House Votes For USA Freedom Act By Overwhelming Margin; Now Up To The Senate

from the baby-steps dept

Showing that Congress realizes that at least something needs to be done to reform the surveillance state, the House voted overwhelmingly for the USA Freedom Act today, 338 to 88 (a significantly higher margin than when they approved last year's -- much weaker -- bill). Now, the big question is what will the Senate do? It can try to push forward with Mitch McConnell's preferred plan of just re-upping Section 215 for another few years with no changes and no restrictions. It can pass basically the same USA Freedom Act. Or, it can pass an even stronger surveillance reform bill. Chances are that it will pass the same bill that the House just passed -- but many are pushing for a stronger bill.

Senator Ron Wyden has said that he's looking to strengthen the Senate version, in particular trying to end backdoor searches under Section 702 of the FISA Amendments Act:

“I am working with Senate colleagues to pass additional reforms, particularly ending the warrantless backdoor searches of Americans' personal electronic communications under Section 702 of the Foreign Intelligence Surveillance Act. And I have made it clear I will fight any effort to extend mass surveillance of Americans’ records through a straight renewal of the Patriot Act – even a short-term one.

“Supporters of dragnet surveillance are fighting to preserve the status quo, but the American public is rightfully demanding a change. It is time for mass surveillance to end, and I will filibuster any attempt to extend this illegal surveillance, which violates core American rights without making our country any safer.

Meanwhile, Rep. Zoe Lofgren expressed similar concerns in the floor debate before the passage of the bill, noting that it could have been better. She voted for it, but hoped that her colleagues in the Senate would fix things like the backdoor loophole. As she noted, it's an important step forward, but it did not go far enough:

"The USA FREEDOM Act makes meaningful reforms to a few of our nation's surveillance programs. I applaud the bill's authors who worked to make sure these improvements were included.

"But this bill does not end all of the warrantless bulk collection of US persons' communications and data. While the legislation does not create these privacy violations, it fails to address widely reported privacy violations that occur under Section 702 of the FISA Amendments Act and Executive Order 12333.

"The House voted last year to close these backdoor forms of warrantless bulk surveillance by an overwhelming margin of 293-123. Reformers were blocked by Leadership and the Rules Committee from considering those much needed improvements to this bill today.

"Continuing these backdoor surveillance programs is wrong, detrimental to our economy, our competitiveness abroad, and the public's trust. It's time to end these serious privacy violations so that our government adheres to the constitution and protects electronic privacy.

"This bill is an improvement over the status quo. During Committee consideration the Judiciary Chairman and others assured reformers that once this bill passed we will quickly address backdoor surveillance loopholes under Section 702 and Executive Order 12333. If these commitments are not kept, reformers will reconsider their support for this legislation when it returns to the House from the Senate."

Again, this bill is a step forward, and the very fact that this debate is happening at all is a sign of how much impact the Snowden leaks have legitimately had on this debate. But, as most people recognize, there is still much to be done -- and the first part of that should happen over the next week in the Senate.

Filed Under: backdoor searches, bulk collection, congress, ed snowden, mass surveillance, nsa, ron wyden, section 215, section 702, senate, usa freedom act, zoe lofgren

Senate Rejects Fast Track Bill For TPP Agreement: Back To The Drawing Board

from the good-to-see dept

In a somewhat significant procedural move, the Senate failed to move forward on debating "fast track authority" or "trade promotion authority" after the Senate failed to come up with enough votes. The move to hold a debate on the fast track bill needed 60 votes, but only got 52 (with 45 against). Perhaps somewhat surprisingly, Senator Ron Wyden -- who had sponsored the fast track bill -- went against it as well, noting that he (and others) needed more promises on other issues before they'd move forward:

Democrats that are supportive of Obama’s trade efforts huddled on Tuesday afternoon to plot their strategy. After nearly an hour, led by Senate Finance Committee ranking member Ron Wyden (D-Ore.), the bloc of about 10 Democrats said McConnell has not offered them sufficient guarantees.

“The group is concerned about the lack of commitment to trade enforcement, which is specifically the customs bill,” Wyden told reporters after the meeting. “Until there is a path to get all four bills passed … we will, certainly most of us, will have to vote no.”

And thus, we have this weird situation, again, where it's basically Republicans pushing for giving up the Senate's Constitutional authority on trade agreements, and handing it to a Democratic President. Either way, today's vote came down to a bit of horse trading:

Democrats want McConnell to package the so-called fast-track Trade Promotion Authority legislation with three other pieces of legislation, including one that would help workers affected by the massive trade agreement and one to crack down on currency manipulation.

But McConnell is refusing to guarantee that TPA, Trade Adjustment Assistance, the African Growth and Opportunity Act and a customs enforcement bill, which includes the currency manipulation provisions, will all be passed as part of a deal to open debate on the trade bill.

The customs provision in particular is viewed as veto-bait for the White House, potentially complicating the trade package’s future if it is approved. The measure could force the administration to designate China as a currency manipulator, which the White House fears would spark a trade war with Beijing.

What happens next, should be interesting. There will likely be a lot more negotiating and some more horse trading, but it seems that Senator Orrin Hatch, who has been the driving force behind the fast track bill, is pretty angry with Wyden for the situation today:

Hatch, though, sounded pessimistic about another round of deal-making with Wyden. A visibility agitated Hatch told reporters that the bill had become a “mess,” adding that he was “through talking.”

“I’ll always be open, but we’ve just been jerked around here too much,” Hatch said. “I expect people to live their word just like I do.”

It still has a chance of things moving forward, but for the moment, the big push to get fast track through in order to allow the TPP agreement to be completed has had to hit the brakes.

