Trump Not Even Waiting To Get Into Office Before Threatening The First Amendment, Press Freedoms

from the quick-on-the-draw dept

During the campaign and after his win, President Elect Donald Trump has been remarkably consistent on his calls for curtailing the rights afforded to the American people and our news organizations by the First Amendment. Between threatening lawsuits over campaign ads, suggesting that political protests ought to be stopped, and mocking free speech in more general terms, the soon-to-be President has positioned himself to be a challenger to long-held freedoms for which very real blood has been shed to protect.

But it seems the President Elect is not content to wait to enter office to try to begin this erosion of the First Amendment. Amidst a week of turmoil over the publication of comments about the classified briefing he, amongst others, received detailing intelligence findings about Russian involvement in the previous election cycle, Donald Trump has called upon Congress to investigate how this information was leaked to NBC News.

“I am asking the chairs of the House and Senate committees to investigate top secret intelligence shared with NBC prior to me seeing it,” he tweeted. "Before I, or anyone, saw the classified and/or highly confidential hacking intelligence report, it was leaked out to @NBCNews. So serious!" he added on Sunday.

We should note first the dissonance in Trump's stance and the Inception-esque nature of NBC's reporting. Essentially, NBC was reporting on a leak of a classified briefing that accused Russia of actively hacking, and then leaking, internal DNC communications. It's a leak about intelligence of a leak, in other words. And the DNC leaks were prominent talking points by Trump during the campaign, at times being read verbatim by the candidate at rallies, while at other times he simply read to the crowd news reports of the leaks. Those leaks were kosher, it seems, yet the NBC reports deserve Congressional investigation.

Perhaps more importantly, the prospect of Congress hauling journalists before the government to answer questions about their sources for the leaks takes the country back to a time prior to the precedent of not doing this.

Congressional committees, including the House and Senate intelligence committees, do technically have the authority to investigate the leak and subpoena NBC News reporters. But they are not likely to do so, media attorney Mark Zaid told POLITICO.

“I’d say there is little to no chance that Congress would get involved with any kind of classified media leak investigation,” he said. “Could they? Sure. Do they? No.”

In fact, the last time Congress did something like this was back in the 1970s, when a CBS reporter, Daniel Schorr, got his hands on a classified report from the House intelligence committee about illegal conduct perpetrated by the CIA. Schorr refused to name his source for the document in front of Congress, risking imprisonment, a punishment that was never actually levied. Given that the document Schorr used in his reporting, and subsequently shared with other news organizations, detailed only internal CIA practices and the government's assessments of them, returning to this kind of dangerous meddling by the government into news reporting over a document that deals with foreign spycraft would be strange indeed.

Strange, and dangerous, according to Joseph Califano, Jr., the man who represented Schorr during the ordeal.

Califano was dismayed after hearing about Trump’s tweet.

“That is a savage attack on the First Amendment,” he said. “We’ve been through this. Reporters have confidential sources. That’s become a hallowed part of the First Amendment and the ability of reporters to report. … These committees should not be getting into that.”

"If the government wants to find out who leaked and it’s somebody in the government, and if the intelligence community wants to find out who leaked, the Justice Department can go look at the CIA and look at all the national intelligence agencies," he said. "Not the reporter. That’s the wrong way to do it. That is really a serious erosion of a freedom that is essential."

But, as we've said, President Elect Trump has shown little regard for either the First Amendment or for the customs and norms of government action. Instead, he at times looks to wield government power as though it were his personal cudgel against his perceived political enemies. For anyone interested in a thriving and free America, whatever your political proclivities, whomever you may have voted for, the warning bells should be ringing loud and clear.

Filed Under: donald trump, first amendment, free speech, leaks, reporting

Malcolm Gladwell's Ridiculous Attack On Ed Snowden Based On Weird Prejudice About How A Whistleblower Should Look

from the you-don't-get-the-whistleblowers-you-want dept

There was a time when I was a fan of Malcolm Gladwell. He's an astoundingly good story teller, and a great writer. But he's also got a pretty long history of... just being wrong. Over the years, Gladwell's willingness to go for the good story over the facts has become increasingly clear. Famously, Steven Pinker ripped Gladwell's serial problems many years ago, but it hasn't really stopped Gladwell since then. If you've ever quoted "the 10,000 hour rule" or suggested that someone can become an expert in something if they just spend 10,000 hours doing it, you've been fooled by Gladwell. Even the guy whose one study Gladwell based the idea on loudly debunked the claim, and just this past year put out his own book that is basically trying to rectify the false beliefs that have spread around the globe from people believing Gladwell's incorrect spin.

