Former NSA Lawyer Asks Google To 'Forget' All Of Techdirt's Posts About Him

from the making-a-point-about-bad-laws dept

Former NSA counsel and surveillance/security state hypeman Stewart Baker has had just about enough of Techdirt making "distorted claims" about his statements for the "purposes of making money." To counter this, he's sent a "right to be forgotten" request to Google stating the following:

https://www.techdirt.com/blog/?tag=stewart+baker

Reason this link violates the right to be forgotten:

This link is inappropriate. It compiles stories making many distorted claims about my political views. Political views are a particularly sensitive form of personal data. The stories are written by men who disagree with me, and they are assembled for the purpose of making money for a website, a purpose that cannot outweigh my interest in controlling the presentation of sensitive data about myself.

Baker's certainly not hoping for Techdirt's posts on him to be de-listed (although I imagine he'd indulge in a chuckle or two if they went down). He's mocking the ridiculousness of the "right to be forgotten" ruling Google is now attempting to comply with. He has submitted other requests as well over such things as outdated photos and "inaccurate" statements as the kickoff to an informal "hack" of a bad law.

I feel bad for Google, which is stuck trying to administer this preposterous ruling. But that shouldn't prevent us from showing quite concretely how preposterous it is.

I propose a contest. Let's all ask for takedowns. The person who makes the most outrageous (and successful) takedown request will win a "worst abuse of privacy law" prize, otherwise known as a Privy.

Stewart's takedown request targeting Techdirt is mostly tongue-in-cheek, but it does highlight the sort of abuse that should be expected when government bodies attempt to force the internet to bend to their will. Granting a "right to be forgotten" pretty much ensures that a majority of the requests will be no more legitimate than Baker's.

Multiple advocates for the law have compared it with the infamous DMCA takedown notice, something that has also been routinely abused. But at least the DMCA takedown carries with it the (almost never enforced) charge of perjury for issuing bogus takedowns. The RTBF form simply asks for a copy of the submitter's identification. There's nothing in it to discourage abuse of the system. If you don't like something someone has said about you on the web, just fill out a webform.

While we at Techdirt disagree with most of what Stewart Baker says, at least his position on privacy remains consistent. His "Privys" -- an "award" given to the worst or most hypocritical abuser of privacy laws -- have generally been awarded to worthy recipients, usually people who tend to think these laws exist to save them from their own embarrassments.

As for the "right to be forgotten," it appears as though requests may be forwarded to Chilling Effects. On June 6th, this test post showed up in the database.

A request has been made to remove one or more links from a search page under European "right to be forgotten" rules, following Google Spain SL, Google Inc. v Agencia Espanola de Proteccion de Datos, Mario Costeja Gonzalez.

The body of the post contains nothing but the word "TEST" but this seems to indicate that an attempt will be made to publish takedown attempts. At this point, it's impossible to say how much information will be redacted, or if the European Commission will even allow this sort of transparency. Google is also toying with appending messages to the bottom of search results pages indicating that link(s) may have been removed due to "RTBF" requests. If this works like DMCA requests do, then a link to Chilling Effects database will be provided. These measures won't necessarily deter abuse, but they will make it much easier to track.

Filed Under: abuse, censorship, europe, nsa, right to be forgotten, right to forget, search engines, stewart baker
Companies: google

Former NSA Lawyer Thinks American Bar Association Should Be Equally Outraged By Chinese Hacking Of Attorney-Client Communications

from the because-all-hacking-is-equal,-whether-it's-your-own-govt-or-not dept

Stewart Baker is still defending the NSA, but his latest piece advancing the agency's cause deploys a particularly disingenuous argument. He feels the American Bar Association acted hypocritically when it sent a letter to the NSA asking it to respect attorney-client privilege.

Baker begins his questionable attack by presenting actual hypocrisy in defense of his forthcoming argument.

When the Justice Department’s indicted six People’s Liberation Army hackers, it directly accused the PLA of stealing “privileged attorney-client communications related to Solar World’s ongoing trade litigation with China.”

This is not a surprise to knowledgeable observers. Chinese attacks on large U.S. law firms have been widely acknowledged, and last summer the American Bar Association condemned “unauthorized, illegal intrusions into the computer systems and networks utilized by lawyers and law firms.” But the ABA flinched from actually mentioning China or the PLA in the resolution…

When the DOJ made a lot of ridiculous noise with its indictment, it only managed to further highlight the double standard the US deploys in its foreign relations. The NSA's hacking of Huawei's servers went unmentioned, as well as its numerous interception programs (both for hardware and communications) currently in place worldwide.

Baker believes the ABA's silence on China's hacking efforts is hypocritical in light of its letter to the NSA on the subject of attorney-client privilege. This letter was the result of another leak that showed the agency had offered a solid "whatever" when an Australian intelligence agency informed the NSA that it was listening in on privileged communications between Indonesian clients and American lawyers. Baker pretends to cede some ground on the ABA's complaint before arriving at his supposedly damning "point."

Fair enough. But it’s now been three days since we saw a much more direct accusation that the PLA was spying on privileged attorney-client communications in the US.