Filed Under: fast track, orrin hatch, ron wyden, senate, tpa, tpp

The Exposure Of CIA Torture Is Finally Costing Someone A Job: Former Senate Staffer Alissa Starzak

from the halls-of-power-still-clogged-with-assholes,-apparently dept

Oh, good. As if there was ever any doubt that the exposure of CIA torture was never going to result in anyone involved being held responsible, the current push to knock a former Senate staffer off her career path further confirms the government's preference for shooting messengers.

Alissa Starzak, a former Democratic majority staffer on the Senate Intelligence Committee, played a critical and controversial role during her time on the panel: She was a lead investigator for the torture report, and was one of two staffers involved in an ongoing feud over damning internal CIA documents obtained by the committee.

Currently serving as deputy general counsel for the Defense Department, Starzak was nominated last July to serve as general counsel to the Army.

But the critics of the torture investigation -- namely, Senate Intelligence Committee Chair Richard Burr (R-N.C.) -- are orchestrating a quiet campaign to stall Starzak's nomination.

Burr confirmed to The Huffington Post that he is working to keep the former investigator from getting approved by the Senate.

This would be the same Richard Burr who ridiculously demanded everyone in possession of the full, unredacted CIA Torture Report return their copies immediately, presumably so he could memory-hole the damning documents as quickly as possible.

So, while everyone else involved walks away with their careers pretty much intact -- and covered by the president's mawkishly-worded admission that "we tortured some folks" -- Starzak will be about the only person to emerge from this horrific debacle with her options limited.

The Senate Intelligence Committee is divided against itself. Feinstein tackled the CIA's torture programs, facing down fellow committee members while doing so. Since Burr can't hang Feinstein -- largely because she's still a very hawkish on NSA surveillance -- he's just going to fit Starzak with a noose and hang Feinstein in effigy.

Starzak wasn't involved with the torture review for long, leaving Feinstein's staff for a job with the Department of Defense in 2011, but she managed to secure a key document that served as a touchstone for future Senate investigative work. While digging through the documents the CIA allowed the Senate to access on its computers in the agency's basement, she came across the files later known as the "Panetta Review." At the time (2010), they seemed unimportant. It wasn't until the CIA began defending itself against claims made in review drafts that Senate staffers realized how instrumental this file was.

It was in June 2013 that the CIA, now under the leadership of John Brennan, sent the committee its official response to the completed torture study. The agency largely defended its use of torture -- in stark contrast with what the Panetta Review said -- which tipped Senate staffers off to the document’s importance.

After the CIA issued its response, Senate investigators sat through dozens of hours of meetings with agency staff in an effort to resolve the discrepancies between the official CIA line and the Senate’s findings. But those meetings yielded little. Newly aware of the relevance of the Panetta Review -- as it backed their findings and undermined the agency’s official response -- staffers slipped the document back to their secure committee spaces sometime in late 2013.

This move led to CIA claims that the Senate had improperly accessed documents… which led to the Senate accusing the CIA of spying on staffers. This finally resulted in CIA opening its own investigation into the Senate allegations and (of course) clearing itself of any wrongdoing, while raising new accusations about Senate staffers' improper access.

So, while CIA, DOJ and administration officials are free to duck questions about their involvement in the approval (either explicit or tacit) of the CIA's torture programs, Burr and others are holding Starzak's future hostage until she answers for this supposed improper behavior.

Critics are now holding up Starzak’s nomination -- and say they are willing to kill it entirely if need be -- to get more answers about the Panetta Review. Specifically, they say, they want the committee’s Democratic staffers to provide more information about how the file was discovered in 2010 and how, in late 2013, staffers slipped the printed documents back to the committee’s secure office spaces, in apparent violation of an agreement with the agency.

“Clearly it looks like … [she] knew that this document existed, knew that people were reading it and as a counsel didn’t try to keep people from doing it,” the lawmaker familiar with the controversy said. “[I want] information that fills in the blanks of what happened. And she clearly knows something.”

It's nothing but thug tactics, wrapped in the faux concern for an intelligence agency's operational security. Burr is irritated that Senate staffers didn't play by the CIA's self-serving ruleset -- not because rules mean much to him, but because it resulted in the exposure of truly vile behavior from officials and operatives Burr routinely defends. And he's willing to let the record show that he prefers punishing those who expose torture to punishing the torturers themselves.

Filed Under: alissa starzak, cia, cia torture, dianne feinstein, panetta review, richard burr, senate, senate intelligence committee, torture report

Senate Intelligence Committee Finally Decides That Maybe It Should Figure Out What The Intelligence Community Is Up To

from the seems-a-bit-late-for-that dept

Both houses of Congress set up their respective "Select Committees on Intelligence" in the mid-1970s as basically permanent extensions of the Church and Pike Committees that dug into widespread abuses of the US intelligence community in the preceding decades. The idea was that by creating permanent oversight committees, it would prevent the kinds of abuses that were commonly done by the FBI, NSA and CIA. And yet, as we've noted many times, the intelligence committees don't seem to function as an oversight committee these days. Rather, they seem to be the committee designed to whitewash any abuses and to help the intelligence communities give a false veneer of legitimacy to their widespread abuses.

Just to put an exclamation point on the lack of real oversight, the Associated Press is now reporting that, in the wake of the Snowden revelations, then Senate Intelligence Committee boss (now "ranking member"), Dianne Feinstein, asked the committee to create a "secret encyclopedia" of all the various intelligence programs, because members and staffers apparently hadn't been keeping track:

Trying to get a handle on hundreds of sensitive, closely held surveillance programs, a Senate committee is compiling a secret encyclopedia of American intelligence collection. It’s part of an effort to improve congressional oversight of the government’s sprawling global spying effort.

Sen. Dianne Feinstein launched the review in October 2013, after a leak by former National Security Agency systems administrator Edward Snowden disclosed that the NSA had been eavesdropping on German Chancellor Angela Merkel’s cellphone. Four months earlier, Snowden had revealed the existence of other programs that vacuumed up Americans’ and foreigners’ phone call records and electronic communications.

