Powers: CIA's original drone man (photo Wikipedia)

In 25 years, John le Carré or his son or some new spy thriller author will write a hell of a novel based on our undeclared war with Iran. If they’re taking notes now, the next plot point will come when the US government acknowledges that the unmanned drone now in Iran’s possession belonged to the CIA:

The unmanned surveillance plane lost by the United States in Iran was a stealth aircraft being used for secret missions by the CIA, U.S. officials said Monday.

The officials said Iran’s military appears to be in possession of one of the more sensitive surveillance platforms in the CIA’s fleet, an aircraft that was shaped and designed to evade enemy defenses.

Oops!

The charitable explanation is that this was a reconnaissance plane gathering intelligence information about Iran’s nuclear activities. But we’ve also seen computer viruses disabling Iranian missile systems, the assassination of nuclear scientists on the streets of Tehran, even multiple explosions at key missile sites, one of which killed their top ballistic missile expert. This book has it all!

This is the same type of plane that the CIA used to surveil Osama bin Laden’s compound in Afghanistan. The question remains: did the CIA plane simply malfunction, was the plane shot down, or did the Iranians somehow take remote control of the aircraft and down it? The latter would be a nightmare scenario for US intelligence officials. It would mean their drone technology has been breached by a cyberattack, and that the fully intact drone would be available for the Iranians to study.

Quite an embarrassment for the CIA. Yet they will continue to man these missions, and the country will probably just go about its business and ignore it.

(photo: ScruffyDan and Breanne)

Amidst the inevitable 9-11 retrospectives, I feel like only the Los Angeles Times is putting the past ten years in the proper perspective. Because the longest-lasting legacy of the 9-11 attacks is clearly the terror industry it spawned. Over the weekend the LAT looked at the hundreds of billions of dollars being spent on absurd “security” projects, filling the pockets of contractors, and for little benefit:

“The number of people worldwide who are killed by Muslim-type terrorists, Al Qaeda wannabes, is maybe a few hundred outside of war zones. It’s basically the same number of people who die drowning in the bathtub each year,” said John Mueller, an Ohio State University professor who has written extensively about the balance between threat and expenditures in fighting terrorism.

Today’s entry from the LAT is even better, and something I feel we pay too little attention to. In the decade since 9-11, this has become a surveillance state, and the government collects enormous amounts of data on every man, woman and child in America, in all likelihood too much to process. We all know about this, but it’s important to see all that surveillance together in one package:

…the secret domestic intelligence gathering [...] is one of the most significant legacies of Sept. 11. U.S. law enforcement and intelligence agencies now collect, store and analyze vast quantities of digital data produced by law-abiding Americans. The data mining receives limited congressional oversight, rare judicial review and almost no public scrutiny.

Thanks to new laws and technologies, authorities track and eavesdrop on Americans as they never could before, hauling in billions of bank records, travel receipts and other information. In several cases, they have wiretapped conversations between lawyers and defendants, challenging the legal principle that attorney-client communication is inviolate.

[cont'd.]

Advocates say the expanded surveillance has helped eliminate vulnerabilities identified after the Sept. 11 attacks. Some critics, unconvinced, say the snooping undermines privacy and civil liberties and leads inevitably to abuse. They argue that the new systems have weakened security by burying investigators in irrelevant information.

“We are caught in the middle of a perfect storm in which every thought we communicate, every step we take, every transaction we enter into is captured in digital data and is subject to government collection,” said Fred H. Cate, a professor at the Indiana University Maurer School of Law who has written extensively on privacy and security.

We had one moment where this was subject to any debate at all, during the fight over the FISA amnesty legislation. But that was really about a small portion of the total data collection. Most of the surveillance remains a secret. Ron Wyden and Mark Udall tried to tease out a little more this summer, when they tried to get the intelligence community to admit to how they were misinterpreting the Patriot Act to allow for more data collection. But that never went anywhere. From NSA surveillance to national security letters to the AT&T room on Folsom Street in San Francisco, what bits and pieces we do know about point to a giant network Hoovering up every piece of information you let out into the world digitally.

