FCC Boss Being Investigated By His Own Agency For Being Too Cozy With The Industry He Regulates

from the not-particularly-shocking dept

If you watched FCC boss Ajit Pai's rushed repeal of net neutrality there really shouldn't be any question about where Pai's loyalties lie, and it certainly isn't with smaller companies, healthy competition, transparency, openness, innovation, or American consumers. The agency head repeatedly lied about the justifications for the repeal, casually using fabricated data to justify what may just be the least popular policy decision in this history of modern technology. Pai's fealty to giant monopolies runs so deep, his agency now just directs reporters to lobbying talking points when they question the flimsy logic propping up the repeal.

So for those paying attention, it's probably not too surprising to see news that the FCC's own Inspector General is investigating the agency boss for being a bit too cozy with the giant companies he's supposed to be holding accountable:

"Last April, the chairman of the Federal Communications Commission, Ajit Pai, led the charge for his agency to approve rules allowing television broadcasters to greatly increase the number of stations they own. A few weeks later, Sinclair Broadcasting announced a blockbuster $3.9 billion deal to buy Tribune Media — a deal those new rules made possible.

By the end of the year, in a previously undisclosed move, the top internal watchdog for the F.C.C. opened an investigation into whether Mr. Pai and his aides had improperly pushed for the rule changes and whether they had timed them to benefit Sinclair, according to Representative Frank Pallone of New Jersey and two congressional aides."

Sinclair's $3.9 billion acquisition of Tribune Media has already faced broad, bipartisan opposition by those concerned that the merger will dramatically damage both competition and opinion diversity across countless markets nationwide. The Sinclair Tribune tie up would give Sinclair ownership of more than 230 local broadcast stations around the nation, allowing it to reach 72% of the public with "reporting" frequently lamented as grotesquely distorted on a good day.

Sinclair's latest merger couldn't occur without Pai's decision to gut numerous media consolidation rules over the last few months, including several decades old rules specifically designed to prevent any one company from unfairly dominating a media market and crushing local competition. Unsurprisingly, consumer groups were quick to seize on the news suggesting that the agency should suspend its review of the merger until the Inspector General inquiry is complete:

"Until the inspector general’s investigation is complete, Chairman Pai and any other FCC staff subject to this inquiry should recuse themselves from all dealings related to Sinclair’s proposed takeover of Tribune Media," Free Press Senior Counsel Jessica J. González said in a statement. "If the investigation finds that Pai or any other FCC staff did indeed let their own bias and favoritism shape decisions related to the deal, they must not be permitted to vote on this matter and they should be subject to other appropriate ethics-review processes."

Of course if you're familiar with Pai's work, you know that won't be happening, and in Pai's ideologically-blinded brain this will all be dismissed as the errant rantings of partisans. But again, opposition to this deal is fairly uniform across the spectrum. Conservatives don't like it because they realize Sinclair is going to squeeze smaller media outlets out of the equation unfairly. Liberals don't like it because they know Sinclair is going to fill the airwaves with more nonsense just as we're trying to get a hold on problems inherent in foreign influence, disinformation, and discourse quality.

Regardless, Pai's going to have a very busy few years. He's already facing several different inquiries into why his agency made up DDOS attacks and turned a blind eye to identity theft as part of an apparent attempt to downplay massive public opposition to his policies. He's also facing several law enforcement inquiries (one of which he's actively blocking) and numerous lawsuits into his agency's blatant disregard of the public interest. And while this particular inquiry may not conclude that Pai technically broke the law or violated agency rules, it's pretty hard to act confused about where Pai's loyalties truly lie.

Filed Under: ajit pai, crony capitalism, fcc, inspector general, media ownership, ownership rules
Companies: sinclair broadcasting, tribune media

Intelligence Community Apparently Wants More Snowdens, Continues Ouster Of Official Whistleblower Channel

from the need-more-unauthorized-whistleblowing dept

The Intelligence Community -- sixteen government agencies engaged in intelligence work under the ODNI's direction -- doesn't have much in the way of effective oversight. It's also not fond of whistleblowers, despite several legislative efforts to force the IC to play nice with those who report wrongdoing. Because of this, it's been repeatedly rocked by leaks. That's the sort of thing that happens when someone clamps down on the official whistleblowing routes: the pressure has to escape somewhere.

Things will get worse in the IC, especially for whistleblowers, before it gets any better… or if it gets any better. A few months ago, the IC began ousting its in-house oversight. Dan Meyers, the Inspector General for the IC, is slowly and steadily being stripped of his power. Not only is Meyers barred from communicating with whistleblowers, but he's forbidden from briefing Congress or IC agencies about his office's tasks. He's also been stripped of his staff.

Things have gone from bad to worse, Jenna McLaughlin reports:

The chairman of the the U.S. Senate Judiciary Committee is demanding to know why an employee in charge of whistleblower outreach was removed from his workplace “pending a tribunal.”

“I just learned that Dan Meyer, the Executive Director of Intelligence Community Whistleblowing and Source Protection, was placed on administrative leave and escorted out of his offices pending a tribunal before senior executives to consider his proposed termination,” wrote Sen. Chuck Grassley, a Republican from Iowa, in a letter sent November 29 to Director of National Intelligence Dan Coats and Wayne Stone, the acting director of Office of the Inspector General of the Intelligence Community.

No one's saying why Meyer is being booted from the IG's office, but it appears to be related to the Trump administration's war on leakers. There's no room in the current administration for whistleblowing, and that's going to be a problem going forward. Removing lifeboats won't prevent a ship from being sunk.