“We’re trying right now to look at every intelligence program,” Feinstein told the Associated Press. “There are hundreds of programs we have found ... sprinkled all over. Many people in the departments don’t even know (they) are going on.”

Later in the article, Feinstein admits that the committee had not been "satisfactorily informed" about certain surveillance programs.

In other words, the committee clearly hasn't been doing much "oversight." Part of the problem is that so much of the work done by the intelligence community actually falls under executive order 12333. That's the executive order issued by Reagan under which most of the key intelligence programs fall -- and which Congress technically has no oversight mandate.

If the program started back in 2013, why is it only coming out now? Well, because with the changing of the guard in the latest Congress, Senator Richard Burr took over the Senate Intelligence Committee leadership, and he's even more of an intelligence community defender than Feinstein ever was. In the past, he's even argued that there should be no public hearings by the committee, and he's basically fought against any effort for transparency, and always sides with the intelligence community. Given that, many expected him to just kill off Feinstein's attempt at cataloging these programs -- but apparently Burr and Feinstein worked out "a deal" to continue -- but it appears that the "deal" also involves ending this effort by September, and no longer using two staffers from the executive branch who were familiar with these programs:

Feinstein, a California Democrat, initially wasn’t sure that Sen. Richard Burr of North Carolina, who took her place as chairman of the panel when Republicans took control of the Senate in January, would agree to continue the review. But Burr and Feinstein recently reached an agreement to do so, said Senate aides. They were not authorized to discuss the inner committee workings publicly and spoke only on condition of anonymity.

Two executive branch officials who had been detailed to the committee are returning to the executive branch and will not be replaced, the aides said, so the effort will be entirely the work of congressional staff. The project will end in September, the aides said.

Of course, for the past few years, Feinstein had insisted that the Committee was fully informed -- and only now it's coming out that she admits they weren't really. Except, now the committee is controlled by someone who is even more in the bag for the intelligence community than she was. Does anyone honestly think that the intelligence committees will now suddenly start doing a better job keeping the rest of Congress informed about what the intelligence community is up to?

Filed Under: dianne feinstein, executive order 12333, oversight, richard burr, senate, senate intelligence committee, surveillance

CIA Wanted To Throw The CFAA At Senate Staffers For Unauthorized Googling

from the stop-accessing-documents-we-couldn't-be-bothered-to-properly-secure! dept

Marcy Wheeler has picked up on an interesting claim made in the CIA's "We Did Nothing Wrong" report. This report -- an in-house investigation of the CIA's snooping on/hacking Senate staffers during the compilation of the Torture Report -- tossed out the Inspector General's findings and cleared the agency of any misconduct. It then went on to disingenuously claim that it was the Senate, not the CIA, that broke the rules.

According to the CIA's investigators, Senate staffers accessed documents they weren't supposed to see, apparently by "abusing" the shared network set up explicitly for the Torture Report compilation. What Wheeler spotted -- in a very thorough fisking of the CIA investigative report by Katherine Hawkins of Just Security -- is the attempted criminalization of Google searches.

As Hawkins summarizes, the crime report was based off a flaw in the Google search that CIA’s own contractor had built into the system.

"On February 7, 2014, the CIA’s Acting General Counsel Robert Eatinger (whose name is redacted from the OIG report) filed a crimes report against Senate staff with the Department of Justice. The OIG report found that the crimes report “was unfounded,” in part because Eatinger “had been provided inaccurate information on which the letter was based.” In particular, the OIG wrote:

[T]he crimes report stated that SSCI staffers might have exploited a software vulnerability on RDINet to obtain access to the [Panetta Review documents], in violation of the Computer Fraud and Abuse Act … The report was solely based on inaccurate information provided by the two [Office of the General Counsel] attorneys [to the Office of Security].

The OIG report found that there was indeed “a vulnerability” with the Google search tool that the CIA provided to the committee, which was “not configured to enforce access rights or search permissions within RDINet and its holdings” from 2009 to April 2013. But contrary to the CIA lawyer’s memorandum and the crimes report to DOJ, OIG found no evidence that Senate staff had deliberately “exploited” this flaw until CIA personnel “confronted them” with inappropriately accessed documents. Rather, it was SSCI staff who brought the vulnerability to the CIA’s attention. On November 1, 2012, a SSCI staff member alerted CIA staff that the search tool “was indexing the Majority staff work product on a shared drive,” and asked them to make it stop. The CIA did not act on this request for months. Then in 2013, a SSCI staff member requested “a number of detainee videos not provided to the SSCI by the CIA,” based on a spreadsheet that a CIA employee recognized as being from the Panetta Review. After this incident, in April 2013, CIA IT staff finally discovered and repaired the flaw with the Google search tool."

So, the CIA deployed an insecure system, was warned about it, but never bothered to do anything about it until it came across documents the Senate supposedly wasn't allowed to have.

As Hawkins points out in her Just Security post, the ongoing accusation that the Senate "hacked" the CIA's servers is pure BS. None other than Senator Feinstein addressed this bogus claim on the Senate floor in March of 2014:

[C]ommittee staff did not “hack” into CIA computers to obtain these documents as has been suggested in the press. The documents were identified using the search tool provided by the CIA to search the documents provided to the committee.

It was no hack, but the CIA attempted to hurl a Senate staffer into the jaws of the CFAA -- a law that magically turns those who discover security flaws into felons. In its February 2014 letter to Eric Holder, the CIA's counsel describes the alleged hacking as nefarious exploitation of its (admittedly insecure) search function.