Who’s taking bets on whether the American Bar Association will be as quick to call out the Chinese government as it was to call out its own?

This is Baker's knockout punch, apparently, one that only manages to come within several inches of its target.

Of what possible use would it be for the ABA to call out the Chinese army? Even if US attorney communications were being intercepted, there's very little the Association could hope to accomplish with a strongly-worded letter. As the NSA's defenders often point out, foreigners are not provided with the same protections as natural citizens. The same undoubtedly goes double for China, which isn't exactly extending a great deal of rights to its own citizens.

Sure, the ABA could make a lot of noise about Chinese spying, but limiting its complaints to an agency of its own government makes more sense. Baker seems to want Americans to be more offended by something everyone expects the Chinese government to be doing, rather than by their own government doing things they never would have expected.

Baker also seems to be childish enough to believe that pointing out the wrongdoing of others somehow excuses the wrongdoing of the agency he's defending. This is particularly galling considering how often the NSA reminds world citizens that they simply aren't protected by US law and that their communications and data are fair game. The ABA addressed the real issue -- spying on communications historically awarded confidentiality by US statutes -- and the real problem in its letter. Its silence on the issue of Chinese spying isn't hypocrisy. It's reality. By petitioning its own government, it was able to have its complaint addressed. Complaining about China would be nothing more than angrily yelling into the void. The DOJ doesn't mind being greeted with little more than faint echoes, but those on the outside of government agencies aren't going to be nearly as reassured by the sound of their own reflected voices.

Filed Under: attorney-client, china, hacking, lawyers, nsa, stewart baker, surveillance
Companies: aba, american bar association

Based On NSA Defender's Arguments Against Public Debate, The 4th Amendment Should Be Classified

from the sources-and-methods! dept

One of the key points that we keep hearing from defenders of the intelligence community concerning the Snowden leaks, is that all these revelations about what the NSA is spying on is providing important info to "our enemies" who can then use that information to evade the watchful eyes of US intelligence. That's silly for a variety of reasons, with a big one pointed out by Conor Friedersdorf at The Atlantic. Based on that same logic, you could argue that the Fourth Amendment of the Constitution should be classified as top secret for revealing the same kind of information. Cue the sarcasm:

Notice how much the Fourth Amendment tells our enemies. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated," it states, "and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The Framers are usually considered patriots. Yet they gave traitors and criminals in their midst such powerful knowledge about concealing evidence of skullduggery! Today every terrorist with access to a pocket Constitution is privy to the same text. And thanks to the Supreme Court's practice of publishing its opinions, al-Qaeda need only have an Internet connection to gain a very nuanced, specific understanding of how the Fourth Amendment is applied in individual cases, how it constrains law enforcement, and how to exploit those limits.

He makes the basic point that you can more or less apply this kind of test to all of the claims by NSA defenders. He points to regular Techdirt favorite, Stewart Baker, who is still apoplectic about the idea that we're having a public debate about any of this, because:

"You can't debate our intelligence capabilities and how to control them in the public without disclosing all of the things that you're discussing to the very people you're trying to gather intelligence about," he said. "Your targets are listening to the debates."

But, uh, yeah, that's kind of the point of living in a free and open society. Nearly a decade ago, in a totally different arena, Professor Ed Felten talked about how you could debunk calls for stronger intellectual property protections via the Pizzaright Principle, whereby if the identical argument being made for why we need stronger copyright or patent protections could similarly be made for why someone deserves an exclusive right to sell pizza, then the argument is bogus.

It seems that we could do a similar sort of thing for any discussion that tries to cut off public debate and discussion about what the intelligence community is doing as well. If the same argument could equally apply to why we should not have a public 4th Amendment, it should be default evidence that the argument being pushed is completely bogus. We can call it the "Classified 4th Amendment Test."

Filed Under: 4th amendment, classified, debate, nsa, openness, public discussion, stewart baker

NSA Defenders Offer Weak Rebuttal Of The RNC's Condemnation Of Mass Surveillance Programs

from the 9/11-ad-infinitum dept

Soon after the Republican National Committee released its surprising condemnation of the NSA's spy programs, a loose confederation of NSA apologists and assorted hangers-on (but only one current legislator) fired off a response letter that claimed everything about the RNC's letter was wrong.

Stewart Baker, one of the signers, announced it at Volokh Conspiracy's new home at the Washington Post:

Almost immediately after the Republican National Committee adopted an error-filled resolution attacking the NSA and its telephone metadata program, current and former GOP officials took a strong stand against the resolution.

Well, as "strong" as a stand can be with only one current government worker signing it -- that being Mike Pompeo, one of the members of the House Intelligence Committee. Everyone else are former members of the security beltway, having maintained high-ranking positions in the CIA, DHS and DOJ. So, that particular response is hardly surprising. Michael Hayden (and his boss, Michael Chertoff) and Stewart Baker are the more recognizable names attached.