Some inside the intelligence community remain concerned that sidelining Meyer, who helps employees field complaints legally, could inadvertently lead to the next major leaker, like former NSA contractor Edward Snowden.

Meyer is out as Inspector General and no replacement has been picked to head the IC's internal oversight. Senator Grassley, who's generally been good on whistleblower issues, seems to feel Meyer's ouster is retaliatory -- that his office is viewed as a threat to the government for encouraging whistleblowers to come forward with evidence of misconduct or malfeasance.

Grassley argued it is important that Meyer be protected from retaliation for managing his whistleblower protection program, and demanded any records and documents relating to his case.

“For the agency to take such a drastic personnel action while there is no confirmed, permanent Inspector General in place irreparably undermines the independence of that office,” he wrote.

The lack of a successor is concerning. It shows the agencies involved in the ouster aren't interested in any form of oversight, much less honoring laws protecting whistleblowers. IC employees with concerns will have no official outlet to bring their complaints and concerns to. This leaves only unofficial routes, which certainly can't be the administration's intention. Agencies with the power to violate rights en masse via unauthorized or misused surveillance can't be left to sort out their own internal issues.

Filed Under: dan coats, dan meyer, inspector general, intelligence communicate, odni, official channels, whistleblowers

Shocker: FOIA Request Shows Yet Another Core Justification For Repealing Net Neutrality Was Bullshit

from the post-truth-apocalypse dept

We've pretty well established by now that the FCC's repeal of net neutrality is being justified by a lot of fluff and nonsense with no factual basis in reality. Like claims that net neutrality killed sector investment, which are easily debunked by SEC filings, earnings reports, and numerous public CEO comments to investors (who, unlike you, they're legally not allowed to lie to). From Ajit Pai's claims that net neutrality emboldens fascists in North Korea and Iran, to his most recent claim that net neutrality fears were overhyped because Twitter still somehow works, blatant bullshit is the foundation of this entire repeal effort.

For years now, one constant bit of bullshit spread by ISPs was the claim that the Obama-era White House somehow "illegally pressured" Tom Wheeler's FCC into passing tougher net neutrality rules. As we noted at the time that claim was nonsensical, since there's no law stopping the White House from expressing its opinion on what policy should be. From Bill Clinton urging then FCC boss Reed Hundt to ban alcohol ads on TV, to George W Bush telling then FCC boss Michael Powell to deregulate media ownership, such behavior is historically perfectly normal.

Again, this fact didn't stop ISPs and their water carriers in Congress and key media outlets from repeatedly trying to claim that Obama engaged in all manner of shifty behavior to force the FCC to create the rules. The Wall Street Journal in 2014, for example, professed that "unusual, secretive efforts inside the White House" caused FCC boss Tom Wheeler to shift his position from weaker, Title I based rules, to tougher Title II based rules. The idea that Obama's White House had undertaken a covert "federal takeover of the internet" quickly became gospel across countless partisan echoverses.

The criticism was enough to drive investigations in both the Senate and by the FCC’s Inspector General. And while nobody from either government body could be bothered to tell the public the outcome of these investigations, Motherboard recently filed several FOIA requests that now show the outcome of these investigations wound up being a giant bupkis:

"After reviewing more than 600,000 emails, the independent office found that there was no collusion between the White House and the FCC: “We found no evidence of secret deals, promises, or threats from anyone outside the Commission, nor any evidence of any other improper use of power to influence the FCC decision-making process."

Which again, was what we suggested back in early 2015. None of the claims that heralded Obama's "illegal takeover of the internet" had the slightest bit of evidence in support of them, noted the FCC Inspector General's report:

"Nothing we found refuted the factual findings in the Senate Staff Report,” the IG wrote (bolding by agency). “More importantly, nothing we found in the complete, unredacted record evidenced any undue influence that would have militated in favor of a more comprehensive investigation."

What the Inspector General found, then, were career public servants doing their job: “Nothing in these, or in any other emails appeared to indicate there was pressure to delay the Order from the December meeting from any source other than concerned FCC staffers,” the report found, adding that there was “no indication” that a draft of the net neutrality regulations had been circulated improperly.

Obama's first FCC boss Julius Genachowski was arguably a wishy washy fence sitter. But his replacement Tom Wheeler wound up actually being the rare type of person capable of changing his mind based on the available evidence. And when the available evidence (and the courts) made it clear that you can't have effective net neutrality rules without classifying ISPs as common carriers until Title II of the Communications Act, that's exactly what Wheeler did. He didn't make an evidence-based decision because of some secret White House cabal, he did it because that was his fucking job. And he's subsequently been punished for it.

Of course the very idea that net neutrality (aka wanting a healthy, competitive internet) is somehow partisan was already bullshit in and of itself. It's a construct built by the telecom industry's lobbying and policy apparatus, perpetuated by numerous ISP-funded groups. The express goal is to divide the public, sow dissent, and stall meaningful reform of a broken, uncompetitive market. If you hadn't noticed, this tactic has proven immeasurably successful.

Filed Under: ajit pai, barack obama, fcc, inspector general, interference, lies, tom wheeler, white house

DHS Trying To Bury Report Showing Violations Of Travel Ban Court Orders By CBP Officers

from the neutralizing-oversight dept

An Inspector General's report showing Customs and Border Protection violated court orders during its implementation of Trump's travel ban appears to be headed for a burial by the DHS. A letter from the Inspector General to high-ranking senators says the department has indicated it will invoke an unchallengeable privilege to withhold large portions of the report, if not its entire contents.