The information made available to me indicates that in the November 2010 timeframe, the non-employee conducted a search that appeared intended to reach into part of the computer system to which the non-employee did not have authorized access. In such a circumstance, the system was designed to bring up on the workstation screen a page that advised the non-employee was not authorized to access that document. This page, however, had the security vulnerability that has since been discovered and remedied. The security vulnerability was that the page also contained a "URL" that indicated where the document was located on the system and if an individual copied the URL and pasted it into the browser's address bar, the individual could gain access to the document, copy it, bring that copy across the firewall, and paste it into a folder on his or her side of the firewall. The information made available to me indicates the non-employee copied the URL, pasted it directly into the browser's bar, and accessed the document.

That's incredibly poor security for a bunch of documents the CIA clearly didn't want the Senate to access. And it wasn't cheap, either. This custom Google search and server set-up was apparently a large portion of the $40 million spent to compile the Torture Report. And let's not forget that this vulnerability was undiscovered for over two years and not immediately patched when it eventually was discovered.

A staffer finding a flaw in a system isn't hacking, no matter how much the CIA wants it to be. But the CFAA allows the government to use the law's most charitable readings when prosecuting "hackers." The CIA finds wrongdoing everywhere but never in its own backyard. Its management, employees and contractors who presided over its illegal torture program will not be held accountable for their actions. But the CIA wanted the Senate to be held accountable for… holding the CIA accountable.

Hawkins again:

I know some of the staffers who wrote the torture report, including the probable subject of the crimes report to the DOJ. They do not leak and have never been credibly been accused of leaking. They do not confirm or deny information that is officially classified, no matter how obvious it is or how many years it has been in the public domain. They scrupulously continue to follow the classification restrictions that the CIA and the committee placed on them, no matter how absurd those restrictions are or how severe the crimes they conceal.

Nevertheless, the CIA searched their computer drives and their emails, and referred them to the DOJ for prosecution. Why? Because, in the course of an official Senate investigation into the torture program, they used a CIA-installed Google search tool to find CIA documents about the torture program. They read the documents, despite the fact that they contained a questionable stamp of “privilege,” and preserved them when they thought they were in danger of destruction. The staffers’ actions were not crimes or a security breach justifying a search of Senate computers. Their actions were oversight of an agency in sore need of it.

The CIA is a rogue agency, much like its counterparts, the FBI and NSA. It may be publicly embarrassed or wince at the criticism and condemnation thrown its way, but it ultimately answers to no one -- not even after its worst behavior has been exposed. It walks away from a damning report pretty much intact and has the gall to suggest Senate staffers be punished for walking in and out of its firesieve with damaging documents in their hands.

Filed Under: cfaa, cia, doj, misconfigured tool, searching, senate, senate intelligence committee, torture report

Turns Out New Senate Intelligence Boss Was Simply Full Of It In Claiming Feinstein Couldn't Distribute The CIA Torture Report

from the off-to-a-great-start dept

The new head of the Senate Intelligence Committee, Senator Richard Burr, has long been known as a staunch defender of anything the CIA/NSA decide to do. That's why we still find it odd that he's now in charge of overseeing them, a job that was created to try to prevent their abuses. In the past, Burr has even argued that all hearings by the committee should be held in secret, to prevent any information from ever getting out. So, perhaps it wasn't that surprising when he kicked off his new role by claiming that his predecessor, Senator Dianne Feinstein, had somehow broken all sorts of protocol in actually distributing copies of the committee's 6000+ page report on the CIA's torture program and how the CIA lied to Congress about it. Burr was demanding all the copies back, while supposedly acting furious that it had been distributed. He claimed that it "was not a valid disclosure" and that it was done without approval.

As part of that complaint, he went to the Senate Parliamentarian (basically the referee who makes the calls on all the arcane and sometimes ridiculous rules of the Senate), asking for a determination that Feinstein had violated the rules in distributing the report. Instead, he got the opposite. The Parliamentarian has noted that Feinstein did nothing wrong in distributing the report.

The Senate Parliamentarian has vindicated former Senate Intelligence Committee chair Dianne Feinstein against charges that the California Democrat violated committee rules by sending the full, classified version of her panel’s torture report out to the executive branch.

“There’s nothing there. They’re taking no action,” Feinstein told HuffPost Tuesday.

Apparently, Burr isn't giving up, but in typical Burr fashion, he says he's going to keep what he does next a secret:

“We’ll proceed to whatever the next step is gonna be,” Burr said Tuesday. “I think there will be a next step, but it probably won’t be a public one.”

That's not particularly comforting.

Filed Under: cia, cia torture report, dianne feinstein, richard burr, senate, senate intelligence committee

Will Senator Burr's Attempt To Bury CIA Torture Report Actually Make It More Likely The Report Leaks?

from the action,-reaction dept

We already wrote about how Senator Richard Burr has demanded that the White House return all copies of the full, unredacted CIA Torture Report, which Senator Dianne Feinstein distributed to various department heads last month. As we noted in our article, this seemed like an effort to stuff the full report down the memory hole to make sure that no one could ever do anything with it at all and to make it more difficult to access in a series of FOIA lawsuits. Those lawsuits are demanding the report, as well as the internal Panetta Review that is supposedly the smoking gun, involving an internal CIA analysis that mostly agrees with the Senate Intelligence Committee's analysis in the full report.

Reporter Jason Leopold of Vice News (and one of the people suing the government, under FOIA, for the documents) has some more details about Burr's action, including a copies of the letter [pdf] Burr sent the White House, and the letter that Feinstein sent in reply. As Leopold notes, Burr's decision seems specifically designed to try to do a legal two-step to make the document immune from FOIA lawsuits:

By advising the White House to cease entering the full torture report into an executive branch system of records, Burr is saying that the document is a "congressional record," which is exempt from FOIA, as opposed to an "agency record," which is subject to the provisions of the law.