The "strong stand" reads as follows (with periodic interruptions by this writer):

Dear Chairman Priebus:

As Republicans who are familiar with the threat that terrorism still poses to this country, we are compelled to dissent from the ill-considered resolution adopted by the Republican National Committee on January 24 by voice vote.

The Republican National Committee plays a vital role in political campaigns, but it has relatively little expertise in national security. Unfortunately, that lack of expertise is on full display in the resolution. The RNC condemns “the secret surveillance program called PRISM,” and claims that it “monitors [the] searching habits of virtually every American on the internet.” In fact, there is no program that monitors the searches of all Americans. And what has become known as the PRISM program is not aimed at collecting the communications of Americans. It is targeted at the international communications of foreign persons located outside the United States and is precisely the type of foreign-targeted surveillance that Congress approved in 2008 and 2012 when it enacted and reauthorized amendments to the Foreign Intelligence Surveillance Act.

The NSA leaks have shown that programs don't need to be "aimed" at Americans to collect the data and communications of Americans. As long as something is considered "relevant," it can be collected. Not only that, but tons of "incidental" collection occurs as a nature of the untargeted dragnets. The NSA may have minimization processes in place, but they're not infallible and can be easily abused. So, for all the strong wording, this paragraphs reads like little more than the NSA party line. We don't target Americans. (We just somehow end up with a lot of their stuff.)

The errors in the resolution do not end there. The resolution falsely implies that NSA collects and has easy access to telephone metadata, when in fact every search of the data requires a reasonable and articulable suspicion and is strictly limited by the courts, with oversight by the intelligence committees of both houses of Congress.

We've discussed countless times how the intelligence committees' "oversight" has been anything but for years now. And the NSA does have easy access to the metadata. There may only be 20 or so people who can make RAS determination, but there are "up to 125 analysts" who have access to the collected metadata. Accessing the collection is no longer "strictly limited" by the courts. It was at one point, shortly after Judge Walton called a temporary halt to the program in 2009 because of wide-ranging abuse by the agency since the program's inception. These limitations are mentioned in court orders from 2009-2010, but are completely missing from the 2013 Verizon court order leaked to The Guardian back in June. The court appears to have gone back to simply approving the collection every three months and hoping that the NSA isn't backsliding to its pre-March 2009 habits.

The resolution says that the program violates the Constitution, something that will come as news to the many judges who have found to the contrary – and to the Supreme Court, which has said that such limited billing data is not protected by a constitutional expectation of privacy. The resolution’s claim that the program violates section 215 also runs counter to the rulings of practically every court to address the issue.

The "expectation of privacy" is due for a revisit, if for no other reason than the NSA's bulk record collections rely on a questionable reading of pen register/trap and trace statutes -- targeted but expansive collection methods -- that were somehow extrapolated (via FISC Judge Kollar-Kotelly) to cover untargeted and expansive collection methods. As for "many judges" finding the collections constitutional, that's not necessarily true. At this point, we have two federal judges who have issued opposing rulings on that specifically in the past few months. Prior to that, anyone seeking to challenge the NSA's programs simply wasn't granted standing, which makes it nearly impossible to build a comprehensive case history. Having no judge state outright (prior to Judge Leon) that the program is unconstitutional is not the same thing as having "many judges" finding to the contrary.

As far as we can tell, none of these facts was presented to the RNC before it adopted the resolution. It is a shame that the resolution reached the Committee without correction of its many errors.

Worse, the RNC resolution threatens to do great damage to the security of the nation. It would be foolhardy to end the program without ensuring that we remain safe from attack. This database provides a uniquely valuable capability for discovering new phone numbers associated with international terrorist organizations, including numbers that may be used by terrorist cells within the United States. Former Deputy Director of the CIA Michael Morrell has testified that having this capability might have prevented 9/11 and could help to prevent the next 9/11.

This again? "Security of the nation." "Prevented 9/11." "Prevent the next 9/11." All claims that are easily debunked. The message is still as stupid as it ever was: trust the same agencies that couldn't prevent the first attack to prevent the next one.

This is not a Democratic or a Republican program. Protecting Americans from terrorism should not be a partisan issue.

Correct, and the one caveat that cannot be completely detached from the RNC's letter.

The program was first launched under President George W. Bush. It was approved by Congressional leaders of both parties. And for good reason. It helps to keep Americans safe.

It was approved by lawmakers operating in a panic after a horrendous terrorist attack, not exactly the best climate for anyone to consider the possible negatives of handing over considerable power to national security agencies and the government itself. No one wanted to be the representative who failed to act or appear to place political partisanship above public safety. Portraying this as some sort of non-partisan "meeting of the minds" glosses over the reality of the situation: panicked legislators shoving through horrendous legislation in order to "do something" in response to the 9/11 attacks. There's nothing heroic or otherwise admirable about the passage of the PATRIOT Act.

It may be appropriate to modify the program in certain respects, if that can be done without a significant loss in effectiveness, but abolishing it without any idea how to close the intelligence gap that 9/11 exposed is not a recipe for partisan advantage. It is a recipe for partisan oblivion.

Count us out.