So, suffice it to say I was already skeptical of Gladwell's recent piece attacking Ed Snowden as not being a "real" whistleblower. But the piece is much, much worse than even I expected. The short, Gladwellian-style summary of it might be: real whistleblowers have to look the part, and they need to be part of an Ivy League elite, with clear, noble reasons behind what they did. Here's how Gladwell describes Daniel Ellsberg, the guy who leaked the Pentagon Papers, and to whom Gladwell has given his stamp of approval as a "Real Whistleblower™"

Ellsberg was handsome and charismatic. He had served in the Marine Corps as a company commander in Korea. He did his undergraduate and graduate studies at Harvard, where he wrote a Ph.D. dissertation on game theory and collaborated with Thomas Schelling, who went on to win a Nobel Prize. He took a senior post in McNamara’s Defense Department, represented the State Department in Vietnam, and had two stints as a senior intelligence analyst at the rand Corporation. Ellsberg knew about the Pentagon Papers because he was a member of the select team that wrote them, working on the section dealing with the very early nineteen-sixties. Before he approached the Times, he went to the Senate, where he tried to get someone to release the documents formally and hold public hearings. He walked the halls and dropped in on people he knew. “I had Senator Mathias in mind, and Senator Mike Gravel,” who, he notes, had “written me a letter congratulating me on my New York Review of Books article,” about the bombings in Laos. (It seems safe to say that the subject, verb, and object here—“Senator,” “written,” “New York Review of Books article”—may never again appear together in a sentence.)

See? To Gladwell, Ellsberg "fits the part." But that's not how whistleblowing often works. And here's how Gladwell describes Snowden, who apparently doesn't look the part:

But Snowden did not study under a Nobel Prize winner, or give career advice to the likes of Henry Kissinger. He was a community-college dropout, a member of the murky hacking counterculture. He enlisted in the Army Reserves, and washed out after twenty weeks. He worked at the C.I.A. for a few years and left under a cloud. He learned about the innermost secrets of American intelligence-gathering and policy not because he was personally involved with that intelligence-gathering or policymaking but because he was a technician who helped service the computer systems that managed these things. The élites, Snowden once said, “know everything about us and we know nothing about them—because they are secret, they are privileged, and they are a separate class.” Had Snowden been a whistle-blower in 1967, at the launch of the Pentagon Papers, he would have blown the whistle on Daniel Ellsberg. The whistle-blower as insider has become the whistle-blower as outsider. That is a curious fact, and, as we come to terms with the consequences of Snowden’s actions, it may be an underappreciated one.

Gladwell's gentlemanly view of whistleblowing as an elite pasttime is historical fiction. It's not how whistleblowing usually works, and completely ignores how the government has regularly gone after and punished whistleblowers time after time. Gladwell, somewhat ridiculously, creates a fictional composite he calls "Daniel Snowberg" and suggests if the following had happened, that would have made Snowden an acceptible whistleblower:

Imagine a young man called Daniel Snowberg. He has a doctorate in international relations, and once spent a summer interning at the Electronic Frontier Foundation, the think tank specializing in digital freedom. He gets a job as an analyst at the National Security Agency, and while there he runs across a copy of the infamous Foreign Intelligence Surveillance Court (fisc) authorization, under Section 215 of the Patriot Act. This is the order that led Verizon to hand over its telephone records to the N.S.A.

The order troubles him. The Patriot Act allows the N.S.A. to obtain phone records and the like if it provides “a statement of facts showing that . . . the tangible things sought are relevant to an authorized investigation.” But this isn’t a search specific to an investigation. It appears to be a fishing expedition. He surreptitiously copies the authorization: it’s not that long. He sends it to his old colleagues at the Frontier Foundation. They share his alarm: the legal opinion in the fisc order looks unconstitutional to them. They set up a meeting with Ron Wyden, the ranking Democrat on the Senate Intelligence Committee. Wyden, too, is troubled. He encourages them to leak it to the Washington Post. And they do. That is the leaker as insider.

Edward Snowden took a different path. He used a Web crawler (a search engine preprogrammed with key words) to roam through the N.S.A. files, “touching” as many as 1.7 million of them. Among those files was the fisc order. But Snowden also accessed, and ultimately passed on to journalists, thousands of files concerning activities that had nothing to do with domestic surveillance.

But that final paragraph also bullshit and a misleading myth pushed by the intelligence community, and has since been debunked. Even James Clapper admitted two and a half years ago that Snowden didn't take 1.7 million documents, and that it was a much more curated list of files that he felt actually showed serious problems. And, while Gladwell keeps trying to suggest that Snowden "flooded" documents, rather than "leaking" them. That's ridiculous.