The unusual missive to Congress on Monday from Inspector General John Roth said his 87-page report was sent to DHS leadership Oct. 6, but officials have declined to authorize its release over the past six weeks.

Roth said officials informed his office that the report is under review for information that may be subject to attorney-client privilege or to a privilege protecting the agency's "deliberative process."

The IG's letter [PDF] makes it clear the invocation of "deliberative process" privilege is highly unusual in this context. It's usually invoked in FOIA cases to withhold certain information. The problem with its invocation in the context of an IG report release is that it prevents anyone from challenging the DHS's decision.

The deliberative process privilege is a common law privilege, largely invoked in Freedom of Information Act (FOIA) and civil litigation, which permits (but does not require) the government from disclosing predecisional and deliberative communications because of the potential chilling effect such disclosure would have on the candid deliberations and back-and-forth discussion that effective policy-making requires. However, invoking the privilege can mask discovery of decisions made based on illegitimate considerations, or evidence of outright misconduct.

For that reason, in civil litigation the privilege is not absolute but requires a court to balance the competing interests of the parties. This has been interpreted to mean that a party requesting the information may overcome the privilege by showing a "sufficient need for the material in the context of the facts or the nature of the case . . . or by making a prima facie showing of misconduct." Unlike civil litigants, however, we are not able to have a federal court or other disinterested party decide these issues, but must rely on the good faith of the Department.

This leaves the decision entirely in the DHS's hands and no one in the Inspector General's office can do anything about it. Evidence of wrongdoing, it could be swept under the carpet by the DHS. It's unclear what Congressional leaders can do it about this (or even how many of them would actually be interested in fighting the DHS's privilege invocation), but at least the public is now aware evidence of court order violations is in the process of being memory-holed by the administration.

The report -- at least what can be gleaned from the Inspector General's letter -- isn't completely damning. It notes the implementation of the travel ban took place during several courtroom challenges and involved conflicting directives from White House and the DHS. Perhaps most CBP officers did the best they could during the disorganized chaos, but that still didn't prevent key violations from occurring.

Roth said CBP defied court orders by providing guidance to airlines not to allow travelers from certain countries to board flights bound for the U.S.

"While CBP complied with court orders at U.S. ports of entry with travelers who had already arrived, CBP was very aggressive in preventing affected travelers from boarding aircraft bound for the United States, and took actions that, in our view, violated, two separate court orders," he wrote.

As Politico notes, FOIAed communications show DHS officials were troubled by the continual lack of clear internal guidance, as well as contradictory statements made by White House officials. The court orders, however, were much more direct and clear and yet CBP officials violated them repeatedly.

That's where the IG's sympathies end. The DHS watchdog doesn't hedge when it comes to addressing the report's planned burial.

I am particularly troubled by the Department's threat to invoke the deliberative process privilege, as this is the first time in my tenure as Inspector General that the Department has indicated that they may assert this privilege in connection with one of our reports or considered preventing the release of a report on that basis. In fact, we regularly have published dozens of reports that delve into the Department's rationale for specific policies and decisions, and comment on the basis and process on which those decisions were made. Indeed, that is at the heart of what Inspectors General do.

[...]

Invoking the deliberative process privilege, in this report and in future reports, would significantly hamper my office's ability to keep "Congress fully and currently informed about problems and deficiencies" of the Department, as required by the Inspector General Act. I am also unaware of other Inspectors General who have been prevented from issuing reports on such a basis. With regard to this specific report, it would deprive Congress and the public of significant insights into the operation of the Department. Moreover, because we have concluded that CBP appears to have violated at least two separate court orders, we will be unable to describe the factual basis behind our conclusion.

Burial by the DHS without the input of neutral parties would do little to rebuild the trust broken by the CBP's violation of court orders.

Filed Under: cbp, congress, deliberative process, dhs, hiding report, inspector general, john roth, transparency, travel ban

Seeking To Root Out Leakers, The Intelligence Community Is Destroying Official Routes For Whistleblowers

from the ensuring-there's-only-one-way-out dept

The Trump Administration is continuing its war on leakers. It's probably meant to keep whistleblowers at bay as well. This isn't necessarily a trait unique to Trump's White House. There really hasn't been a whistleblower-friendly administration in pretty much ever, but this particular administration has been awash in leaked documents, each one prompting more severe crackdowns.

But it's going to come to a head at the national security level. The "Intelligence Community" -- sixteen agencies participating and partaking in intelligence analysis and collection under the Office of the Director of National Intelligence -- is basically ousting its internal oversight. Jenna McLaughlin, writing for Foreign Policy, has the details.

[Dan] Meyer, whose job is to talk to intelligence community whistleblowers, can no longer talk to whistleblowers. He has been barred from communicating with whistleblowers, the main responsibility of his job as the executive director for intelligence community whistleblowing and source protection. He is currently working on an instructional pamphlet for whistleblowers, and he will have no duties to perform after he’s completed that work.

He can also no longer brief the agencies or the congressional committees on his work as he’s done in the past, send out his whistleblower newsletter, or conduct outreach. And he has no deputy or staff.

This is the end result of internal struggles and the continual sidelining of the so-called "proper channels." They weren't worth much when Snowden decided to leak. They were relatively worthless when others leaked documents years before Snowden began changing the intelligence community from the far outside. And if they were ever going to be worth anything, that effort has been derailed in favor of hunting down leakers.