9/11 only exposed the fact that our nation's intelligence and investigative agencies had access to plenty of data before the attack but collectively made a series of bad decisions that allowed the attacks to occur. The "intelligence gap" was between agencies, not between agencies and their targets. Sweeping up millions of unrelated metadata records doesn't close that gap. All it does is make it harder for those sorting through the mess for actually useful intel to do their jobs.

So, the response is the sort of thing you'd expect from the signing members -- some 9/11 stuff and some "it's all legal" rhetorical flourishes. I'd like to issue this challenge to surveillance advocates -- compose a powerful statement defending the NSA's programs without using the phrase "9/11" for once and see how that goes. It's slipped past "talking point" to "crutch" at this point. This itself would be bad enough, but it's also demonstrably wrong -- and its inevitable deployment in defense of bulk records gives its users all the credibility of "doctors" who specialize in homeopathy.

Filed Under: mike pompeo, nsa, party politics, republican national committee, republicans, rnc, stewart baker, surveillance

A Tour Through The Bizarre Mind Of An NSA Defender: Discrediting Activists By Using Their Porn Surfing Is Just Like Journalism!

from the i-don't-even... dept

Oh, Stewart Baker. It's getting to the point where I feel like we may even need a "Oh, Stewart Baker" topic here on Techdirt, given how often we seem to feel the need to utter that phrase. Baker, if you haven't been playing along with the home version, is the former NSA and DHS official who really likes to support the ability of the government to spy on everyone and really seems to dislike civil liberties. Oh, and he has this incredible way of making statements so blatantly ridiculous that, personally, I find it scary that the government apparently trusted him in multiple really important positions. Let's go through some of the examples before getting to the latest wacky claim.

• Right after the Boston Marathon bombing, Baker claimed that it proved civil liberties defenders like the EFF and ACLU were wrong about surveillance cameras in saying that they're not very useful at stopping crime. And, of course, they didn't stop crime. Also, their main complaint is with government surveillance cameras, and those weren't the ones used to identify the Boston bombers.
• Next, he argued that reporters like Glenn Greenwald and Bart Gellman, two of the three journalists who got original stashes of documents from Ed Snowden, weren't real journalists because they were "advocates." But, that's what a journalist should be: an advocate for truth and an informed public.
• From there it started to get odder and odder. He blamed civil libertarians for 9/11, saying their whining about privacy resulted in the NSA not being able to spot the plot, despite the 9/11 Commission's report completely debunking such a claim. The failure to stop 9/11 wasn't because of limits on the government, but the failure to do things the government was allowed to do.
• Next he attacked Senator Ron Wyden for trying to alert the public to the many things that the NSA was doing that were beyond what the public believed the law allowed. Baker called this "trolling for leaks," while everyone else recognized it as "telling us the government has secret laws it won't tell us about, which it uses to violate the Constitution."
• Then there's the time he claimed that we should blame privacy rights advocates for having the TSA grope you at an airport. Without those pesky privacy folks, he argues, the TSA could just snoop through all your data first and not have to grab your crotch. Apparently, the complete set of possible options for airport security in the mind of Baker is: "violate your private info or get molested." That there might be other options -- even more effective ones -- doesn't even seem to be on the table.
• Next up: the time he claimed that without the NSA spying on everyone, 9/11 happened, and that's all the proof he needs that spying on everyone is necessary to prevent the next 9/11. Got that? Apparently anything that wasn't in place at the time of 9/11 is fair game, because 9/11. For example: before 9/11, we didn't force everyone to walk around in public naked, and 9/11 happened. Clearly the "proof is compelling" that everyone should have to walk around naked. #StewartBakerLogic.
• More recently, he tried to argue that the NSA's "minimization" procedures, which require them to stop watching "US persons" in certain limited situations caused 9/11, despite the fact that the example he cited wasn't actually subject to minimization, and was the result of a failure of government spooks to take action, not because they didn't have the information, but because they had too much of it to know what to focus on.
• And, then, with the latest leak of the fact that the NSA plans to discredit non-terrorist activists by revealing their porn surfing habits, Baker staunchly defended the program as being better than being killed by drones. Because, clearly, those are the only two options. Either the NSA kills non-terrorist activists they don't like or they sift through their web surfing to reveal their porn habits.

You may notice a bizarre pattern in many of these, in which Baker leaps to an either/or claim when a whole multitude of other options exist. Either way, he's since tried to defend his statements concerning the porn exposure by noting that the reporter, Ryan Grim at the Huffington Post, left out the key point he tried to make repeatedly: that what the NSA is talking about doing with these advocates is no different than what Glenn Greenwald has done in shaming politicians by showing how their actions do not match up with their words.

Think about that for a second. He's arguing an equivalence between government spooks snooping through all of your data and using it to embarrass people they don't like with a journalist reporting on information gleaned through journalistic activity. If journalists could magically tap into the NSA's database, he might have a (weak) point. If journalists were able to hack into the internet backbone and scoop up all data on anyone, he might have a point. If journalists had the ability to arrest/detain/kill you, he might have a point. But, you know, the one time we know of where journalists were caught hacking into computer systems to get private info, it created a massive scandal that brought down a well-established news operation.