I appreciate the LA Times highlighting this legacy. Nobody really questions why we’ve deprived American civil liberties to this degree, to protect the homeland from a threat that mirrors the threat posed by full bathtubs. Read the whole story for yourself. This has been an inexorable slide downward for ten years, and it shows no sign whatsoever of letting up.

a bag similar to the one Gareth Williams was found in (photo: mattk1979)

Remember that GCHQ/MI6 agent, Gareth Williams, who was found dead in a duffel bag last year?

At first, the narrative around his death centered on rumors he had been killed in a weird gay sex game. Amid such sensational reporting, other articles revealed Williams worked closely with the NSA on wiretapping Rashid Rauf, one of the men involved in the 2006 plot to bring down planes with small bottles of liquid. Williams’ work with NSA is all the more interesting when you consider American manipulation of that investigation and their subsequent squeamishness about sharing the intercepts.

But now there’s a new theory out now (from the Daily Mail, which was early to the now discredited sex crime theory): that Williams was killed by the Russian mafia because he was working on a way to track money laundering.

But now security sources say Williams, who was on secondment to MI6 from the Government’s eavesdropping centre GCHQ, was working on equipment that tracked the flow of money from Russia to Europe.

The technology enabled MI6 agents to follow the money trails from bank accounts in Russia to criminal European gangs via internet and wire transfers, said the source.

‘He was involved in a very sensitive project with the highest security clearance. He was not an agent doing surveillance, but was very much part of the team, working on the technology side, devising stuff like software,’ said the source.

He added: ‘A knock-on effect of this technology would be that a number of criminal groups in Russia would be disrupted.

‘Some of these powerful criminal networks have links with, and employ, former KGB agents who can track down people like Williams.’

The rest of the Daily Mail article on this hypes how scary and omnipresent the Russian mafia are.

But money laundering is money laundering. Terrorists do it. Organized crime does it. Spy services do it. Corporations do it (often legally). And banksters do it, among others.

And there doesn’t appear to be anything about this description to suggest the Russian mafia would be specifically targeted by the technology. Indeed, the description of their exposure as a “knock-on effect” suggests everything would be targeted (which sort of makes sense; you can’t track money laundering unless you track the “legitimate” part of finance that makes it clean).

Which is why I find this latest narrative–with its complete lack of attention on the technology, instead focusing exclusively on the Russian mob–so interesting. Because finding a way to track money laundering, of any sort, would just be a new way to do what US intelligence has already been doing with SWIFT.  [cont'd.]

Glomar Explorer (photo: US Gov't)

The government argues that, in spite of the fact that Saifullah Paracha’s Gitmo Detainee Assessment Brief was leaked in April, his lawyer, David Remes, cannot talk about it. Because if he did, we might conclude the DAB was real.

Granting Petitioner’s request could also be detrimental to the interests of national security, given the access to classified information that petitioners’ counsel enjoy but that members of the public at large do not. Reliance on the purported detainee assessments leaked to WikiLeaks in unclassified public writings by habeas counsel known to have access to classified information could be taken as implicit authentication of the reports and the information contained therein.

Of course, no one really doubts that it is real. But the government will claim that this public information remains classified to make sure Remes can’t mention the information. Remes can only represent his client, I guess, in court, not in the public sphere.

The problem, of course, is that the file contains obvious problems–if not out and out lies, then at least one gross misrepresentation, to wit: the government claims that Aafia Siddiqui “was detained in Afghanistan in mid-July 2008″ (see Detainee assessment, page 5).

There are certainly other areas Remes would be interested in discussing and having the freedom to argue to the public on behalf of his client, because that is not only what defense lawyers are supposed to do, but are ethically required to do in order to provide a zealous representation for their client.

The real extent of the conundrum this places Remes, and similarly situated Gitmo counsel in is demonstrated by this from the Blog of Legal Times at the National Law Journal:  [cont'd.]

Remes, the department said, cannot have unrestricted use of the documents that the government refuses to confirm or deny are authentic assessments of detainees. DOJ’s submission (PDF) expands on the scope of the guidance the department issued this month to lawyers in Guantanamo habeas cases.

In court papers, the DOJ theme is clear: the Justice Department over and over refused to confirm or deny that any individual WikiLeaks document is an official government record.