As the EFF has written in response to Gladwell's piece, Gladwell seems to be troubling rewriting history to suit his narrative, rather than actually stating facts, noting that contrary to Gladwell's claim, both Ellsberg and Snowden did essentially the same thing -- taking a large number of documents but not all that they had access to -- to the press, and allowing them to sort through what was newsworthy.

Also, the EFF notes that the "Daniel Snowberg" hypothetical is ridiculous, because that description matches exactly what happened with Mark Klein, the former AT&T tech who blew the whistle on the NSA's upstream tapping of AT&T backbone cables. And it didn't work the way Gladwell thinks it would work:

Mr. Klein was in tech support at AT&T. Like Snowden, he didn’t go to Harvard, pal around with Kissinger, or serve in the intelligence services. But he had real documents and direct testimony demonstrating that, at the behest of the NSA, AT&T was (and still is) making illegal copies of Internet traffic through key network junctures. This includes the juncture in a building on Folsom Street in San Francisco. After copying, searching is conducted through the full content of much of that information, especially messages going to and from abroad but including millions of Americans' communications. We now know that the government calls this program “UPSTREAM,” and calls its searching through the actual content of messages “about” searching, but we didn’t know these names in 2006. This was a big, new program with profound legal and constitutional implications. It deserved (and still deserves) serious public and judicial consideration.

So what happened? Mr. Klein went to the press before coming to EFF, but a Los Angeles Times story about his discoveries was famously spiked by Director of National Intelligence John Negroponte who intimidated now New York Times Executive Editor Dean Baquet out of running it. Finally, the New York Times did publish a story but the government just kept issuing carefully worded denials.

During this time Mr. Klein also came to EFF and we tried to do what Ellsberg did. We approached several U.S. senators about the information, including Mr. Klein’s own Senator Dianne Feinstein. We were, to put it kindly, strung along. We never even got a meeting with a senator. EFF also filed a lawsuit against AT&T based on Mr. Klein’s information, but we had to keep the actual evidence under seal for a long time, making it easy for the government to largely ignore us and, when pushed, dismiss Mark’s claims as unfounded since he was just a lowly technician.

We tried another part of the “Ellsberg” strategy. We took Mark to Washington to try to increase the chance of Congressional assistance as well as to try to bring more public attention to what his evidence revealed. We even managed to have a press briefing on Capitol Hill and a few meetings with staffers.

But we couldn’t get a hearing on Mark’s whistleblower information, couldn’t keep the press on it, and couldn’t penetrate the assumptions and elitist narrative about whistleblowers.

But, honestly, beyond the ridiculous hypothetical, the pure insanity of claiming that Snowden can't be a whistleblower because he isn't elite enough, and the factually incorrect statements (which were shown to be factually incorrect years ago), the best evidence that Malcolm Gladwell is (once again) full of shit comes from none other than Daniel Ellsberg himself who explained how Snowden made the right call in doing what he did, and happily comparing Snowden to himself:

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

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

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

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

Snowden is every bit the "whistleblower" that Ellsberg was -- and perhaps moreso, seeing as he did what he did knowing (unlike Ellsberg) that he needed to leave his home country to do so, and that he might never return. Gladwell tells a good story, but it should be left on the fiction pages.

Filed Under: daniel ellsberg, ed snowden, leaks, malcolm gladwell, whistleblowers

NSA Leaked More Hacking Tools, Leading To Calls To Fire Its Director... Who Ran To Trump For Support

from the wait,-what? dept

Since Admiral Michael Rogers took over for previous NSA boss, General Keith Alexander, a couple of years ago, he's mostly stayed out of the public eye. While Alexander became the face of excessive NSA surveillance exposed by Ed Snowden, Rogers seemed to want to present himself as the face of a cleaned up NSA. On Friday, it was even reported that Rogers was the "top candidate" to take over as Director of National Intelligence from retiring James Clapper. That is, he was in line for a big promotion (though, oddly, another report released at the same time noted that Trump was considering getting rid of the role of "Director of National Intelligence" and moving back to a pre-9/11 setup where the various intelligence agencies have no one coordinating their actions.

But, over the weekend, a bizarre story broke in the Washington Post, detailing how both Clapper and Defense Department boss Ash Carter had been strongly recommending that President Obama fire Rogers for a variety of problematic actions. The most shocking -- though buried in the article -- is that the NSA has had multiple breaches revealing its most powerful hacking tools. We already know about the whole Shadow Brokers thing, revealing some powerful hacking tools, and that an NSA contractor named Harold Martin was arrested a few months ago for apparently hoarding all sorts of classified info. As we noted at the time, the fact that Martin was doing so years after Snowden, raised serious questions about how well the NSA could really keep its secrets.