This is incredibly stupid. If the administration wants to stop leaks, one of the better tools is proper channels that actually work -- ones that get results and shield whistleblowers from retaliation. Instead, intelligence officials have decided leaking and whistleblowing are pretty much the same thing and have headed off attempts to build an official whistleblowing outfit worth a damn

What's being ousted, bit by bit, is the IC's Inspector General's office. Elimination of whistleblower outlets may only be part of the plan. Once rendered toothless, it may be prevented from performing other oversight duties. But the war of leakers starts where it always starts: with whistleblowers. If the Inspector General's office is completely neutralized, the only option will be leaking, not exactly the best news for this particularly sieve-like administration.

Filed Under: inspector general, intelligence community, leaks, whistleblowers

DEA Agent Gave Convict Girlfriend Access To Evidence, Classified Info; Received Almost No Punishment

from the above-the-law-and-unaffected-by-useless-internal-policies dept

Routine misconduct by DEA agents? The DEA could not possibly care less. An Inspector General's report released in 2015 in the aftermath of a sex-parties-and-harassment investigation showed 8 of the 14 agents investigated received bonuses and awards while still under investigation, a violation of DEA policy. None of the agents were fired or even demoted. The DEA's unwillingness to address serious misdeeds seriously made it clear DEA agents are nigh un-fireable.

Even minor disciplinary actions tend to be rolled back, as the Inspector General's office reports [PDF]. An agent engaging in plenty of unrelated misconduct found himself stripped of his security clearance, but only momentarily. The list of things the agent did wrong is as impressive as it is disturbing. [h/t Brad Heath]

The DEA Office of Professional Responsibility (DEA OPR) learned about the Special Agent’s misconduct in 2013. The Special Agent admitted to DEA OPR that he had, among other things: carried on an extramarital affair with a woman who was a convicted criminal; allowed her after-hours access to a DEA office, including a drug evidence room; allowed her to listen to recorded telephone calls of subjects of DEA investigations; and had sex with her on numerous occasions in the DEA office and his DEA vehicle.

That the DEA chose not to fire this employee or subject him to something harsher than a (very) temporary suspension of his security clearance is no surprise given the DEA's historical disinterest in disciplining its employees.

Although the OIG found that there were relatively few such allegations reported for fiscal years 2009 through 2012, the report identified significant systemic issues with the components’ processes for handling these important matters that led the OIG to recommend prompt corrective action by the Department.24 Most notably, with respect to the DEA, the OIG found instances where DEA OPR failed to refer allegations involving sexual behavior that raised security concerns to Security Programs, potentially exposing DEA employees to coercion, extortion, and blackmail, all of which create security risks.25 The OIG also found instances where DEA OPR failed to fully investigate allegations of serious sexual misconduct and sexual harassment.

Following the DEA's investigation of the agent, officials decided to strip him of his security clearance. But this was swiftly reversed.

Based on the Special Agent’s misconduct and inconsistent statements, on March 24, 2015, the DEA Security Programs Manager (SPM) suspended the Special Agent’s clearance, rendering him ineligible for access to classified (and, by DEA policy, ineligible for access to DEA sensitive information). However, 3 days later, then-DEA Acting Chief Inspector Herman E. “Chuck” Whaley instructed the SPM to reinstate the Special Agent’s clearance.

Whaley's reasoning: this obviously-untrustworthy employee could be trusted with his security clearance because his long list of violations didn't have national security implications. This call was made despite the agent being unable to say for sure how much classified info he'd allowed his convicted criminal girlfriend to see nor being able to fully recall how often (and for how long) he'd allowed her to roam the DEA's evidence room unattended. Whaley made this decision unilaterally, bypassing the SPM and others charged with controlling security clearances.

The report points out Whaley misunderstood his position within the DEA hierarchy, thus arriving at the mistaken conclusion he could reinstate security clearances without running it by the SPM. But, as the Inspector General points out, the decision was still a terrible one to make, especially in light of all the other information Whaley had access to.

Whaley’s actions also reflected a disregard for the OIG's findings in the several drafts (October 2014, February 2015, March 2015) and final (March 2015) reports regarding the handling of sexual harassment and misconduct allegations by the DEA and other DOJ components. Whaley was familiar with the OIG review, having received a draft report as early as October 2014, and was responsible for revising DEA policy to address this precise issue. Among other things, the OIG report identified security risks created when DEA OPR employees untrained in security adjudications were allowed to determine whether to refer findings of sexual or other misconduct to Security Programs.

Nonetheless in late March 2015, Whaley reviewed DEA OPR’s August 2013 Stentsen investigation, which identified both sexual conduct and potential security concerns (including disclosing DEA sensitive information to unauthorized personnel, using a state law enforcement database for personal reasons, providing a girlfriend with access to the DEA facility after hours, and associating with a criminal), and he did not make any effort to discuss the matter with Cone, ensure that he himself was aware of all the relevant information, or ask whether the Stentsen case warranted closer attention given the findings in the OIG report. Whaley’s lack of leadership in this regard is particularly troubling considering that on March 26 (the day before Whaley instructed Cone to reverse his decision), the OIG publicly released the final report, Congress ordered hearings, and the national media reported the story.

The OIG also finds it worrying Whaley was more concerned about superficialities, rather than ensuring his underling was properly disciplined for his severe misconduct.

Whaley told the OIG that had he known that Stentsen had received notification of his suspension, he would not have directed Cone to reinstate the security clearance essentially because it would have looked unprofessional for DEA to change positions after the fact. Putting aside the suggestion that substantive decisions on security clearances would be impacted by such consideration of appearances, we note that Cone had e-mailed Whaley a copy of the final signed and dated suspension memorandum to Stentsen on March 24 but Whaley was not aware that it had already been sent to Stentsen’s supervisors and served on Stentsen.