“Unfettered public use, dissemination, or discussion of these documents by cleared counsel could be interpreted as confirmation (or denial) of the documents’ contents by an individual in a position of knowledge, with corresponding harm to national security,” DOJ Civil Division attorney Kristina Wolfe said in court papers.

The government, Wolfe said, cannot acknowledge the authenticity of one document and then refuse to substantiate another document. The “very act of refusal would in effect reveal the information the government seeks to protect—the authenticity of the purportedly classified document,” Wolfe said.

This is beyond absurd, the DOJ is refusing to admit or deny, and limit the ability of lawyers to use, something the entire world is in on. They are treating the information like it is secret material under a Glomar exception to FOIA. And they do not even have the honesty to admit that is what they are doing, probably because an actual Glomar discussion would make them look like idiots. For those unfamiliar with Glomar, here is a description from the recent case of Wilner v. NSA:

The NSA and DOJ served and filed so-called Glomar responses—neither confirming nor denying the existence of such records—pursuant to FOIA Exemptions 1 and 3. Whether, as a general matter, agencies may invoke the Glomar doctrine and whether, in particular, the NSA may invoke the Glomar doctrine in response to a FOIA request for records obtained under the Terrorist Surveillance Program (“TSP”) are both questions of first impression for our Court.

We affirm the judgment of the District Court upholding the NSA’s Glomar response and hold that: (1) a Glomar response is available to agencies as a valid response to FOIA requests; (2) an agency may issue a Glomar response to FOIA requests seeking information obtained pursuant to a “publicly acknowledged” intelligence program such as the TSP, at least when the existence of such information has not already been publicly disclosed; (3) the NSA properly invoked the Glomar doctrine in response to plaintiffs’ request for information pursuant to FOIA Exemption 3; (4) the government’s affidavits sufficiently allege the necessity of a Glomar response in this case, making it unnecessary for us to review or to require the District Court to review ex parte and in camera any classified affidavits that the NSA might proffer in support of its Glomar response; and (5) we find no evidence in the record that the NSA invoked Glomar for the purpose of concealing activities that violate the Constitution or are otherwise illegal. We agree with counsel for all parties that we need not reach the legality of the underlying TSP because that question is outside of the scope of this FOIA action.

And, see, that is what is wrong with this craven charade by the DOJ – the information is about as publicly disclosed and known as could be imaginable under the circumstances. Not to mention that many of the activities the Gitmo Habeas counsel like Remes want to discuss freely are activities that are precisely “violate the Constitution or are otherwise illegal”.

The other thing of note, especially to readers of this blog, was the somewhat desperate attempt to distinguish the judgment of Judge Vaughn Walker in al-Haramain v. Bush (see page 7 here) by referring to that part of al-Haramain that discussed not-public classified information instead of the critical part of the opinion that was based on information well within the public sphere, such as the WikiLeaks material now is.

No matter how you look at this attempt to suppress and ignore the WikiLeaks material, it is bizarre and somewhat comical. The WikiLeaks Gitmo Detainee files genie is out of the bottle; it would behoove the US government to join the battle and arguments on the merits and facts instead of trying to cram the genie back in and play hide the bottle.

[Editor's Note: This post was started by Marcy, but finished by bmaz; so we are both responsible, whether good or bad!]

(photo: swisscan)

As I reported back on May 24, both here and at Truthout, a Department of Defense Inspector General for Intelligence report, declassified only months ago, corroborated the accusations of a former Acting Chief of the Asymmetrical Threats Division of Joint Forces Intelligence Command (JFIC) that his unit was told to stop tracking Osama bin Laden in the months prior to 9/11. But the IG report (PDF) cleared JFIC of any wrongdoing and declared, regarding charges JFIC withheld information when asked, that the intelligence agency had “provided a timely and accurate reply in response to the 9/11 Commission.”

Except, thanks to the former Acting Chief of the Asymmetric Threats Division, who released his original declassified letter of complaint to the DoD IG to Truthout, we can see that he never made a claim about information withheld from the 9/11 Commission. The complainant, who the IG dubbed “Iron Man” to protect his identity, said in his letter (PDF) that the “purpose” of his coming forward was “to formally complain” to the inspector general that “JFIC, when instructed in or before May 2002 to provide all original material it might have relevant to al-Qa’ida and the 9/11 attacks for a Congressional inquiry, intentionally misinformed the Department of Defense that it had no purview on such matters and no such material” (emphasis added).