And the Washington Post revealed that it's even worse:

But there was a second, previously undisclosed breach of cybertools, discovered in the summer of 2015, which was also carried out by a TAO employee, one official said. That individual also has been arrested, but his case has not been made public. The individual is not believed to have shared the material with another country, the official said.

Rogers was put on notice by his two bosses — Clapper and Carter — that he had to get control of internal security and improve his leadership style. There have been persistent complaints from NSA personnel that Rogers is aloof, frequently absent and does not listen to staff input. The NSA is an intelligence agency but part of the Defense Department, hence the two overseers.

FBI agents investigating the Martin breach were appalled at how lax security was at the TAO, officials said. “[Rogers] is a guy who has been at the helm of the NSA at the time of some of the most egregious security breaches, most recently Hal Martin,” a senior administration official said. “Clearly it’s a sprawling bureaucracy . . . but I think there’s a compelling case that can be made that some of the safeguards that should have been put in place were either not fully put in place or not implemented properly.”

The WaPo story also notes that there may be some turf battle issues going on here as well. We've long highlighted the serious problems of the NSA also running the US Cyber Command, noting that this creates a tremendous conflict of interest, since it makes the NSA more willing to not reveal vulnerabilities it discovers, since they may be more useful offensively as well. Apparently many in the administration agree, and the plan was to split the NSA and US Cyber Command, and get rid of Rogers at the same time. But, Senator John McCain apparently freaked out and insisted that the NSA and Cyber Command had to remain stuck together, or he would block any new nominees to head the NSA. At the same time, the reason Carter is upset with Rogers is that he feels he's done a poor job in mounting cyberattacks against ISIS (for what it's worth, in his own weird way, this was also a point that Trump would make during the campaign when asked about cybersecurity -- meaning that it's a bit odd he'd now consider promoting the guy who was responsible for what he'd been making fun of during the campaign...).

There's another oddity in the story: Rogers meeting with Trump was done without telling his superiors -- a massive breach of protocol for a military official:

In a move apparently unprecedented for a military officer, Rogers, without notifying superiors, traveled to New York to meet with Trump on Thursday at Trump Tower. That caused consternation at senior levels of the administration, according to the officials, who spoke on the condition of anonymity to discuss internal personnel matters

This made some wonder if Rogers did this as a last gasp effort to save his job. For what it's worth, when asked about the story, Rogers said he's "accountable" for his actions:

"I'm not going to go down that road," Rogers said, interrupting a journalist who asked about The Washington Post story during a forum where the admiral was speaking.

He added, "I'm accountable for my actions."

No matter what, at the very least, we're left (once again!) wondering what the hell is going on with the NSA. This is yet another example of how the organization is a mess that can't seem to keep track of its most powerful secrets and hacking tools. And they want us to "trust" them not to abuse those tools? They can't even keep track of them. And, the guy who's been in charge for the last two and a half years may now be getting a promotion (with a brief "being fired" thrown in between).

Filed Under: admiral michael rogers, ash carter, donald trump, ed snowden, james clapper, leaks, nsa, odni, surveillance, us cyber command

If The FBI Can't Stop All These Leaks About An Investigation, Why Would it Be Able To Keep Encryption Backdoor Secret?

from the bunch-of-leakers dept

In the last 10 days or so, James Comey sent two letters to Congress -- the first one notifying Congress of some new information in an "unrelated" investigation that may pertain to Hillary Clinton's emails. And then the one from yesterday admitting that there was nothing important in those emails. That was effectively all that Comey said officially. Yet, in between all of that a ton of information leaked from the FBI about the investigation. We learned what it pertained to (the Anthony Weiner investigation), heard estimates of the number of emails involved, heard that the FBI found them weeks ago but only told Comey right before he sent the letter, that the FBI didn't have a warrant to read the emails -- and then that it did, and that a whole bunch of people inside both the FBI and DOJ have opinions on both sides of this whole mess.

Basically, the FBI (and the DOJ) were leaking information like it was the last chance they'd ever have to leak information and their lives depended on who could leak the most.

And, remember, this is the same damn agency that is so insistent on forcing tech companies to put backdoors into any encryption to make sure the FBI can get into anything it wants. Yet, they can't keep the basic details of an investigation secret? And then they expect everyone to just accept it when they say that we can trust them to keep backdoors secret and to only use them appropriately? That seems like a huge leap of faith for a government bureau that has done almost nothing to deserve that kind of support.

The next time (and it's coming...) the FBI starts talking about "Going Dark" and how it needs to break basic technology tools, perhaps stand up and remind people that this is an organization that can't keep its own secrets very well. Perhaps we shouldn't trust it with all of our secrets as well.