It's just more evidence America's law enforcement agencies are far more concerned with external police work than with internal accountability. It also shows the DEA is systemically averse to internal discipline. The scandal referenced earlier made headlines around the nation, but DEA officials still refused to hand out anything more than wrist slaps. And those wrist slaps often came packaged with bonuses, awards, and personnel moves that strongly suggested the DEA was willing to forgive all but the most egregious misconduct, even while under the glare of the national spotlight.

Filed Under: dea, evidence closet, inspector general, misbehavior

National Security Work Leaves Plenty Of Time For Games, Outside Employment, And Sexual Misconduct

from the BE-YOUR-OWN-BOSS-WORK-ONLY-4-HR-SHIFTS-ETC! dept

FOIA terrorist Jason Leopold has scored another win, securing a copy of an Intelligence Community Inspector General's investigation from the Office of the Director of National Intelligence. It's the sort of thing that's rarely released, most likely because it comes from the inner sanctum's inner sanctum. Maybe this one just seemed too damning to keep secret -- not for the ODNI or the Intelligence Community, but for the unnamed (well... redacted) ODNI employee who was caught abusing all sorts of policies, procedures, and laws while on the clock.

The investigation report [PDF] opens with a list of five violations affecting all areas of the employee's work. And also possibly some violations of other employees.

Subject engaged in conflicts of interest

Subject engaged in improper or unauthorized outside employment

Subject engaged in falsification and misrepresentation

Subject misused government information and information systems.

Subject engaged in sexual misconduct while on duty

So, a very busy employee, albeit one not actually doing much to fulfill the job description. When she wasn't working for the government (which was apparently most of her shift), she was working for up to 14 other companies. The report says the employee "averaged in excess of five hours per day on personal affairs and unofficial business."

What she was supposed to be doing was managing secured databases/sites and providing budget planning. What she actually did was handle work for outside companies while collecting a paycheck from taxpayers. This included companies currently being used by the IC as contractors and those seeking to win government contracts -- contradicting the information she gave supervisors and presented in disclosure forms. Even with this additional, conflicting workload, she still found plenty of time to do nothing.

A counterintelligence analyst remarked of [redacted] in an assessment of the audits from May 2010 to May 2013, "I have highlighted the subject's game playing, and noted the trends. Subject appears to use specific gaming sites for a set period of time and then switches to a new site ... There do not appear to be any major gaps in time where subject was not visiting some type of gaming site."

Working for fifteen employers is far less of a strain than I have been led to believe

When confronted with the issue of illegal executables, games, and inappropriate chats on her account during the interview, [redacted] admitted that she spends approximately "all day" on Facebook and plays games at work from four to six hours per day. She also admitted that she engaged in sexually explicit Sametimes with a contractor for the first year of her employment with ODNI.

The bar has been raised for wasting time at work. Between the games and providing some sort of assistance to fourteen outside companies (and engaging in sexual misconduct), the employee also found time to repeatedly access government databases for personal reasons. One of her favorite Privacy Act violations targeted the IC's most famous/infamous former member.

Between June 10, 2013 and July 2, 2013, [redacted] ran JPAS [Joint Personnel Adjudication System] record searches for Edward Snowden 357 times under three of her accounts (Link Solutions, Augusta Westland, and Twin Soft Corporation) while at ODNI facilities during duty hours. According to the Defense Manpower Data Center's Manual on JPAS Account Management, one of the most common JPAS user violations is "querying the JPAS application for 'celebrity' records." This policy is explicitly forbidden in the manuals for JPAS. In the case of 357 unauthorized JPAS queries, [redacted] violated the Privacy Act.

[...]

Between June 10, 2013, and May 19, 2014, [redacted] ran JPAS record-searches for her own record 442 times under four accounts (Link Solutions, Augusta Westland, 99999 Consulting, and Wheeler Network Design). 324 of the 442 JPAS violations in this case were performed while at ODNI facilities during duty hours. According to the Defense Manpower Data Center's Manual on JPAS Account Management, one of the most common JPAS user violations is "querying the JPAS application for your own record." This policy is explicitly forbidden in the manuals for JPAS.

Unfortunately, the report doesn't say what happened to this employee. Some of the IG's conclusions are redacted while others only say the investigation confirmed abuse of systems or violated policies. Her outside compensation also drew the heat of the IRS, which stepped in to examine her tax returns -- which she filed on the clock using an IC computer. It's been confirmed Snowden's privacy was violated, but I would imagine the IC feels he won't be filing a lawsuit anytime soon. It's difficult to believe this person could still be working for the government, but it's far from impossible she's still collecting a taxpayer-funded paycheck somewhere. The wheels of bureaucracy grind slower than the wheels of justice and this combines a little of both.

Filed Under: inspector general, intelligence community, misconduct, national security, odni

Trump Lawyer Threatens To Report A Former FBI Employee To The Inspector General

from the IT-GOES-ALL-THE-WAY-TO-THE-TOP dept

President Trump served up plenty of responses to former FBI director James Comey's testimony before the Senate. Some he served up himself, like his contradictory claim Comey was lying about everything, but somehow vindicating Trump at the same time. Some were served up by his legal representation, which weren't much better despite being composed by an actual lawyer and not being limited to 140 characters.

The most extraordinary thing to come out of the hearing the Senate Select Committee on Intelligence held Thursday may not be former FBI Director James Comey’s testimony, but the baffling, typo-riddled response to that testimony issued by Donald Trump’s personal attorney Marc Kasowitz.