The Congressional inquiry, published in December 2002 as “Joint Inquiry into Intelligence Community Activities Before And After The Terrorist Attacks Of September 11, 2001″ (large PDF), never mentions the Asymmetrical Threat Division, called DO5 in government documents, or that JFIC was tracking Osama bin Laden, or perhaps most explosively, that multiple briefings were given on possible targeting by Al Qaeda, as early as summer 2000, of the World Trade Center and the Pentagon.

Indeed, these buildings were considered the top targets by DO5, and the military intelligence analysts considered contacting WTC security and architectural/engineering staff, but held off, as Iron Man put it, “because of a command climate discouraging contact with the civilian community.”

Briefings were given on DO5′s work to other elements at U.S. Joint Forces Command (parent command to JFIC and DO5), to CIA, DIA, NSA, NCIS, and other agencies. Iron Man listed some of the names of who received the briefings in his letter of complaint, but they are redacted in the declassified version provided to Truthout.

The entire story and Iron Man’s documents are the subject of a new article at Truthout, authored by Jason Leopold and myself. Iron Man, a former deputy and then Acting Head of the Asymmetrical Threats Division, came forward for reasons of integrity, both professional and personal. Iron Man wrote to the IG in 2006:  [cont'd.]

I do believe that knowledge of the work done by DO5 would add to DoD’s understanding of its role in the events leading up to 9/11, and how to avoid future attacks. I have been falsely accused of revealing classified information on DO5′s work, when I am certain that information is not and has not been classified since 9/11, and I do want to see myself cleared of that false accusation. In addition, I and the deputy of that team, [redacted], especially carried the burden of knowledge of how close DoD came to bin Ladin and perhaps being able to reduce the number of lives lost on 9/11. I do not want that burden any longer.”

According to Truthout, both a Defense Department spokesperson and spokespeople for the House and Senate Intelligence Committees did not respond to calls for comment.

Why Does It Matter?

The entire 9/11 field of inquiry has been vilified, poisoned over the years by ridicule, sometimes fantastic conspiracy mongering, and fearfulness by journalists of approaching the material, lest they be branded as irresponsible or some kind of conspiracy freak. As a result, little work has been done to investigate, except by a small group of people, some of whom have raised some real questions, others who were intoxicated by the possibility of some giant conspiracy.

If anything, this story is about an intelligence and oversight scandal. It happens to concern 9/11, a very important and meaningful event in modern times. The official story says that no one knew that Al Qaeda was going to attack the World Trade Center or Pentagon, that there was an intelligence failure. But a whistleblower who was a primary participant in the intelligence work around Al Qaeda, whose department worked closely with the military command responsible for terrorism aimed against the United States (USJFCOM’s JTF-Civil Support), has come forward to say that narrative is not true, and to document how and why.

In the future, I’ll next take a look at the IG report itself, which concentrated on Iron Man’s allegations surrounding JFIC’s cover-up of its activities. The report, titled “Review of Joint Forces Intelligence Command Response to 9/11 Commission,” was either a totally inept job from start from finish — even getting the allegation wrong, as noted above — or it was a suborning of IG function to squelch misdeeds from being reported.

Congress should be looking at this pronto, or it will be assumed that its oversight function is a total joke, and the august Senators presiding over their oversight committees mere stooges.

hackin' (mosaic: Charis Tsevis)

Over the weekend, I expressed some curiosity over who hacked the IMF. They at least say it was a state actor.

Security experts said the source seemed to be a “nation state” aiming to gain a “digital insider presence” on the network of the IMF, the inter-governmental group that oversees the global financial system and brings together 187 member countries.

Tom Kellermann, a cybersecurity expert who has worked for the IMF and was in charge of cyberintelligence in the World Bank’s treasury team, said the intrusion could have yielded a treasure trove of non-public economic data used by the IMF to promote exchange rate stability, support balanced international trade, and provide resources to remedy members’ balance-of-payments crises. “It was a targeted attack,” said Kellermann, who serves on the International Cyber Security Protection Alliance.

