The Washington Post reports: The Justice Department has all but concluded it will not bring charges against WikiLeaks founder Julian Assange for publishing classified documents because government lawyers said they could not do so without also prosecuting U.S. news organizations and journalists, according to U.S. officials.
The officials stressed that a formal decision has not been made, and a grand jury investigating WikiLeaks remains impaneled, but they said there is little possibility of bringing a case against Assange, unless he is implicated in criminal activity other than releasing online top-secret military and diplomatic documents.
The Obama administration has charged government employees and contractors who leak classified information — such as former National Security Agency contractor Edward Snowden and former Army intelligence analyst Bradley Manning — with violations of the Espionage Act. But officials said that although Assange published classified documents, he did not leak them, something they said significantly affects their legal analysis.
Andy Martin writes: I was leafing through some FBI files on French philosophers when a new candidate for occupancy of the populous Grassy Knoll in Dallas leapt out at me. To the massed ranks of the CIA, the Mafia, the KGB, Castro, Hoover, and LBJ, we can now add: Jean-Paul Sartre. FBI and State Department reports of the 1960s had drawn attention to Sartre’s membership of the Fair Play for Cuba Committee, of which Lee Harvey Oswald was also a member. And — prophetically? — Sartre had “dismissed the US as a headless nation.” Naturally I rushed around trying to work out exactly where Sartre might have been on 22nd November 1963. Could he, after all, have been the Second Shooter? Suddenly all the pieces started to fall into place.
But subsequent references in the main Oswald file showed that the FBI, although generally perturbed by the “Leftist tendencies” of Sartre, and his association with Communists, Castro, and Bertrand Russell, were specifically concerned that he was now — in addition to protesting against US involvement in Vietnam — threatening to “take an active part in the French Who Killed Kennedy Committee” (according to an article in the Washington Post of 14th June 1964). The FBI was wedded to the Lone Gunman theory. The emphasis of their interest in Sartre, then, was not on whether he had participated in any conspiracy, but rather that he was a believer in conspiracy theory and “supported the position that Oswald was not the true assassin of President Kennedy.”
The FBI had been keeping an eye on Sartre from as early as 1945. Soon after, they began to investigate his contemporary, Albert Camus. On 7th February, 1946, John Edgar Hoover, director of the FBI, wrote a letter to “Special Agent in Charge” at the New York field office, drawing his attention to one ALBERT CANUS, “reportedly the New York correspondent of Combat [who] has been filing inaccurate reports which are unfavorable to the public interest of this country.” Hoover gave orders “to conduct a preliminary investigation to ascertain his background, activities and affiliations in this country.” One of Hoover’s underlings had the guts to inform the director that “the subject’s true name is ALBERT CAMUS, not ALBERT CANUS” (diplomatically hypothesizing that “Canus” was probably an alias he had cunningly adopted).
The irony that emerges from the FBI files on Camus and Sartre, spanning several decades (and which, still partly redacted, I accessed thanks to the open-sesame of the Freedom of Information Act) is that the G-men, initially so anti-philosophical, find themselves reluctantly philosophizing. They become (in GK Chesterton’s phrase) philosophical policemen. [Continue reading...]
Shane Harris writes: With every fresh leak, the world learns more about the U.S. National Security Agency’s massive and controversial surveillance apparatus. Lost in the commotion has been the story of the NSA’s indispensable partner in its global spying operations: an obscure, clandestine unit of the Federal Bureau of Investigation that, even for a surveillance agency, keeps a low profile.
When the media and members of Congress say the NSA spies on Americans, what they really mean is that the FBI helps the NSA do it, providing a technical and legal infrastructure that permits the NSA, which by law collects foreign intelligence, to operate on U.S. soil. It’s the FBI, a domestic U.S. law enforcement agency, that collects digital information from at least nine American technology companies as part of the NSA’s Prism system. It was the FBI that petitioned the Foreign Intelligence Surveillance Court to order Verizon Business Network Services, one of the United States’ biggest telecom carriers for corporations, to hand over the call records of millions of its customers to the NSA.
But the FBI is no mere errand boy for the United States’ biggest intelligence agency. It carries out its own signals intelligence operations and is trying to collect huge amounts of email and Internet data from U.S. companies — an operation that the NSA once conducted, was reprimanded for, and says it abandoned.
The heart of the FBI’s signals intelligence activities is an obscure organization called the Data Intercept Technology Unit, or DITU (pronounced DEE-too). The handful of news articles that mentioned it prior to revelations of NSA surveillance this summer did so mostly in passing. It has barely been discussed in congressional testimony. An NSA PowerPoint presentation given to journalists by former NSA contractor Edward Snowden hints at DITU’s pivotal role in the NSA’s Prism system — it appears as a nondescript box on a flowchart showing how the NSA “task[s]” information to be collected, which is then gathered and delivered by the DITU. [Continue reading...]
The Guardian reports: The Anonymous hacktivist sentenced on Friday to 10 years in federal prison for his role in releasing thousands of emails from the private intelligence firm Stratfor has told a Manhattan court that he was directed by an FBI informant to break into the official websites of several governments around the world.
Jeremy Hammond, 28, told a federal court for the southern district of New York that a fellow hacker who went under the internet pseudonym “Sabu” had supplied him with lists of websites that were vulnerable to attack, including those of many foreign countries. The defendant mentioned specifically Brazil, Iran and Turkey before being stopped by judge Loretta Preska, who had ruled previously that the names of all the countries involved should be redacted to retain their secrecy.
Within a couple of hours of the hearing, the three countries had been identified publicly by Forbes, the Huffington Post and Twitter feeds serving more than a million followers. “I broke into numerous sites and handed over passwords and backdoors that enabled Sabu – and by extension his FBI handlers – to control these targets,” Hammond told the court.