Perhaps the most irresponsible aspect of Kasowitz’s press release was the suggestion that Comey might have violated the law by relaying his account of unclassified conversations with Trump to the press, via a friend. As a veritable chorus of legal scholars, including our own Steve Vladeck, have already observed, this is arrant nonsense. Indeed, it is so clearly false that it’s hard to see how a minimally competent attorney could have made it in good faith——though it will doubtless make perfectly serviceable chum for the cable news shows.

This only scratches the surface, however. The whole document is so remarkable for both its sloppiness and disingenuousness that it’s worth going through paragraph by paragraph.

...Which Julian Sanchez then does. I wholeheartedly encourage you to click through and read the entire evisceration, which shows Trump's lawyer denying claims Comey never made and conflating private conversations with classified documents.

That leads to another one of Trump's lawyer's more ridiculous assertions. It wasn't covered directly in the press release, but apparently Trump (and his lawyer) believe they can somehow punish someone Trump has already fired.

President Donald Trump's outside counsel will file a leak complaint regarding former FBI Director James Comey's leaked memos with the Department of Justice, a source close to the outside legal team tells NBC News.

Trump lawyer Marc Kasowitz will file the complaint with the DOJ's Inspector General and the Senate Judiciary Committee after Comey testified Thursday that he allowed a personal friend to leak an unclassified memo of his conversations with the president to news outlets in hopes it would trigger the appointment of a special counsel.

Cue the laughter. If Kasowitz wanted this threat to have any weight, he probably should have pulled the trigger before Trump fired Comey. At best, an investigation might make it harder for Comey to return to the FBI, something I doubt Comey has any interest in doing.

Furthermore, the underlying conceit -- that's there's anything to file a formal complaint about -- is severely flawed.

“Any complaint on what Jim testified yesterday, in my opinion, would be frivolous for the following reason,” said [Lawfare Editor Benjamin] Wittes in an interview with Yahoo News Deputy Editor Daniel Klaidman. “First of all, Comey was very clear that the memo that he wrote was intentionally written in unclassified form so that it would not be bound up in classification rules. So if the claim is that he’s admitted to leaking classified information, that’s simply factually false.”

[...]

“The real issue is whether the president has a reasonable expectation of confidentiality when he fires somebody and then lies about the circumstances in which he did that, and that strikes me as a matter in which to ask that question is also to answer it,” said Wittes. “The proper answer to Mr. Kasowitz’s complaint is laughter."

As any law enforcement official can tell you, privacy expectations in shared conversations only stretch as far as the other participants are willing to take them. Even in an executive branch setting, an informal conversation does not instantly become classified or top secret or whatever it is the president wishes it was the moment it ends.

There also is no leak. Comey's personal memorializations of conversations with someone unrelated to an ongoing investigation are not the sort of thing that can be leaked -- at least not in the context being used by Trump's lawyer. Comey can hand out copies of these memos to whoever he wants, because they're his recollections, not FBI investigative documents.

If Trump is seeking someone to blame for Comey's actions, he has no one to blame but himself. It's become apparent Comey was fired for not pledging his allegiance to Trump, rather than for any genuine misdeeds related to his job as FBI director. Once Trump unceremoniously shitcanned Comey, any hope Comey might keep his conversational memos secret was lost forever. These statements by Trump's lawyer are legal grandstanding. There's nothing in them of substance. But there doesn't have to be. The assertions appeal to Trump's base, and to President Trump, that's all that really matters.

Filed Under: doj, donald trump, fbi, inspector general, james comey, leaks, mark kasowitz

Inspector General Report Shows DEA Covering Up Its Role In A Shooting That Left Four Foreign Citizens Dead

from the civilian-casualties-in-the-war-on-drugs dept

Here's the latest on how we're winning the Drug War, stripped of the DEA's deceit and spin by the Office of the Inspector General. The report [PDF] takes a look at three incidents the DEA was involved with in Honduras during 2012. The DEA's FAST (Foreign-Deployed Advisory and Support Team) team was supposed to help Honduran drug warriors (TRT-- Tactical Response Teams) fight the local drug war. It was only supposed to act in an advisory role, but it took a much more hands-on approach.

A seized boat loaded with cocaine lost power in the middle of a river on its way back to the nearest village. While drifting around awaiting rescue, a passenger boat "made contact" with the seized boat (called a "pipante"). All hell broke loose.

Video recorded by a CBP surveillance plane shows that, following contact, officers in the pipante fired at the passenger boat. The gunfire continued for about 26 seconds, including several seconds when officers in the pipante appear to be shooting at people in the water who had fallen or jumped from the passenger boat.

The spin machine began shortly after this. First, the DEA claimed it wasn't a passenger boat, but rather drug dealers coming to reclaim their stash. Gunshots were fired by people on the boat, according to the joint task force, even though video of the incident showed otherwise. And the DEA apparently felt its advisory role included telling Honduran helicopter door gunners where to shoot.

At least one DEA FAST member observing the encounter from a helicopter directed a Honduran door gunner to fire his machine gun. The door gunner then fired multiple rounds at the passenger boat.

Finally:

No evidence of narcotics was ever found on the passenger boat.

These are ugly facts, but the DEA -- along with the Honduran task force -- did everything they could to prevent these facts from being uncovered. As for the civilians caught in the literal crossfire? Sorry about that. Maybe try moving to a country without a drug war.