[snip]

An internal memo issued on 8 June from the IMF’s chief information officer, Jonathan Palmer, told staff that suspicious file transfers had been detected and that an investigation had shown a desktop computer “had been compromised and used to access some Fund systems”. Significantly, he said that he had “no reason to believe that any personal information was sought for fraud purposes”.

The article mentions alleged Chinese hacks in three other places, suggesting they may be trying to cast blame.

But now this has gotten me thinking. If you were to talk about a country establishing a “digital insider presence” on computer networks looking to collect sensitive financial data, you could be describing this alleged hacker or … the United States’ wiretappers. And that’s even before we threaten to wiretap the SWIFT database so we can take what SWIFT won’t just give us.

I’m not suggesting, mind you, that we’re the ones who hacked IMF. Presumably we can just go and get what we want. But given that we are taking financial information on foreign powers that flows across the telecommunications backbones that transit our country, what’s to distinguish our spying from other countries’ hacking?

James Risen

The government appears to hope three time’s a charm. The last two times they subpoenaed James Risen in the case of Jeffrey Sterling, Judge Leonie Brinkema quashed the subpoena. But they’re trying again, this time to get him to testify at Sterling’s trial.

It appears likely they planned to do this all along and crafted the charges against Sterling accordingly. For example, they claim they need Risen to testify, in part, to authenticate his book and the locale where alleged leaks took place.

Risen can directly identify Sterling as the individual who illegally transmitted to him national defense information concerning Classified Program No. 1 and Human Asset No. 1. Because he is an eyewitness, his testimony will simplify the trial and clarify matters for the jury. Additionally, as set forth below, Risen can establish venue for certain of the charged counts; can authenticate his book and lay the necessary foundation to admit the defendant’s statements in the book; and can identify the defendant as someone with whom he had a preexisting source relationship that pre-dated the charged disclosures. His testimony therefore will allow for an efficient presentation of the Government’s case.

Locale issues stem from mail fraud charges that appeared ticky tack charges up to this point. But the government is now arguing that that information–as distinct from whether Sterling served as a source for the information at issue–is critical to these ticky tack charges. Which, it seems they hope, would get them beyond any balancing test on whether Risen’s testimony is crucial for the evidence at question. They also point to mentions in the indictment of an on-the-record article Risen did with Sterling, suggesting that at the very least they ought to be able to ask Risen about this at trial since he would not be protecting an anonymous source.

In other words, they crafted the indictment to be able to argue to Brinkema that on some matters, Risen’s testimony is crucial, and on others, it qualifies for no privilege.

Of course, they also have to argue that this subpoena is not harassment. If I were Risen’s lawyer, I’d argue crafting the indictment in such a way as to carve out areas to get Risen into court is itself harassment.

But that’s not all. The government tries to argue for the necessity of Risen’s testimony in one other way, one that is of particular interest. They say that Risen told his publisher that he relied on more than one CIA source for his work on MERLIN.  [cont'd.]

In addition, Risen’s own representations to his publisher demonstrate the importance of his testimony regarding the defendant’s identity. In his book proposal, Mr. Risen represented that, in writing his book, he spoke with more than one CIA officer involved in Classified Program No. 1. Consistent with these representations, moreover, the chapter of Mr. Risen’s book that includes information about Classified Program No. 1 appears to reflect the private conversations and inner thoughts of more than one individual.11 See, e.g., Exhibit A at p. 203. Risen’s testimony is therefore relevant to identifying Sterling as a source and to identifying the specific items of national defense information in his book for which Sterling was his source. Put simply, Risen’s testimony will directly establish that Sterling disclosed to him the national defense information about which he sought to write in a 2003 newspaper article, and which he ultimately included in his 2006 book. The jury should be permitted to hear that evidence in assessing whether the Government has met its burden of proving the defendant’s guilt beyond a reasonable doubt.

While this might support the necessity of Risen’s testimony on one hand (to identify what he got from Sterling and what he got from other sources), wouldn’t it also admit a selective prosecution defense? That is, if the government itself is arguing that Risen spoke to more than one CIA officer about MERLIN, then why are they only charging Sterling?