Filed Under: backdoors, encryption, fbi, going dark, james comey, leaks

US Officials 'Strategically Leak' That US Is Ready To Hack Russia If It Interferes With Election

from the oh-come-on dept

For the past few months, we've been covering the increasingly eager stance of some in the "cybersecurity" and government worlds to proactively launch offensive cyberattacks on Russia. Going all the way back to the early summer, when Russia's role in any hacks was totally speculative, some were already advocating for "cyberwar" as a response. As we reached the fall, suddenly it was leaked that many inside the government were getting itchy trigger fingers to launch some sort of digital attack. And, government officials really seemed to rely on the ever gullible reporters at NBC to push this story.

So it comes as little surprise that NBC has the rather clumsily, if strategically linked news that the US government is all ready to cause cyber havoc on Russia if it does anything serious to interfere with US elections. Think, for just a second, how people in the government and national security worlds would react if someone like Ed Snowden leaked the following bit of info:

U.S. military hackers have penetrated Russia's electric grid, telecommunications networks and the Kremlin's command systems, making them vulnerable to attack by secret American cyber weapons should the U.S. deem it necessary, according to a senior intelligence official and top-secret documents reviewed by NBC News.

But, of course, since it's the US government leaking this info, no one seems to care. Of course, that's because everyone knows what's going on here. This is US officials basically telling Russia: "Hey, don't mess with our election or we'll do some cyber stuff." The claim that the US has hacked into Russian systems is certainly believable. That's what the NSA does after all (y'know, when it's not collecting info on Americans).

But the whole story is just silly posturing in a weird election year filled with silly posturing about hacks and cyberwar. Who knows what's going to happen tomorrow, but it would be nice if it didn't involve any nation state feeling the need to break out "cyber weapons" for any reason.

Filed Under: cyberwar, election, hack, hack back, leaks, nsa, russia
Companies: nbc

FBI Opens Internal Investigation Into One Of Its Own Twitter Accounts Because Good Lord This Year Is So Stupid

from the great-year-for-comas dept

There's nothing the FBI loves more than an investigation. It's right in the name. The on-again, off-again inspection of Hillary Clinton's emails have given director James Comey a chance to really strut his stuff. It's embarrassing stuff -- stuff his underlings wish he'd stop strutting, but there it is. The White House itself actually weighed in on Comey's latest blurt (which was followed shortly thereafter by tons of controlled leaking) and basically called him a loudmouth.

Because this election season couldn't get any weirder, a long-dormant FBI Twitter bot suddenly came to life and began spewing links to FBI documents about tangentially-related investigations -- like FBI files on the Clinton Foundation. This only raised more questions about the FBI's political leanings. Sure, the FBI has won over parties in both camps thanks to its investigation of Hillary Clinton, but it has infuriatingly chosen to periodically invert the narrative, leaving both parties unsure of how to feel about their new partner in electioneering.

The unexpected burst of activity suggested the FBI was again meddling with the electoral process. Not actually news, of course. The documents had been there all along, but the Twitterbot had failed to inform the public in a timely fashion. It was suppposed to send out a tweet any time the agency dumped something into its FOIA "reading room," but had failed to do so for months.

It was enough to suggest nefarious intent. Because the FBI is nothing if not well-funded, it will be taking a much closer look at its malfunctioning Twitter account. (via Slashdot)

Candice Will, Assistant Director for the FBI’s Office of Professional Responsibility, said she was referring the matter to the FBI’s Inspection Division for an “investigation.” Upon completion of the investigation, the findings will be referred back to the the Office of Professional Responsibility for “adjudication.”

There's a reason for this investigation -- one that will likely find nothing more damning than coding hiccups.

Federal law and FBI policy prohibit employees from using the power of the department to attempt to influence elections.

Odd. It would appear James Comey is unfamiliar with these laws and policies. The social media bot only does what it's told to do. And no one, apparently, is able to tell Comey what to do. Or not to do. But it's the pile of code that will be facing greater scrutiny than James "Rogue One" Comey.

A statement and a preliminary conclusion have already made their appearance. The statement issued by the FBI says that the Twitterbot, like everything else the FBI does (including unlawful deployment of malware), was totally lawful in its spectacularly-timed tweetstorm.

"Per the standard procedure for FOIA, these materials became available for release and were posted automatically and electronically to the FBI’s public reading room in accordance with the law and established procedures,” the FBI said in a statement.

A more innocuous explanation for the ill-timed tweeting is this one:

An FBI official told Motherboard that the FBI Records Vault Twitter account had been dormant for more than a year because of a bug in the FBI.gov content management system (CMS) that links the website where the documents are posted and the social media account. On Sunday, according to the official, the FBI’s IT team pushed a patch to the CMS and fixed the bug, causing the flood of tweets, which had been scheduled over the last few months, to go out on October 30.