Feinstein's response shows that she disagrees, and that the report can properly be handed over to the Executive Branch. The reason for the letter, obviously, is for it to be used in killing off the FOIA attempts, and the DOJ wasted no time in making just that argument:

Tonight, the government filed a response in our long-running lawsuit and asked a judge to dismiss our case. A CIA lawyer said in a 31-page declaration that the redactions in the executive summary were justified and the Panetta Review is properly classified and should not be released. The government also responded to the ACLU's FOIA lawsuit for the full torture report. The government said the full torture report is not an agency record subject to FOIA, it is a congressional record. The government cited Burr's letter to support its case.

You can see that filing here [pdf], with this being the relevant portion:

Congress retains control over the Full Report for at least five reasons. First, the conditions under which the report was created reflect that SSCI as a whole asserted complete control over not only drafts, but also the final product. Second, throughout the years-long process of creating and finalizing the Report, both SSCI and the CIA handled the Report in accordance with SSCI’s instructions and strict limitations on access. Third, SSCI voted, in accordance with Senate Rules, to seek declassification and release only of the Executive Summary, Findings and Conclusions – not the Full Report. The then-SSCI Chairman’s decision to provide the Full Report to certain Executive Branch agencies for nonpublic use does not amount to a Committee decision to seek to declassify and release the Full Report. Fourth, the current Chairman of SSCI has reiterated SSCI’s intent to retain control of the Full Report. Finally, the defendant agencies have treated the Full Report, received in December 2014, as a congressional record, sequestering it in secure storage space appropriate to its classification and carefully limiting its dissemination and use. Because the Full Report remains a congressional record as opposed to an agency record, this Court lacks jurisdiction over plaintiffs’ FOIA claim seeking its release, and plaintiffs’ claim should be dismissed under Rule 12(h)(3) or 12(b)(1).2

This is not all that unexpected, even if it's fairly ridiculous. However, it's possible that the whole thing could backfire badly. Feinstein knew what she was doing in distributing the report to a number of people within the administration. While all of whom have access to it have the proper clearance, at least some have to agree that this report is an important historical document, detailing incredible misdeeds by the CIA -- and some of them may view it as important to have that information shared with the public to make sure such events never happen again.

Senator Burr's rather obvious move here to demand all copies be "returned" is seen by many as an attempt to bury the report entirely. As Senator Ron Wyden points out, returning the report would "aid defenders of torture who are seeking to cover up the facts and rewrite the historical record." Given that, it seems more likely that at least someone with access to the document is going to realize that this important review of history is at risk of being shredded. Hopefully there is someone in the government with the courage to stand up and get a copy out to reporters in some manner or another, before Burr has a chance to succeed in wiping it off the face of the earth.

Filed Under: cia, cia torture report, congress, dianne feinstein, doj, foia, jason leopold, leaks, richard burr, senate, senate intelligence committee, whistleblowing

Senator Wyden Responds To CIA Defenders Distorting The Truth About CIA Torture

from the setting-the-record-straight dept

Last week, Senator Ron Wyden picked apart a Wall Street Journal "op ed" by former CIA directors, attacking the Senate Intelligence Committee's report on the CIA's torture program. However, with more CIA defenders coming out of the woodwork, he's done so again. He's written the following for Techdirt in response to a misleading op-ed published by former CIA acting director and deputy director John McLaughlin that was published in the Washington Post. As you can see, the Senator finds that if there are distortions being made, it is from these former CIA officials.

With the release of the Senate Select Intelligence Committee's report on the CIA's use of torture, many former CIA officials have rushed to defend themselves and their actions. Unfortunately, many of these responses mischaracterize the report's contents and continue to repeat inaccurate information about the results of torture and the CIA’s years of misrepresentations. Hopefully these responses, including specific citations, to former CIA official John McLaughlin will help set the record straight.

The most incredible and false claim in the Senate intelligence committee’s report on the CIA interrogation program is that the program was neither necessary nor effective in the agency’s post-9/11 pursuit of al-Qaeda.

Actually, the Committee's report does not include conclusions about the effectiveness of "the CIA interrogation program" -- its conclusions address the CIA's use of torture. The Committee's report identifies numerous instances in which detainees who had not been tortured (or not yet been tortured) provided useful information.

The report, written by the committee's Democratic majority and disputed by the Republican minority and the CIA, uses information selectively and distorts facts to “prove” its point.

The Committee's report was approved on a bipartisan vote of 9-6, and the Committee elected to release it on a bipartisan vote of 11-3, along with additional and minority views. When the report was publicly released on December 9, 2014, Senators from both parties, including Sen. John McCain (R-AZ) spoke in favor of it on the Senate floor.

Furthermore, the Committee’s report is comprehensive, not selective. The public version of the Committee’s report is 499 pages and includes 2,725 footnotes. The full, classified version is over 6,700 pages, with approximately 38,000 footnotes, which appears to make it the largest Senate report in history.

Finally, the facts laid out in the Committee's report come almost entirely from the CIA's own internal records. And they show that the CIA repeatedly provided inaccurate information to the White House, the Justice Department, Congress and the public. Chairman Feinstein also noted in her March 2014 Senate floor statement that the CIA's own internal "Panetta Review" came to many of the same conclusions as the Committee's investigation. The Panetta Review currently remains classified.

I won’t try to convince you that the program was the right thing to do — reasonable people will differ. Nor will I discuss the management of the program, other than to say that the record clearly shows the agency went to extraordinary lengths to assure it was both legal and approved — and the CIA halted the program when uncertain.

The CIA received legal and policy approvals for coercive interrogations after it provided extensive inaccurate information to the Justice Department, the White House and Congress about their use and effectiveness.

The Committee's report documents this inaccurate information in detail. For example, on pp. 217-225, the report describes the CIA's inaccurate claim that coercive interrogations led to the discovery of particular terrorist plots, and on pp. 49-50, 59, and 69, the report describes the CIA's inaccurate claims about the training and qualifications of CIA interrogators.

The Democratic staffers who drafted the report assert the program contributed nothing important, apparently to bolster a bogus claim that the CIA lied.