The answer may be because of the dispute about the accuracy of Sterling’s testimony. Remember, the government claims that Sterling lied to Risen about some aspect of MERLIN, presumably about whether or not the blueprints we gave to Iran had an obvious flaw that the Russian defector immediately identified. And they’re trying to use that claim–that Sterling lied–to argue that Risen doesn’t have an obligation anymore to protect his source.

Finally, whatever interest Risen has in keeping confidential his source for the national defense information at issue here, it is severely diminished by the fact that the defendant characterized some of that information in a false and misleading manner as a means of inducing Risen to write about it. See Ind. ¶ 18, 19(d). In short, the Indictment charges that the defendant perpetrated a fraud upon Risen. If “[s]preading false information in and of itself carries no First Amendment credentials” in the civil context, see Lando, 441 U.S. at 171, then it should carry no greater weight in a criminal prosecution.

They say that even while conceding that some of the information Sterling allegedly leaked to Risen is true.

The Indictment alleges that some of the information that appears in Risen’s book is national defense information – and thus is implicitly true – but also notes that some of the information contained therein is characterized in a false and misleading manner. See Ind. ¶¶ 18,19(d). The Government is not here either confirming or denying the accuracy of any particular fact reported in the book.

There’s a lot we can conclude from this filing–not least that the government seems to be abandoning the intent of the Attorney General guidelines on subpoenaing journalists (the guidelines are not mentioned once in the filing). But most of all, it seems we can conclude that the government doesn’t care so much that Sterling allegedly leaked this information–because they’re not charging the other CIA officers they appear to know leaked to Risen–but that Sterling was critical of the operation while he leaked the information.

(photo: Auntie P)

I’ve been reviewing the docket on Thomas Drake’s case to see whether it touches on the privacy concerns Drake had about NSA’s post-9/11 activities.

It appears it doesn’t, even while there was an ongoing dispute about whether or not Drake will have access to the materials he submitted to the DOD Inspector General in support of claims that the ThinThread program operated more effectively than the Trailblazer program that Michael Hayden chose to enrich SAIC with instead (the Judge ruled that material would be admissible, but not a formal whistleblower defense, which Drake wasn’t trying to do anyway).

There are a couple of reasons why the silence, in the legal filings, about privacy concerns is interesting (aside from the fact that it’s a focus of Jane Mayer’s article.

First, because the two-sentence summary of the conclusion of the DOD IG Report on Trailblazer and ThinThread that the defense provides in a filing doesn’t address privacy.

In 2004, after more than a year of fact-finding, the Inspector General issued its initial audit findings. In a report entitled, “Requirements for the Trailblazer and Thinthread Systems,” the auditors concluded that “the National Security Agency is inefficiently using resources to develop a digital network exploitation system that is not capable of fully exploiting the digital network intelligence available to analysts from the Global Information Network . . . (T)he NSA transformation effort may be developing a less capable long-term digital network exploitation solution that will take longer and cost significantly more to develop.” The NSA continued to support the “less capable” program and its successor.

Which suggests the IG Report may not have addressed the claim that, in addition to being less efficient at “connecting the dots” than ThinThread, Trailblazer also offered none of the privacy protections ThinThread had.

That’s important because the government argued that Drake couldn’t claim to be a whistleblower because, by 2007, the issues at hand were resolved. They’re arguing both that any whistleblower claims would be mooted because Turbulence, Trailblazer’s successor, integrated “significant portions” of ThinThread, and that the debate was “over” by 2007, when Drake was (according to the indictment) serving as a source for Baltimore Sun reporter Siobhan Gorman. . . . [cont'd.]

In or about December 2004, the DOD IG completed its audit of [Trailblazer], including the allegations raised in the complaint letter. The NSA responded in August 2004 and February 2005, stating that based on the judgments of NSA’s experienced technical experts, the allegations were unfounded. Nonetheless, NSA agreed to incorporate significant portions of [ThinThread] into [Trailblazer] as a result of the DOD IG recommendations, thus largely mooting the issues raised in the complaint. In addition, starting in late 2005 and early 2006, the NSA transitioned away from [Trailblazer] to [Turbulence], another corporate architecture solution for Signals Intelligence collection.