FAST and TRT did not conduct a search and rescue mission for individuals from the passenger boat who may have been injured, and instead focused solely on recovering the law enforcement officers stranded in the pipante. After the recovery of the officers and the cocaine from the pipante, the ground team loaded the helicopters and returned to base.

And the DEA might have gotten away with it if too, if it hadn't been for pesky, frightened locals.

Embassy officials soon received reports from Ahuas that innocent civilians had been killed and injured and that there had been abusive police activity in a nearby village.

Not that this evidence (which the OIG report diplomatically refers to as "conflicting") changed the DEA's narrative. It continued to insist police were shot at by passengers on the boat and that it had no involvement in the hail of gunfire that left four dead and four injured. Only when local law enforcement backed up the civilians' stories did the DEA slightly alter its version of the facts.

DEA changed its mind after a local Honduran police report asserted four people were killed (including two pregnant women) and four others were injured after a helicopter with DEA personnel confused cargo in a passenger boat for bales of drugs and opened fire.

It was all a big misunderstanding. Which left innocent people dead. The mere existence of drugs shouldn't be a reason to open fire on other humans. I mean, Honduras isn't the Philippines. And the DEA should be on hand to prevent this sort of thing from happening, not telling door gunmen how much to lead civilian targets in a moving boat.

The DEA's continued lies led to even more obfuscation.

U.S. Ambassador to Honduras Lisa Kubiske authorized State’s Diplomatic Security (DS) to investigate the three incidents after she became frustrated by her inability to obtain information from DEA and concerned the Honduran investigation would not satisfy those interested in the May 11 incident. DEA refused to share information with DS or provide access to relevant personnel.

The DEA then claimed it had already investigated itself and found nothing that said one way or the other that firing on unarmed civilians was against the Drug War rules. But as the OIG points out, the DEA's definition of "investigation" meant handing over a stack of forms to someone unwilling and uninterested in performing an internal investigation.

DOJ OIG found that the resulting investigation was little more than a paper exercise. DEA assigned the matter to a FAST Supervisor who did not conduct any interviews and merely collected written statements from FAST agents – statements we found in a few instances were improperly prepared or omitted material facts, such as the direction given by a FAST member to the Honduran door gunner to fire his machine gun at the passenger boat. The FAST Supervisor did not determine whether weapons checks, as required by DEA procedures, were conducted after the shooting (they were not). He also did not seek to interview or obtain witness statements and reports from FAST’s U.S. and Honduran partners who participated in the operation. We also did not find evidence that he gave any consideration to the accounts of survivors from the passenger boat or local residents of the village.

It then took these alternative facts to its Congressional overseers, hoping to head off any additional scrutiny.

DOJ OIG found that DEA’s misplaced confidence in its assumptions of the events that took place on May 11, and its failure to conduct a thorough post-incident investigation, resulted in DEA making several factual representations to DOJ leadership and to Congress that were inaccurate, incomplete, or based upon unreliable and insufficient information. This included representations regarding the central premises of DEA’s narrative regarding the May 11 incident, namely that individuals in the passenger boat had fired first and Honduran officers returned fire, and that no DEA agents discharged their weapons.

The evidence presented by the DEA to Congress did not include recordings that called into question its depiction of a gunfight (rather than the one-sided bullet hell it actually was). Instead, its narrative before Congress utilized a highly-questionable "Sources of Information" (SOIs).

As we describe in Chapter Five, SOI #2 provided inconsistent accounts of the May 11 incident to DEA over the course of three interviews and admitted to lying to DEA during his/her first interview. Yet, DEA failed to adequately question SOI #2 about his/her multiple versions of events or confront him/her with the inconsistencies between his/her various stories and the May 11 video footage. Further, even after SOI #2 admitted to lying to DEA and providing conflicting accounts, we found no evidence that DEA officials clarified or modified their prior representations to DOJ leadership and Congress.

The tales that began in Honduras grew larger in the telling. With the DEA controlling the investigation and the evidence, Congress heard a story that bore almost no resemblance to the actual incident.

[D]EA officials described information favorable to DEA’s positions while omitting unfavorable information, such as video evidence of TRT officers shooting at people who had fallen or jumped into the water, the inconsistent TRT reporting and TRT gun-planting incident, and the results of a preliminary report from the Honduran National Police that made findings critical of law enforcement actions on May 11. DEA officials also did not disclose the existence or results of the video enhancement and analysis by the DS video analyst who found no evidence indicative of gunfire from the passenger boat. Moreover, DEA continued to inaccurately and incompletely characterize its role in Operation Anvil as being supportive and advisory only.

With one level of oversight thwarted, the DEA started fending off the Inspector General's office.

DEA failed to timely produce numerous responsive e-mails of certain senior DEA officials connected to Operation Anvil, without justification. While DEA promptly produced responsive e-mails of non-Senior Executive Service (SES) employees, it initially refused to produce to the DOJ OIG responsive e-mails of SES employees despite the fact that the OIG was entitled to access the material pursuant to the Inspector General Act. Only after lengthy discussions over a 4- month period were some of those e-mails of SES employees finally produced to the OIG. Others were not produced until as much as 11 months after we asked for them.

Second, while DEA produced a large number of documents in response to our requests, it omitted certain highly relevant reports and statements related to the specific issues of our review. For example, none of the eight document productions provided us with the initial witness statement of the only percipient DEA witness in the boat during the May 11 drug interdiction that resulted in the deaths of four individuals, even though this statement was clearly within the scope of our requests.