The Committee’s report does not assert that CIA interrogations contributed "nothing important." The report evaluates the CIA's repeated claims that its coercive interrogations provided critical "otherwise unavailable" information, and finds that the CIA's own internal records do not support this claim. In all twenty cases that the Committee examined, the CIA had access to the information from more traditional intelligence sources, and later attributed it to the use of coercive interrogations.

The man who led the United States to bin Laden, a courier known as Abu Ahmed al-Kuwaiti, was mentioned by earlier sources but only as one of many associates bin Laden had years before

This is not accurate. As detailed on pp. 378-400 of the Committee's report, the CIA had substantial intelligence on Abu Ahmed al-Kuwaiti prior to any CIA detainee reporting about him. In particular, CIA records show that in August 2002 a detainee in foreign custody with known links to al-Kuwaiti reported that al-Kuwaiti was "one of a few close associates of Usama bin Laden."

The most specific information about the courier came from a detainee, Hassan Ghul, who, after interrogation, strengthened the case by telling of a specific message the courier had delivered for bin Laden to operations chief Abu Faraj al-Libi

As detailed on pp. 395-396 of the Committee's report, Hassan Ghul provided the most accurate CIA detainee reporting on bin Laden BEFORE being subjected to the CIA's coercive interrogations. During this period Ghul told CIA debriefers that al-Kuwaiti was bin Laden's "closest assistant" and listed al-Kuwaiti as one of three individuals likely to be living with bin Laden. Ghul also discussed bin Laden's likely living arrangements, and made statements about al-Kuwaiti moving messages to Abu Faraj al-Libi. Some of this information was corroborative of intelligence collected by the CIA in 2002, which was also unrelated to the CIA’s coercive interrogations.

Finally, interrogated senior operatives such as Khalid Sheik Mohammed, who by that time was enormously cooperative, lied when confronted with what we had learned about the courier

As detailed in the Committee's report, CIA records describe in detail how the CIA assessed KSM was continually uncooperative before, during, and after the use of torture. See pp. 81-96 and 210-216.

The staffers who prepared the Senate draft do not appear to understand the role in analysis of accumulating detail, corroboration and levels of confidence in making momentous decisions like the May 2011 Abbottabad operation that killed bin Laden.

As detailed throughout the Committee's report, the CIA repeatedly told the Justice Department, Congress and the White House that coercive interrogations were necessary to obtain "otherwise unavailable" information. These statements were not supported by CIA records. In all cases cited by the CIA, the CIA had either obtained the information previously from other intelligence sources, or never obtained it from the detainee in question.

If the CIA had said only that tortured detainees provided information that corroborated other sources, or that they repeated information that they had provided before being tortured, this claim would have been accurate.

Capturing 9/11 mastermind Khalid Sheik Mohammed. This led to disrupting numerous plots. But the committee says interrogation of detainees did not play a role in getting him because a CIA asset (not a terrorist detainee) helped us. This is astounding to those of us involved in capture operations. In fact, interrogated detainees were essential to connecting the source to Mohammed. The CIA will not permit me to reveal the operational details — a classic problem for intelligence officers seeking to defend against outlandish charges.

The capture of Khalid Shaykh Muhammad (KSM) is detailed on pp. 326-333 of the Committee's report. This section clearly explains how a sensitive CIA asset led the CIA directly to KSM, and how the asset's access to KSM was described in CIA records from 2001.

This section of the report is based on both contemporaneous CIA internal communications as well as after-action interviews conducted by the CIA's Oral History Project. The CIA officer who 'handled' the sensitive asset and who was directly involved in the capture of KSM described it as "a HUMINT op pretty much from start to finish." (The CIA's claims regarding the role of detainee reporting are discussed in the footnotes to this section.)

After interrogation, Khalid Sheik Mohammed told us he transferred money to Hambali via a certain individual to finance attacks in Asia. This triggered a string of captures across two continents that led us to Hambali in Southeast Asia.

The capture of Hambali is described on pp. 301-311 of the Committee's report. CIA officials repeatedly told policymakers and the Justice Department that the information about this money transfer was first provided by KSM as a result of the use of the CIA's coercive interrogation techniques. However, CIA records show that the information about the money transfer was first obtained from a detainee in foreign government custody, who was questioned using non-coercive interrogation methods. (See footnote 1721 on pp. 307-308 for the CIA's description of these methods.)

The committee says a source run by another country mentioned a plot to use airplanes to strike West Coast targets. But that's all we knew — none of the details needed to stop it.

That information came from detainees, starting with Khalid Sheik Mohammed, who told us after interrogation that Hambali would replace him in this plot.

The Committee's report discusses this plotting on pp. 246-258. CIA records actually show that this plotting was disrupted in early 2002, and that a CIA detainee in foreign government custody (who was questioned using non-coercive interrogation methods) provided detailed information about the plotting, operatives and proposed method of attack.

Of note, the President's Homeland Security Advisor stated in a February 2006 White House briefing that this plot had been disrupted in February 2002, which was over a year prior to the capture of KSM.

This drove our effort to find Hambali.

As noted on p. 302 of the Committee's report, internal CIA communications described Hambali as the CIA's "number one target" in Southeast Asia a year before the capture of KSM.

We located him and found he had recruited 17 Southeast Asians and was apparently trying to arrange flight training for them to attack the West Coast

As detailed on p. 255 of the Committee's report, the information that led to the capture of Hambali's brother came from Hambali himself, who provided his brother’s true name and location while still in foreign government custody. Furthermore, the report describes how Hambali's brother provided information about this group of Southeast Asians while in foreign government custody. A wide body of CIA records indicates that this group was not witting of or involved in the "second wave plotting." See p. 247-248 and pp. 483-484.