[snip]

Just as importantly, by 2007, the timeframe of the charges in this case, there was no imminent harm faced by the defendant, because [Trailblazer] had incorporated elements of [ThinThread], and also because NSA had transitioned away from [Trailblazer] to [Turbulence].

[snip]

The defendant’s actions had no impact in the debate regarding the efficacy of [Trailblazer and ThinThread], because NSA had begun transitioning to [Turbulence] by 2006. Put simply, the debate was over.

There’s a lot going on in this passage. Obviously, the government is trying to claim that since Drake was allegedly collecting information for Gorman in 2007, he couldn’t claim he was whistleblowing.

Mind you he was not claiming he was whistleblowing, in the legal sense. He was only trying to get the IG materials to prove that’s why he collected three of the documents he’s accused of willingly keeping; basically, he’s arguing that if he overlooked three documents out of 5 boxes worth originally collected for the IG–and did not retain the really classified materials–that he basically just overlooked the three documents, rather than willfully retained them.

And the government is playing funny with dates. After all, they say Drake served as a source for Gorman from February 27, 2006, to November 28, 2007. The key story about ThinThread Drake served as a source for was dated May 18, 2006. And one of the charges accuses Drake of obstruction for shredding other documents. So not only is the 2007 date bogus because it igonores debates ongoing in 2006, but the government suggests that either Drake would be guilty for illegally retaining information, or obstructing an investigation. Moreover, Drake maintains he inadvertently included the three IG-related documents in the several boxes of unclassified materials, so the fact the debate was over is pointless.

Moreover, the successor to Trailblazer, Turbulence, was suffering from the same management problems Trailblazer had, as the defense notes just after citing the IG Report. The government wants to pretend the shift from Trailblazer to Turbulence ended the complaints about management problems, but it didn’t.

But then there’s the way the government portrays the IG complaint: efficacy. As I laid out the other day, there are four ways, Gorman’s sources claim, that ThinThread was better than Trailblazer:

The program the NSA rejected, called ThinThread, was developed to handle greater volumes of information, partly in expectation of threats surrounding the millennium celebrations. Sources say it bundled together four cutting-edge surveillance tools. ThinThread would have:

* Used more sophisticated methods of sorting through massive phone and e-mail data to identify suspect communications.

* Identified U.S. phone numbers and other communications data and encrypted them to ensure caller privacy.

* Employed an automated auditing system to monitor how analysts handled the information, in order to prevent misuse and improve efficiency.

* Analyzed the data to identify relationships between callers and chronicle their contacts. Only when evidence of a potential threat had been developed would analysts be able to request decryption of the records.

In other words, privacy was just one of three ways ThinThread was better than Trailblazer, according to Gorman’s sources.

But that’s not the aspect the government seems to address. That is, the government seems to be saying that, because Turbulence adopted some of the approaches of ThinThread that made it more efficient at analysis, Drake can’t complain. The suggestion is (though we can’t know because of the secrecy) privacy is not, like efficacy, an adequate reason to blow the whistle. Neither privacy, nor the Constitution.

And that’s interesting for two more reasons. First, because the government references a notebook of documents Drake provided that had nothing to do with the IG Report.

There was, for example, a notebook of documents provided by the defendant, many of which had nothing to do with the IG’s audit, but this notebook was destroyed before the case began, and after the IG completed its audit.

Is it playing games with the scope of the audit? That is, did Drake provide materials on privacy, which the IG didn’t include within the scope of its report? If so, the IG’s destruction of the notebook, in violation of DOD’s document retention policy, is all the more interesting.

Then, finally, the debates about privacy continued into 2007 and 2008. In August 2007, specifically, Mike McConnell nixed a Democratic version of the Protect America Act because it required the government to tell FISA judges what the plan for minimizing US person data is and allowed the judges to review for compliance. Debates on how to fix PAA continued throughout the fall and into the following year, with Russ Feingold and Sheldon Whitehouse both trying to make real improvements on the minimization requirements.

The government seems to want to say that Drake’s privacy concerns aren’t a valid whistleblowing concern. Because, I guess, government officials aren’t allowed to whistleblow about citizens’ rights.