Whatever the explanation is, the FBI is pretty much a walking catastrophe at this point -- at least as far as maintaining distance from the electoral process is concerned.

Filed Under: fbi, foia, leaks, politics, releases, social media

Has FBI Director Comey Created A 'Public Interest' Exception To Its Ban On Investigation Disclosures?

from the would-be-nice,-but-won't-happen dept

We noted this towards the end of our post on how the FBI is leaking like a sieve in revealing details about the investigation into Hillary Clinton's emails -- that Comey seemed to be handing reporters a perfect comeback to the bullshit response the FBI normally gives that it "won't comment on ongoing investigations." As the Intercept is now noting, Comey seems to be saying that there's a "public interest" exception to that rule, though as of right now only he gets to decide what's in the public interest:

Comey’s actions have raised lasting questions about when the public interest outweighs the current policy, and whether there should be a “public interest” exception to the Justice Department’s secrecy rules.

In his July announcement, Comey said that “given the importance of the matter, I think unusual transparency is in order.” Part of his goal was clearly to reassert the FBI’s independence from political pressure. “No outside influence of any kind was brought to bear,” he said.

If there were a public interest exception, there are many other high-profile investigations that the Justice Department could be encouraged to discuss.

Of course, the partisan folks out there have made this whole thing hilarious. Back in July, the partisan supporters of Clinton argued that such a public interest exception made perfect sense -- while the Trump supporters argued that this was an abomination and that Comey was "playing politics" in revealing information that he shouldn't have been revealing. In the last week, however, it's the Trump supporters who are suddenly big fans of the "public interest" exception to revealing details of an investigation, while the Clinton supporters are up in arms about "playing politics." Anyone who argued that one was good and the other is bad is a hypocrite. The truth is that Comey was abusing his power both times as he's done for years and years.

From a reporting standpoint, of course, journalists love that Comey is willing to reveal details (and others are willing to leak more after the fact). It provides lots of news to report on -- and we, like others, are happy to report on that information. But from a general public policy standpoint, it's a serious disaster. As Alex Emmons at the Intercept points out, there's a good reason why we don't want the FBI to comment about ongoing investigations:

There’s a reason that the Justice Department has nondisclosure rules about ongoing or closed investigations. Lots of things emerge in investigations that are not true, or do not amount to crimes. Disclosing those things can ruin reputations. So it is typically left to prosecutors to decide what accusations to make public, in the form of an indictment.

A public interest exception sounds like a good thing, but the reality is that it'll be used selectively by law enforcement, and that just creates a huge mess (as seen from the partisan outcry during both moves by Comey).

Filed Under: disclosures, fbi, investigations, james comey, leaks, public interest, public interest exception

The FBI Seems To Be Leaking Like A Sieve Concerning Details Of Clinton Email Invesgitation

from the aren't-they-supposed-to-keep-this-stuff-secret? dept

Okay, look, let's face the fact that any time we write about anything having to do with either Hillary Clinton or Donald Trump, people in the comments go nuts accusing us of being "in the tank," or "shills." or even (really) "up the ass" of one candidate or the other (and, yes, this has happened with both of the major party candidates). I'm assuming it will happen again with this post, even though it's not true. As should be abundantly clear, we're not big fans of either choice (and don't get us started on the third parties...). So when we talk about one, the other (or even both together), it's not because we're "biased" or trying to help or hurt one or the other. We're just doing the same thing we always do, and which we never had a problem with before, which is reporting on policy related issues having to do with technology, free speech, the 4th amendment, law enforcement, etc. So, before you rush in to yell at us in the comments, please consider that maybe just because we're not toeing the party line on your preferred candidate, maybe it's not because we're in the tank for the other one.

Anyway... I know there's been plenty of discussion going on about FBI Director Jim Comey's letter from last week to members of Congress about the state of the Clinton email investigation, which happened due to discoveries during the unrelated investigation into Anthony Weiner's apparent sexting. We also explored the questionable nature of Comey's actions based on the law and previous precedent (though we also mocked both Republicans and Democrats who seemed to completely flip flop their praise/hatred of Comey from the July announcement about not enough evidence against Clinton to Friday's announcement). That one really set off some people, despite our reporting on Comey's questionable behavior in office dates way back to basically when he first got the job.

But here's the thing that got me. Comey's letter on Friday had basically no details at all. Here's what it said again:

In connection with an unrelated case, the FBI has learned of the existence of emails that appear to be pertinent to the investigation. I am writing to inform you that the investigative team briefed me on this yesterday, and I agreed that the FBI should take appropriate investigative steps designed to allow investigators to review these emails to determine whether they contain classified information, as well as to assess their importance to our investigation.