The committee says interrogation played no role in heading off attacks on the Pakistani hotels, where U.S. and other Western visitors stayed. But it leaves out the fact that detainee Zayn al-Abidin Muhammed Hussein, better known as Abu Zubaida, provided information on how to locate al-Qaeda “safe houses” in Karachi. One of these provided us a letter that tipped us to the plots. That is how those famous “dots” really get connected.

As detailed on pp. 239-246 of the Committee's report, the CIA's own records state that the Karachi plotting was disrupted when key captures were made by Pakistani authorities based on "unrelated criminal leads."

To drive home their points, the committee frequently cherry-picks documents. It describes officers expressing concern via e-mail that they will be “ostracized” for saying that certain detainees “did not tell us everything.” But the staff leaves out the critical context: The CIA officers were actually discussing their dismay over the agency’s decision to cease the interrogation program, causing the loss of important intelligence information.

The Committee's report provides additional context about these communications on p. 213. The interrogator who wrote "I'm ostracized whenever I suggest those two [KSM and Abu Zubaydah] did not tell us everything" also wrote in the same exchange "I think it's a dangerous message to say we could do almost the same without measures. Begs the question -- then why did you use them before?" This interrogator also told the CIA inspector general that KSM had "beat the system" and that KSM responded better to "creature comforts and a sense of importance" than to "confrontational approaches."

Many administration and congressional officials ritualistically say we will never know whether we could have gotten important information another way. This is a dodge wrapped in political correctness

The Committee's report does not conclude that the answer to this question is unknowable. The report systematically examines the top twenty examples that the CIA used to justify its use of torture. In each of these twenty cases the CIA's claims were verifiably inaccurate – in every case the information that CIA officials later attributed to coercive interrogations was actually obtained from other sources. (See pp. 172-401 of the Committee’s report.)

The point is we did succeed in getting vital information — during a national emergency when time was limited by the great urgency of a clock ticking on the next plot.

Terrorists had just killed thousands of Americans, and we felt a deep responsibility for ensuring they could not do it again.

We succeeded.

The Committee's report includes substantial information about the counterterrorism threats faced by the United States, and the successes that the CIA and other US government agencies had in uncovering and disrupting those plots. The report also details how CIA officials often inaccurately claimed that coercive interrogations had produced "otherwise unavailable" information that was key to disrupting these plots. As detailed on pp. 172-401 of the Committee's report, these statements are not supported by CIA records.

The release of this report finally makes the facts about torture available to the American public, and is an important step toward making sure that the US never repeats these mistakes. Another important step is calling out the defenders of torture any time they distort or deny the facts. Correcting years of misrepresentations from these officials is the only way to ensure the informed public debate that is necessary to keep America safe.

Filed Under: cia, cia torture report, john mclaughlin, ron wyden, senate, senate intelligence committee, torture, torture report

Senator Whitehouse Is Very Angry About A Made Up Google Search And A Made Up Pirate Bay

from the something-must-be-done dept

Senator Sheldon Whitehouse was a strong supporter of the SOPA/PIPA approach to breaking the internet to appease Hollywood. Even as lots of others bailed out on their support of the bills, Whitehouse refused to change his position. It appears he'd like to push such a solution again. On Wednesday, the Senate held hearings for the nominees for both the head of the US Patent and Trademark Office, Michelle Lee, as well as the new "Intellectual Property Enforcement Coordinator" (IPEC), Dan Marti. Marti is a bit of a wildcard, with most of his legal practice related to intellectual property being focused on trademark, rather than copyright. So it was worth paying attention to what he had to say in response to the questions. However the most bizarre and ridiculous question came from Senator Whitehouse, who proved to be rather confused about how both the internet and copyright law worked. You can see the full video here. Whitehouse begins talking around the one hour, 35 minute mark. He kicks it off by displaying his ignorance. First, he refers to Marti's predecessor, Victoria Espinel, and how he had asked her to do more to stomp out piracy, and then launches into a statement almost entirely devoid of factual statements:

I can remember Ms. Espinel coming here, some time ago to talk about the progress she intended to make in dealing with the criminal activity that steals American intellectual property, particularly entertainment content, and provides it to viewers, and that they were going to work really hard, with other American corporations that were supporting that activity to try to knock it down.

So while we were having this hearing, I picked up my iPad, and I went to Google, and I Googled "pirate movie." And Google gave me "The Pirate Bay" [holds up his iPad] which is an illegal enterprise, operating out of Sweden. And if you go to the page where you would get access to the pirate content, it says "get access now" and underneath it you have the flags of Visa, of Mastercard, of American Express, of Cirrus and of Paypal. And below that it tells you all the devices it works on and shows you the logos of Apple, Android, and so forth.

It looks to me like this criminal activity is still being wrapped around with the apparent support of a wide variety of American corporations. [Incredulous expression]. Explain to me how there's been progress made.

Almost everything Senator Whitehouse said in this statement is either wrong or totally clueless. It does not speak well of him as a Senator to be so misinformed about some rather basic things. First, there are the basics. A search engine is not and should not be illegal. Yet, Senator Whitehouse doesn't seem to understand the different role of a system like The Pirate Bay from a site that actually hosts or uploads infringing content. Second, at the time of the hearing, the Pirate Bay is down, so his claims pretending to show the site are clearly a lie. It's been in the news a lot that the site is gone. You'd think some staffer would have told Senator Whitehouse not to use that example.

Third, a Google search on "pirate movie" does not link to The Pirate Bay at all. Here's the search done on Google: Note that it actually highlights a 1982 movie, and even points people to Amazon where they can purchase it. Nowhere on the page does it point anyone to The Pirate Bay or any other site from which you can download infringing content. Not even close.