That Baker can't see the difference between having access to that corpus of data through questionable means and journalism is, well, stunning. It gives you a picture into the mind of an NSA defender, however. It's a picture where he will cling to and distort pretty much any argument to try to defend the indefensible.

Filed Under: nsa, nsa surveillance, porn, shaming, stewart baker

NSA Spied On Porn Habits Of 'Radicalizers,' Planned To Use Details To Embarrass Them

from the j-edgar-alexander dept

The latest report on leaked Snowden docs from Glenn Greenwald (along with Ryan Gallagher and Ryan Grim at the Huffington Post) shows how the NSA had a plan to use the porn surfing habits of certain people they didn't like to discredit them. If this brings back memories of J. Edgar Hoover's FBI, effectively blackmailing politicians, you've connected the dots. This is why we've said that even people who think they've done nothing wrong, should be wary of the NSA spying on everyone. It's easy to turn even legal behavior, like surfing porn, into a personal embarrassment. It's important to note here that the "targets" in this case are not US persons, and they all do appear to dislike the US, and some appear to have advocated for jihad against the US. However, as the report notes, most of them are not terrorists or even connected to any terrorist organization. They're just activists and advocates who have spoken out criticizing the US. In one case, a guy was targeted for claiming that "the U.S. brought the 9/11 attacks upon itself" -- an argument that plenty of respectable people have made. The lack of any terrorist connection is actually, stunningly, used against these individuals, as one NSA document notes that since they don't communicate with terrorists it's worse because it suggests "that the target audience includes individuals who do not yet hold extremist views but who are susceptible to the extremist message." One can argue, as former NSA and DHS official Stewart Baker does in the article, that this kind of prying through someone's private life to embarrass them in public is "fairer and maybe more humane" than dropping bombs on them but that assumes an either/or sort of situation, which I'd like to believe that even someone like Baker doesn't actually believe.

And, really, the real issue here is the clear slippery slope. It's reasonable to argue that the US should be spying on terrorists who want to attack us. That's a mission that makes sense. But there's a pretty big gap between spying on terrorists who are trying to kill us, and snooping through the private activities of those with an audience who just don't like us. And, from there, of course, it's not a very far leap over to arguing that activists within the US who are critical of the government should be subject to the same treatment.

While Baker and others support using surveillance to tarnish the reputation of people the NSA considers "radicalizers," U.S. officials have in the past used similar tactics against civil rights leaders, labor movement activists and others.

Under J. Edgar Hoover, the FBI harassed activists and compiled secret files on political leaders, most notably Martin Luther King, Jr. The extent of the FBI's surveillance of political figures is still being revealed to this day, as the bureau releases the long dossiers it compiled on certain people in response to Freedom of Information Act requests following their deaths. The information collected by the FBI often centered on sex -- homosexuality was an ongoing obsession on Hoover's watch -- and information about extramarital affairs was reportedly used to blackmail politicians into fulfilling the bureau's needs.

[....] James Bamford, a journalist who has been covering the NSA since the early 1980s, said the use of surveillance to exploit embarrassing private behavior is precisely what led to past U.S. surveillance scandals. "The NSA's operation is eerily similar to the FBI's operations under J. Edgar Hoover in the 1960s where the bureau used wiretapping to discover vulnerabilities, such as sexual activity, to 'neutralize' their targets," he said. "Back then, the idea was developed by the longest serving FBI chief in U.S. history, today it was suggested by the longest serving NSA chief in U.S. history."

Baker -- the same guy who blamed civil libertarians for 9/11 and blamed privacy advocates for an over-aggressive TSA -- brushes off the idea that the NSA might ever abuse this stated program of spying on people's personal lives and habits to discredit them publicly.

Baker said that until there is evidence the tactic is being abused, the NSA should be trusted to use its discretion. "The abuses that involved Martin Luther King occurred before Edward Snowden was born," he said. "I think we can describe them as historical rather than current scandals. Before I say, 'Yeah, we've gotta worry about that,' I'd like to see evidence of that happening, or is even contemplated today, and I don't see it."

We're not exactly talking ancient history here. The abuses happened within Baker's own lifetime, even if they didn't happen within Snowden's. But the idea that within a single generation we've suddenly created more virtuous humans who won't abuse power is kind of laughable, and I'm curious as to what Baker's basis for believing that is. For someone who has spent so much of his career trying to help the hunt for bad guys, he sure has an optimistic view of the intentions of human beings. Oh, I forget, he's only talking about people on "our side" who I guess are naturally virtuous -- whereas folks on the other side are naturally morally destitute. Because that makes no sense at all, which seems to be the kind of arguments that Baker gravitates to.

Either way, it's exactly this kind of activity that has so many people concerned about the NSA. They're clearly not just spying on terrorist communications for the sake of preventing an attack. Now they're directly talking about using private information, like the fact that someone surfs porn or is "attracted to fame" to do character assassinations of people they dislike. The ability to abuse such a power is vast, and it's laughable to think that the NSA is so full of perfectly virtuous people that it would never make use of such powers.