Although the FBI cannot yet assess whether or not this material may be significant, and I cannot predict how long it will take us to complete this additional work, I believe it is important to update your Committees about our efforts in light of my previous testimony.

There's very little actual information in those two short paragraphs. Almost none, in fact. And yet, we now know a ton about what's going on, including all of the following:

• The "unrelated investigation" is the investigation into Anthony Weiner for allegedly sexting an underage girl.
• The emails that the FBI found were on "a device" or "devices" that belonged to Weiner and/or his estranged wife/Clinton aide Huma Abedin
• The FBI actually found these emails months ago, but didn't tell Comey until last Thursday.
• The FBI hadn't actually read the emails because it didn't have a warrant
• The FBI got a warrant over the weekend.
• It is not believed the emails in question were directly from Clinton
• Before sending a letter Comey sent an internal memo to FBI staff about his decision
• Many in the DOJ are upset about Comey sending the letter

Whether or not you believe that list or not -- or whether or not you think there are other things on that list -- what's striking to me is just how much information is easily leaking out of the FBI about a criminal investigation, especially when that investigation is supposedly, in part, about whether or not Clinton's ridiculously negligent handling of sensitive information may have been revealed to hostile parties. Doesn't it seem the least bit bizarre that the FBI, in an investigation about sensitive information, can't seem to help but leak basically all of the relevant details on an investigation?

There are, really, two issues here. Given how much of this information leaked, almost all of it within hours of the letter being made public, why didn't Comey and the FBI just come out and say all of this in the first place? The second, is how the hell can the FBI -- the very same FBI that frequently refuses to comment about "ongoing investigations" -- have any credibility in the future when it refuses to comment on other ongoing investigations. Not only did Comey comment in a way he knew would be made public, the FBI had no problem leaking basically all of the details. Everything about how this went down is bizarre, but the most bizarre part -- which seems to be getting the least attention -- is that the FBI seems to have no problem at all selectively leaking a ton of information about an ongoing investigation when it suddenly wants to do so, despite the fact that it regularly refuses to do so in all sorts of other cases. I don't put much stock in the claim, making the rounds, that the FBI deliberately refused to take part in the administration's decision to claim that Russia was behind various hacks, by arguing that it was "too close to the election," but we do know of plenty of historical cases where the FBI refuses to comment publicly on investigations or reveal any information at all. So why is it leaking like a sieve this time around?

Filed Under: emails, fbi, hillary clinton, investigations, james comey, leaks

Despite Administration's Promises, Most Government Transparency Still The Work Of Whistleblowers And Leakers

from the the-government-can-doxx-you,-but-not-itself dept

Meet the new transparency/Same as the old transparency:

The Justice Department has kept classified at least 74 opinions, memos and letters on national security issues, including interrogation, detention and surveillance, according to a report released Tuesday by the Brennan Center for Justice.

There's nothing in the streets/Looks any different to me:

Also still classified are between 25 and 30 significant opinions issued between 2003 and 2013 by the Foreign Intelligence Surveillance Court (FISC), the secretive federal court that interprets the law governing foreign intelligence-gathering inside the United States.

And the slogans are replaced by-the-by:

[A]t the State Department, 807 international agreements signed between 2004 and 2014 have not been published.

The self-proclaimed "most transparent administration" isn't even more transparent than the last administration -- one run by a hawkish member of a politically-powerful family and given a blank check to increase government power by a terrorist attack on American soil.

Less transparent, perhaps, than any other previous administration, including those run by the truly corrupt (Nixon) or those engaged in actual wars against actual entities (rather than against loosely-defined concepts like "drugs" or "terrorism").

These previous administrations managed to be at least as transparent as the current one, even without the "disadvantages" of being presided over by a lawyer specializing in the Constitution and pushed towards openness by multiple leakers exposing multiple secret surveillance programs.

Of course, the Intelligence Community is claiming it's more transparent than ever.

“In the last several years the government has engaged in an unprecedented level of transparency regarding its intelligence collection authorities,” said Brian Hale, a spokesman for the Office of the Director of National Intelligence. Hale said that the transparency includes releasing thousands of pages of documents related to foreign intelligence surveillance on U.S. soil and numerous FISC opinions, including five opinions this year.

When the baseline is zero release, it's pretty easy to surpass these expectations while not being appreciably transparent. The Office of Legal Counsel claims national security prevents the release of these opinions. That may be true in some cases, but secret legal interpretations that have been pried loose suggest some of what's being withheld may just be legal guidance a great deal of the American public would object to. Washington Post's Ellen Nakashima points to the paper's publication of a 2002 OLC opinion that claimed torturing terrorism suspects was not only justified, but violated no international laws forbidding torture. The opinion claimed it was the laws that were bad, not the torture.