This is how we fight the Drug War. With lies and cover-ups and press releases touting the number of kilograms seized while making no mention of the collateral damage. And this is why Congressional oversight is mostly useless. It can't compel the DEA to tell the truth. All it can do is wait for the truth to come out, which is years after the fact and often the result of other entities: whistleblowers, Inspector General investigations, FOIA requesters, etc. As long as the fight is viewed as a "good" one, agency sins will be forgiven and politicians will continue to believe internal policy changes are anywhere near as substantial as internal culture changes.

Filed Under: coverup, dea, drug war, fast, honduras, inspector general, murder

Inspector General's Report Shows Section 702 Isn't The Only Thing Being Abused By The NSA

from the does-the-NSA-even-understand-the-concept-of-'internal-controls?' dept

There's more than Section 702 up for renewal at the end of this year. Most of the attention has been focused on Section 702 because it's used most frequently for internet communications and data collections. Not only does the NSA make use of this collection, but other agencies (FBI, CIA) are allowed unminimized access to NSA 702 data stores. With this many agencies reliant on NSA communications interception, the sales pitches have been focusing on this particular authority.

But there are other surveillance authorities under Title VII: Sections 704 and 705, which allow the NSA to target US persons located outside of the country. The numbers put up by these sections aren't as impressive as Section 702's (~3,000 selectors for 151 million records), but 704/705 isn't supposed to result in incidental collection. It's a US spy agency actively spying on US citizens.

According to Marcy Wheeler, these collections only target about 80 people. But protections for US citizens aren't supposed to evaporate just because they've travelled out of the country. Agencies seeking to use these authorities must obtain a FISA court order to collect communications and data. Section 704 covers new requests for collections and Section 705 allows for "streamlined" requests/renewals for orders covering US persons already targeted by the agency.

The NSA may be compliant in terms of obtaining court orders, but the 2016 Inspector General's report [PDF] released last week shows the agency has done almost nothing to prevent abuse of its collections.

At the time of our review, the Agency could not reliably identify queries performed using selectors associated with FAA 704 and 705(b) targets because the SIGINT databases did not uniformly send records in the correct format to [REDACTED] (NSA's SIGINT auditing and logging system).

[...]

We identified [REDACTED] queries that were not compliant with the FAA 704 and 705(b) targeting and minimization procedures. [LONG REDACTION] We identified another [REDACTED] queries that were performed outside the targeting authorization periods in E.O. 12333 data, which is prohibited by the E.O. 12333 minimization procedures. We also identified [REDACTED] queries performed using USP slectors in FAA 702 upstream data, which is prohibited by the FAA 702 minimization procedures.

According to the NSA, the problem is its own software. These collections are obtained beforehand. The FISA orders only limit what analysts can search for in the collected data. Everything apparently funnels into one big pile, and it's up to analysts to search according to the controlling statute (702, 704, 705, or Executive Order 12333). The problem is the NSA's system immediately gives access to "all authorities to which analysts are entitled access." Someone who's supposed to be performing a more limited search under 704 may not take steps to remove 702 collections from the queried data or add the limiters needed to ensure proper minimization of US persons' communications.

That's already a terrible way to handle the querying of NSA collections. The default is everything, and affirmative, unprompted steps must be taken by analysts to ensure their queries are lawful. Making it worse is the issue the IG first mentioned: the NSA has no system for tracking possibly-prohibited searches.

Then there's this wrinkle in the statutory authorities the NSA seems unable to comply with: the NSA cannot engage in domestic surveillance so its targeting of US persons overseas must end when the US person arrives back on US soil. Possible violations of this nature were, again, not being tracked by the NSA.

FAA 704 and 705(b) targeting and minimization procedures prohibit targeting USPs while they are in the United States. Although the Agency is not required to document [REDACTED], maintaining these records is important for securing compliance with the targeting and minimization procedures.

The upshot of this report is that the NSA has probably engaged in wholly domestic surveillance thanks to lax recordkeeping and its all-access internet communications haystack. Having to get permission from the FISA court to search collected records is an important step, but it's completely meaningless when analysts are given full access to data stores under multiple authorities and expected to "opt out" of potentially unlawful searches.

As Marcy Wheeler points out in her post about 704/705 violations, the NSA is a "dumpster fire of noncompliance." She points to a just-released opinion by FISC judge Rosemary Collyer, in which the judge notes the NSA's new 704/705 search tool (put in place in 2012) resulted in far more violations than approved searches.

NSA examined all queries using identifiers for “U.S. persons targeted pursuant to Sections 704 and 705(b) of FISA using the tool [redacted] in [redacted] . . . from November 1, 2015 to May 1, 2016.” Id. at 2-3 (footnote omitted). Based on that examination, “NSA estimates that approximately eighty-five percent of those queries, representing [redacted] queries conducted by approximately [redacted] targeted offices, were not compliant with the applicable minimization procedures.” Id. at 3. Many of these non-compliant queries involved use of the same identifiers over different date ranges. Id. Even so, a non-compliance rate of 85% raises substantial questions about the propriety of using of [redacted] to query FISA data. While the government reports that it is unable to provide a reliable estimate of the number of non-compliant queries since 2012, id., there is no apparent reason to believe the November 2015-April 2016 period coincided with an unusually high error rate.

In other words, the tool was broken from the moment it was introduced and very likely resulted in four out of every five searches being noncompliant over that four-year period. This is the sort of thing that will be glossed over during the run up to renewal, with the NSA touting its multiple layers of oversight and rigorous self-reporting as reasons it should be given extended permission to engage in future noncompliance.

Filed Under: inspector general, nsa, section 702, surveillance