Filed Under: embarrassment, keith alexander, nsa, porn habits, stewart baker

Former NSA Lawer Stewart Baker: FISA Minimization Policies Are To Blame For 9/11 Attacks

from the next-up:-opinion-blogs-to-blame-for-9/11-attacks! dept

Stewart Baker, former DHS official and NSA counsel, has plenty of blame to spread around for the 9/11 attacks. None of it seems to lay at the feet of the terrorists who performed the attacks, however. He's entertained various theories over the past few months as he's defended the actions of the NSA, TSA and various other government agencies.

Most egregiously, Baker claimed civil liberties activists were to blame for the 9/11 attacks because their concern over warrantless wiretap programs somehow made the FISA court so defensive it wouldn't let the FBI pursue terrorists it knew were currently in the country.

Baker expounds on this further in his post criticizing the NSA-targeting Leahy-Sensenbrenner bill, making the argument that FISA minimization policies prevented the FBI from tracking down terrorists located in the US.

The Leahy-Sensenbrenner USA FREEDOM Act puts the Foreign Intelligence Surveillance (FIS) court in charge of shaping, overseeing, and enforcing minimization guidelines in connection with section 215, pen/trap orders, and section 702, largely taking the Attorney General out of the process of writing minimization guidelines. I’m appalled, because the FIS court has taken control of minimization before, with disastrous consequences; it built a “wall” between intelligence and law enforcement without any legal basis for doing so, and enforced the wall so aggressively that the FBI couldn’t use its best counterterrorism assets to track down the hijackers in late August and early September 2001. In a very real sense, it was the FIS court’s legal error combined with a self-righteous use of its contempt power that thwarted the country’s last, best chance to stop the attacks.

Baker is one of the only people out there who have taken the FISA court to task for being "too restrictive." According to Baker, this is because its reaction to early "rubber stamp" criticism was to swing the other way and utilize its contempt power to limit the reach of intelligence agencies.

It's hard to argue with the rubber stamp perception, considering the court has approved nearly every request that has crossed its desk. The court may argue that several requests are sent back for major changes before finally being approved, but the end result is still the same: large-scale collections of untargeted, domestic data are still being OK'ed. Not only that, but expansions of programs have been granted even as FISA judges detail large amounts of agency wrongdoing within those same opinions.

But going back to Baker's opening statement, the FISA court didn't erect a minimization "wall" that prevented data from being shared between agencies. And even if it had, the breakdown that led to a domestically-located terrorist eluding multiple US agencies would not have been affected by looser minimization standards.

The ACLU's Michael German thoroughly dissected the intelligence failures preceding the 9/11 attacks using widely-available information from the 9/11 Commission's report. Baker's supposedly hamstrung agencies are nowhere to be found.

It turns out that the NSA was intercepting calls to the al Qaeda safe house in Yemen as early as 1999, and both the FBI and CIA knew Mihdhar was an al Qaeda operative long before the 9/11 attacks.

The safe house was discovered during the FBI’s investigation into the 1998 bombings of two U.S. embassies in East Africa, and had been monitored by the NSA and CIA ever since. The inspector general’s report couldn’t be clearer that the intercepts were being broadly shared:

“The NSA’s reporting about these communications was sent, among other places, to FBI Headquarters, the FBI’s Washington and New York Field Offices, and the CIA’s CTC. At the FBI, this information appeared in the daily threat update to the Director on January 4, 2000.”

Here we see multiple agencies broadly sharing information on a known terrorist. Not only that, but the intercepted phone calls were to a known terrorist group, meaning the call data on those would be subject to very little, if any, minimization procedures and could be tipped to the FBI without stripping identifying info. At this point, three agencies knew about the calls to an al Qaeda safehouse.

What happened next had nothing to do with minimization procedures. The agencies involved knew Mihdhar was communicating with terrorist entities outside the US, so the governor was off, so to speak. Unfortunately, the CIA decided to do nothing with the additional information it had.

The CIA, however, failed to place Mihdhar on a watch list or “notify the FBI when it learned Mihdhar possessed a valid U.S. visa,” according to the 9/11 Commission report. The inspector general’s report revealed that five FBI officials assigned to the CIA Counterterrorism Center viewed CIA cables indicating Mihdhar had a U.S. visa. A week after the Kuala Lumpur meeting, Mihdhar and Hazmi flew into Los Angeles International Airport and entered the United States without a problem.

So, we have an agency failing to put a potentially dangerous person on a watch list and we have the FBI itself, the agency Baker claims was cut out of the loop by FISA court meddling, failing to do anything with the information it had pulled from CIA cables -- information Baker is apparently claiming it had no access to.

Then we have the NSA itself collecting even more data and doing nothing with it.

After their entrance, the NSA would intercept at least six calls from the al Qaida safe house in Yemen to the United States, according to the Los Angeles Times.

Even if the NSA was prevented by FISA court interference from tipping these calls to the FBI (which is doubtful, considering they were contacts with a terrorist entity), it still had the info in its possession and didn't act on it.