Senator Whitehouse appears to be flat out lying about what happens when you do such a search on Google, and then compounding it by lying about going to The Pirate Bay. On top of that, his description of what he claims he saw on The Pirate Bay appears to be totally false as well. And while some of my critics may find this difficult to believe, I've never used the site (other than occasionally reading some of its blog posts) so I reached out, via Twitter, to multiple people who had used the site regularly to see if his description was accurate. None could ever remember seeing credit card logos or Apple/Android logos. And, why would they, really, since the content found on The Pirate Bay was usually just pure files and available for free. So there would be no need to post credit card logos or even device compatibility, since that would depend more on the kinds of apps you used to view/listen/read the files obtained. Yes, there were tons of ads on the site, people point out, but they tended to be for crappy porn sites and the like.

In other words, almost every detail of what Senator Whitehouse describes is a lie. He may be describing some other site, but he didn't find it with the search he described and it wasn't The Pirate Bay. And even if there were logos from American companies, anyone can set up a website with such logos and it means nothing about whether they're complicit.

And then he demands that something must be done?

Marti barely gets half a robotic sentence out in response, saying that "criminal actors, criminal enterprises have no limits" when Whitehouse cuts him off with some more nonsense:

They actually do! [Holds up iPad again] There are ways in which these companies could go to court and try to knock this stuff down. There are ways in which prosecutors can have discussions with companies about aiding and abetting offenses and about being accessories to offenses. There's a lot that can be done in this area, it seems to me!

Marti points out that he was talking about something entirely different -- that sites will of course put up logos to make themselves try to look legit (though he doesn't go so far as to point out that Senator Whitehouse's suggestion that because a site puts up a logo, that doesn't mean the company whose logo was put up isn't "aiding and abetting" a damn thing).

Even more to the point, Whitehouse's claim that companies can "go to court and try to knock this stuff down" also makes no sense. Under what law? What legal issue is there in the (fake) circumstances that Whitehouse describes? At most, there might be a trademark violation, and does he really think it's worth company's time to go after such fly-by-night sites for trademark violations? And the whole "aiding and abetting" claim is ridiculous. Is Senator Whitehouse honestly claiming that if a site that offers up infringing works notes that the works can work on Apple or Android that Apple or Google are "accessories" to a crime? Isn't a Senator supposed to understand the law?

Whitehouse then turns to Michelle Lee, who used to work at Google, but on patent policy, not copyright, and asks her if Google could stop this. Though, again, he's flat out lying about what Google is supposedly doing. It's a bizarre question. And Lee just says she doesn't know the answer to that question (how could she when it makes no sense). Whitehouse gives a sarcastic "Hmm!" in response, as if he's discovered something -- other than actually revealing his astounding ignorance. He further claims that because Lee was a deputy general counsel at Google (again on patents, not copyright issues) that it shows that Google didn't really care about this issue. Really?

Finally, he appears to attack Marti for not having done anything, despite the fact he's not in the job yet, and then claims that all of this proves that the "voluntary" process that Espinel championed (like the ridiculous "six strikes" agreements between some ISPs and the legacy entertainment companies) is not enough. He seems to clearly be hinting that we need more government action, or more SOPA-type laws, based on an entirely false scenario that either he or his staffers (or some... lobbyists) made up and handed to him. Instead, all it shows is him getting angry in a manner that displays his near total ignorance of the topic at hand.

Is it really too much to ask that the people who make the laws impacting technology not be totally ignorant about both the laws and the technology? Frankly, Senator Whitehouse owes Marti, Lee and basically all internet users an apology.

Filed Under: copyright, danny marti, ip czar, ipec, michelle lee, search, senate, sheldon whitehouse, sopa, voluntary agreements
Companies: google, the pirate bay

Senators Hoping To Keep CIA From Destroying Most Of Its Employees' Emails

from the agency-replacing-'delete'-buttons-faster-than-ever dept

The CIA and Senate have found more to fight about. With the "Torture Report" mostly in the hands of the White House at this point, the two are now battling over the CIA's planned alterations to its email retention policies.

Key senators are pushing back against a CIA plan to destroy older emails of “non-senior” agency officials.

The heads of the Senate Intelligence Committee on Wednesday sent a letter opposing the proposal, under which only the highest ranking CIA workers would have their email correspondence permanently saved.

The plan “could allow the destruction of crucial documentary evidence regarding the CIA’s activities that is essential for Congress, the public and the courts to know,” Chairwoman Dianne Feinstein (D-Calif.) and Vice Chairman Saxby Chambliss (R-Ga.) wrote to the National Archives...

The senators are asking the National Archives to step up and somehow prevent this from happening -- most likely by declaring "non-senior" emails to be retainable records that must be turned over rather than destroyed. The CIA would prefer to destroy the emails of all but the top 22 employees three years after they leave, or when "no longer needed, whichever is sooner." Unfortunately for the senators making this request, the National Archive has already signaled its agreement with the CIA's proposed retention schedule changes.

In tentatively approving the request, the National Archives noted that the emailed information “is unlikely” to exist in other forms that will be marked for permanent storage.

Any information not found in those other files likely “has little or no research value,” it added.

Senators Feinstein and Chambliss -- in rare agreement with transparency and government accountability activists -- disagree with the National Archives' assessment.

“In our experience, email messages are essential to finding CIA records that may not exist in other so-called permanent records at the CIA,” Feinstein and Chambliss wrote.

Longer retention is needed, especially for an agency as secretive as the CIA. The standard wait period for sensitive document declassification is 25 years. Correspondence related to declassified documents will be long gone by that point.

Even in terms of normal FOIA requests, three years is cutting things close. Rarely does an FOIA-worthy event come to light within days or weeks of its occurrence. It's generally weeks, months or years down the road. By the time documents are requested, ignored by the CIA's FOIA staff and finally pried free by a federal lawsuit*, responsive documents may already have been destroyed. Without a doubt, the CIA knows this is a distinct possibility and any trimming of retention periods only makes it more likely that relevant communications will be permanently removed from circulation.

*YMMV

Filed Under: archives, cia, email, email retention, foia, history, records, senate, torture report