[I]nternational laws against torture “may be unconstitutional if applied to interrogations.”

Meanwhile, "national security" is also what's preventing almost half of the agreements made between the US and foreign governments from being published. But the State Department also notes that this is far from the only reason the agency won't allow the American public to know what legal bargains have been struck by their government.

State Department spokesman John Kirby said in a statement that “not every non-publication of an agreement is due to national security purposes.” The law affords multiple exemptions, he noted.

As for the FISC opinions, they're apparently undergoing declassification. But even though the ODNI has made significant strides towards opening up the inner workings of the nation's most secretive court, the releases have been inconsistent and lag far behind the issuing of the court's orders. On top of that, the ODNI has shown less interest in releasing FISC opinions dating back several years, presumably figuring that the new transparency is mostly a "going forward" concern. The ACLU is now suing the government, hoping to force the release of FISC opinions dating back to 2001.

Whatever transparency that now exists in the federal government isn't due to President Obama's pre-election sloganeering. It's been forced on the White House by whistleblowers and leakers. And the response has been far from adequate. When not prosecuting whistleblowers, the Obama administration has moved forward tentatively with plans that are mostly of the "will this do?" variety. His two possible replacements -- a plutocrat who seems to think fascism will make America "great" again and a career politician who found the secretive State Department not quite secretive enough -- offer little hope of expanded transparency in the coming years.

Filed Under: governments, leaks, secrecy, transparency, whistleblowing

Intel Community To Institute Actual Whistleblower Award For 'Speaking Truth To Power'

from the previous-whistleblowers-need-not-apply dept

The Intelligence Community is looking to reward whistleblowers for "speaking truth to power." No, seriously. Steven Aftergood of Secrecy News has posted a recent Intel Community announcement [PDF] that looks to fold a whistleblower honor into the community's existing awards program.

This is part of the intel community's cautious foray into the harsh sunlight of transparency -- itself a response to a presidential directive that our nation's spies head outside for a bit and expose themselves a bit.

The award may as well be called the "Snowden." But the wording makes it explicit Snowden himself will never be eligible to receive the honorific fruits of his whistleblowing.

“The intelligence community has […] committed to establishing a National Intelligence Professional Awards program to recognize superior service by an intelligence professional in effectuating change by speaking truth to power, by exemplifying professional integrity, or by reporting wrongdoing through appropriate channels,” according to a new Self-Assessment Report on the Third Open Government National Action Plan that was released by the White House last week.

It could be argued Snowden's leaks "spoke truth to power," but it's going to be a bit hard to get past the "through appropriate channels" clause, which seems to be the last refuge of anti-Snowden scoundrels: "Yes, his leaks lead to much-needed changes, but he should have used the proper channels where he would have been ignored/retaliated against!" Then again, the award stipulations has an "or" before "reporting wrongdoing through appropriate channels," so being told to shut up and mind your own business by Congressional intelligence committees may not be required to land this new award.

It will be interesting to see how receptive the intelligence committee actually is to whistleblowing. This award may end up being handed out to whistleblowers whose complaints result in the least amount of internal turmoil. Aftergood notes surveillance agencies haven't historically been receptive to constructive criticism… or any criticism, really.

Professional integrity may be welcome everywhere, but “speaking truth to power” is rarely welcomed by “power.” Often it is not even acknowledged as “truth.” (Apparently, the IC envisions itself here as the domain of truth, and not of power. Or will those who challenge the IC leadership itself be eligible for the new award?) Meanwhile, “reporting wrongdoing” often seems to end badly for the reporter, as the frequency of whistleblower reprisal claims indicates.

If the IC moves forward with this award in an honest fashion, it will be a refreshing change from the longtime policy of "bullets for messengers" that has been implemented with particular fervor by this administration. Aftergood believes there may be reason to believe this may not just be the Intelligence Committee looking busy for the boss. Presidential directives come and go but honorifics last forever. Nothing like this would be instituted if it didn't actually reflect values the IC wants to promote.

Whether or not the IC intends to celebrate its own internal critics, it seems to want to encourage and now incentivize them, providing improved channels for dissent and whistleblowing that will not inevitably be career-enders or needlessly disruptive in other ways.

I guess we'll see where this goes. It would be nice if the New Transparency resulted in a livestream of a James Clapper-hosted awards show, broadcast from an undisclosed location in a room draped in American flags and the low hum of server farms. Failing that, a mostly-unredacted document dump on a Friday afternoon preceding a holiday weekend would be an adequate substitute, I suppose.

Filed Under: intelligence community, leaks, truth to power, whistleblowers