There are many levels of failure at play here, but protecting the data of American citizens isn't one of them. Baker's interest in placing the blame for the 9/11 attacks on the NSA's critics has gone past unseemly. At this point, he sounds like a one-man echo chamber. The entities he despises the most (EFF, ACLU, etc.) are somehow the villains in every scenario, whether it's a national tragedy or the TSA's invasive pre-flight security theater, even when every argument he makes fails to produce any evidence towards his conclusions.

Filed Under: 9/11, fisa, minimization, privacy, stewart baker

Dumbest Logic Ever: 9/11 Happened Without Today's NSA Surveillance, And That's Proof Why It's Necessary

from the how-do-these-people-get-to-be-in-power dept

Oh, Stewart Baker. You may recall this former top NSA and DHS official from the time he said the Boston bombing proved that civil liberties advocates were wrong about cybersecurity. Or, maybe the time he blamed 9/11 on civil libertarians. Or, how about the time he said privacy advocates were to blame for the TSA groping you at the airport? And those are all just in the past few months. Baker always seems good for a head-smackingly ridiculous quote, and it appears that The Guardian got him to provide yet another one.

The Guardian has a big, overly designed (pretty, but... not clear for what good) piece called NSA Files: Decoded, which goes through many of the revelations in the Snowden docs and why they're important. It's a good read, interspersed with videos (which annoyingly autoplay as you get to them). Baker appears a few times, with his second video being another insane quote (as far as I can tell, there's no way to embed the video here):

You can say, well show me proof that this really worked. I can show you proof that the lack of this really failed. And when you lose 3,000 people, that proof is pretty compelling.

That statement is shockingly non-sensical. With that sort of logic, you can argue for almost any abuse of power. You know what else we didn't have before 9/11? Surgically implanted chips in our brains that would transmit our every thought to Stewart Baker's home computer. Is that "compelling proof" that we should now have that? The fact that we didn't have this kind of surveillance at the time of 9/11 is not "compelling proof" that it makes sense now, and you have to have no comprehension of basic logic and reasoning to think so.

The logic here is "9/11 happened, so anything we didn't have in place during 9/11 is automatically compelling proof that it should be in place." You know what else we didn't have when 9/11 happened? Well, the list is pretty damn long. We didn't have a US monarchy. Perhaps we need that. We had airplanes, which were used in the attacks. Perhaps it's compelling evidence that we should get rid of airplanes. You can use this kind of brain dead logic to justify just about anything.

But, of course, that's now how you actually do things. You don't justify something by saying "this went wrong, we have to do something, something has been done, and that's compelling proof." There's a big black box that Baker skips over, and it's the question he was originally asked and declined to answer: does the "something" actually work? But, in Baker's distorted view of the world, that doesn't seem to matter.

Filed Under: 9/11, dhs, nsa, nsa surveillance, stewart baker

NSA Staff Whining That President Obama Isn't Defending Them Enough

from the perhaps-there's-a-reason-for-that... dept

Foreign Policy magazine has an article highlighting how NSA employees are pissed off that President Obama hasn't been defending the NSA strongly enough these past few months. While many (including us) have been quite critical of President Obama's weak defense of the NSA programs, folks inside Ft. Meade are pissed off that he's not out there defending them more strongly:

Gen. Keith Alexander and his senior leadership team at the National Security Agency are angry and dispirited by what they see as the White House's failure to defend the spy agency against criticism of its surveillance programs, according to four people familiar with the NSA chiefs' thinking. The top brass of the country's biggest spy agency feels they've been left twisting in the wind, abandoned by the White House and left largely to defend themselves in public and in Congress against allegations of unconstitutional spying on Americans.

Former intelligence officials closely aligned with the NSA criticized President Obama for saying little publicly to defend the agency, and for not emphasizing that some leaked or officially disclosed documents arguably show the NSA operating within its legal authorities.

"There has been no support for the agency from the President or his staff or senior administration officials, and this has not gone unnoticed by both senior officials and the rank and file at the Fort," said Joel Brenner, the NSA's one-time inspector general, referring to the agency's headquarters at Ft. Meade, Maryland.

Of course, one response to this is: too bad. Perhaps if the NSA didn't keep pushing the boundaries further and further out, and there were more courageous folks like Ed Snowden willing to speak up and say "what we're doing is wrong," those NSA employees wouldn't be dealing with this mess. And, of course, you'd hope that the NSA would employ grown ups who don't get all mopey because the President has other things to focus on.

While the President has defended the NSA programs a few times (on TV programs such as Charlie Rose and Leno, as well as in that one press conference in August), it is true that most of the defending has come directly from intelligence officials themselves, including Keith Alexander and James Clapper, as well as the NSA's big defenders in Congress. The higher ups within the administration have been fairly quiet. And, apparently what's pissing off many in Ft. Meade is that President Obama had embraced them so closely since he came to office. Despite expressing some skepticism about these kinds of activities while he was running for office, once he got into the White House, Obama's "embrace of the dark world of spycraft has been near-absolute."

Of course, some might argue in response that there's really not much else that the President can do at this moment. He's given a few statements about it, set up the ridiculous weak "review" board, and then has kind of had his hands full with things like Syria and a government shut down -- both of which are, certainly, issues that deserve his attention. The article quotes Brenner again, saying that the President should have gone to Ft. Meade and given them a pep talk. That seems a bit silly to me. If NSA employees need pep talks to keep morale up, it seems like they're in the wrong business.

A former NSA general counsel, Stewart Baker -- last seen here blaming civil libertarians for 9/11, blaming Senator Wyden for encouraging people to reveal NSA excesses and blaming privacy advocates for you having to get groped at airports -- is also quoted in the article whining that:

"The President is uncomfortable defending this. Maybe he spends too much time reading blogs on the left," Baker said. "That's fatal in cases like this. You have to make the case because nobody else will."

Yeah. It's those damn lefty blogs that are the problem (ignoring, of course, how much of the outcry have come from right-leaning and libertarian blogs). Of course, there is the possibility that President Obama is legitimately embarrassed over having the NSA's excesses come out. A couple years ago, we highlighted famed whistleblower Daniel Ellsberg talking about President Obama's response to whistleblowing (the discussion was about Wikileaks), and he speculated that Obama's incredible devotion to secrecy when it came to civil liberties violations and leaks might be because of pure embarrassment. As he noted, President Bush didn't care much for civil liberties, but he also was fairly upfront about that fact. President Obama, however, acted as if he did care about civil liberties, while behaving in a very different manner. Thus, it's entirely possible, as Ellsberg speculated years ago, President Obama is happy to do all of this so long as it stays secret. The second any of it comes out, he's ashamed by his own actions -- which might explain the less than full-throated support for these actions.

Still, as others point out in the FP article, if the rift is really that big, it's somewhat surprising that the President hasn't yet thrown either Alexander or Clapper under the bus, giving him the opportunity to pretend to blame them alone for the overreach. The President has already made the ridiculous claim that he only finds out what the NSA is doing from the press, so he could easily argue that the agencies have gone "rogue" and get rid of the leaders. But he hasn't done that.

Still, the potential of a growing rift between the White House and the intelligence community is worth watching as new bills are proposed to curb those agencies' excesses.

Filed Under: barack obama, keith alexander, morale, nsa, nsa surveillance, stewart baker, white house

Former DHS/NSA Official Says You Should Blame Privacy Advocates For The TSA Groping You

from the wait,what? dept

Remember Stewart Baker? He's the former Homeland Security and NSA officials who recently argued that civil liberties activists were to blame for 9/11. Apparently, that sort of thinking (blame the activists for what it leads the government to do) worked so well the last time, he's back for more. According to him, all the bullshit you've had to go through with the TSA at our airports is because of those darn meddling privacy advocates. Yes, we've now learned that the reason a TSA measured the weight of my little friend and his bag of tricks is because privacy advocates just wouldn't let the TSA do invasive background checks on all of us. The privacy advocating jerks.

TSA ended up taking more time to inspect everyone, treating all travelers as potential terrorists, and subjecting many to whole-body imaging and enhanced pat-downs. We can't blame TSA for this wrong turn, though. Privacy lobbies persuaded Congress that TSA couldn't be trusted with data about the travelers it was screening. With no information about travelers, TSA had no choice but to treat them all alike, sending us down a long blind alley that has inconvenienced billions.

Of course! It isn't the TSA's fault the TSA debased me. It's because privacy advocates (also me) didn't want the TSA to debase me by massively invading my privacy. It makes perfect sense! Never mind that this is all a theater show ostensibly designed to up the suicide count of Americans worldwide, because they sure aren't catching anyone important. It's the privacy people who are to blame. Also, all those women who are sexually assaulted? Pshh, they were dressed to provocatively. Blame the short-skirt makers or whoever.

Then, because apparently Stewart Baker hasn't been reading the news lately, he testified that instead the government just needs more data on all of us, while driving home the point that the current security screenings are stupid.

No one wants to be against privacy, but we've tried the privacy campaigners' preferred solution, denying even the smallest scrap of data to the government, and they saddled us with ten years of stupid screening at our airports, where a lack of data forced TSA to treat everyone like a suspected terrorist. No one liked that solution, with good reason. It's time to recognize that failure and encourage experiments in smarter, faster, more informed screening based on data-sharing.

Okay, no. The TSA has not tried the privacy campaigner's preferred solution, because I've yet to hear a privacy campaigner stamp her feet over the fact that her nipples haven't been tweaked lately. And, while everyone would like better and safer solutions for traveling, making the "our government just doesn't have enough data on us" argument at this point in time might be the most tone-deaf thing since Bob Dylan. The TSA is full of misconduct, the government is collecting too much data on us and is overloaded with it, all while even the TSA's advocates are calling their current screening processes "stupid."

Drop the curtain on this theater, because the show has been going on too long and it sucks anyway.

Filed Under: blame, civil liberties, privacy, privacy advocates, stewart baker, tsa