The 28-year-old hacker has floated the theory in the past that he was used as part of an effective private army by the FBI to target vulnerable foreign government websites, using the informant Sabu – real name Hector Xavier Monsegur – as a go-between. Sabu, who was a leading figure in the Anonymous-affiliated hacking group LulzSec, was turned by the FBI into one of its primary informants on the hacker world after he was arrested in 2011, about six months before the Stratfor website was breached. [Continue reading...]
Mike Masnick writes: It’s not a complete promise, but in an interview with the Washington Post, Attorney General Eric Holder suggested that, while he disagrees with some of what Glenn Greenwald is doing, he still thinks it’s legitimate journalism and he’s not looking to prosecute him for anything related to the Ed Snowden NSA leaks:
Holder indicated that the Justice Department is not planning to prosecute former Guardian reporter Glenn Greenwald, one of the journalists who received documents from Snowden and has written a series of stories based on the leaked material. Greenwald, an American citizen who lives in Brazil, has said he is reluctant to come to the U.S. because he fears detention and possible prosecution.
“Unless information that has not come to my attention is presented to me, what I have indicated in my testimony before Congress is that any journalist who’s engaged in true journalistic activities is not going to be prosecuted by this Justice Department,” Holder said.
“I certainly don’t agree with what Greenwald has done,” Holder said. “In some ways, he blurs the line between advocate and journalist. But on the basis of what I know now, I’m not sure there is a basis for prosecution of Greenwald.”
That’s not exactly a ringing endorsement of freedom of the press, nor is it probably enough to make Greenwald feel comfortable. [Continue reading...]
The Washington Post reports: FBI Director James B. Comey testified Thursday that the risk of cyberattacks is likely to exceed the danger posed by al-Qaeda and other terrorist networks as the top national security threat to the United States and will become the dominant focus of law enforcement and intelligence services.
Appearing before the Senate Homeland Security Committee, Comey said he expected Internet-related attacks, espionage and theft to emerge as the most consuming security issue for the United States by the end of his 10-year FBI term.
“We have connected all of our lives — personal, professional and national — to the Internet,” Comey said. “That’s where the bad guys will go because that’s where our lives are, our money, our secrets.”
The warning underscored the growing sense of alarm among officials in Washington over the nation’s vulnerability to online attacks as well as the diminished ability of al-Qaeda to mount plots against the United States after more than a decade of CIA drone strikes and other counterterrorism operations.
Rand Beers, the acting homeland security secretary, said his agency is working with European allies to identify and track militants from Western nations who may travel to Syria and then seek to return.
Despite that potential danger, officials said that the main terrorist threat inside the United States is that U.S. citizens or residents could adopt militant ideologies and develop plans for domestic attacks without communicating with terrorist networks or traveling overseas.
Tamerlan and Dzhokhar Tsarnaev, ethnic Chechen brothers accused of carrying out the bombings at the Boston Marathon this year, had “no formal or direct ties to al-Qaeda” but had embraced aspects of the terrorist group’s ideology, Olsen said. He added that cooperation with Russian intelligence services has improved since the Boston attacks.
The officials said counterterrorism efforts had been damaged by leaks of U.S. intelligence operations by former National Security Agency contractor Edward Snowden, and they warned of the impact of the budget cuts known as sequestration. Comey said the FBI is in the process of eliminating 3,500 positions because of budget pressures.
Despite concern about “homegrown extremists,” Comey said that he had concluded after just two months on the job that cyberthreats are likely to be more worrisome in the long term.
“That is why we anticipate that in the future, resources devoted to cyber-based threats will equal or even eclipse the resources devoted to non-cyber-based terrorist threats,” Comey said.
Will Potter writes: Ryan Shapiro has just wrapped up a talk at Boston’s Suffolk University Law School, and as usual he’s surrounded by a gaggle of admirers. The crowd, consisting of law students, academics, and activist types, is here for a panel discussion on the Animal Enterprise Terrorism Act, a 2006 law targeting activists whose protest actions lead to a “loss of profits” for industry. Shapiro, a 37-year-old Ph.D. student at the Massachusetts Institute of Technology, contributed a slideshow of newspaper headlines, posters, and government documents from as far back as the 1800s depicting animal advocates as a threat to national security. Now audience members want to know more about his dissertation and the archives he’s using. But many have a personal request: Would Shapiro help them discover what’s in their FBI files?
He is happy to oblige. According to the Justice Department, this tattooed activist-turned-academic is the FBI’s “most prolific” Freedom of Information Act requester — filing, during one period in 2011, upward of two documents requests a day. In the course of his doctoral work, which examines how the FBI monitors and investigates protesters, Shapiro has developed a novel, legal, and highly effective approach to mining the agency’s records. Which is why the government is petitioning the United States District Court in Washington, DC, to prevent the release of 350,000 pages of documents he’s after.
Invoking a legal strategy that had its heyday during the Bush administration, the FBI claims that Shapiro’s multitudinous requests, taken together, constitute a “mosaic” of information whose release could “significantly and irreparably damage national security” and would have “significant deleterious effects” on the bureau’s “ongoing efforts to investigate and combat domestic terrorism.”
So-called mosaic theory has been used in the past to stop the release of specific documents, but it has never been applied so broadly. “It’s designed to be retrospective,” explains Kel McClanahan, a DC-based lawyer who specializes in national security and FOIA law. “You can’t say, ‘What information, if combined with future information, could paint a mosaic?’ because that would include all information!”
Fearing that a ruling in the FBI’s favor could make it harder for journalists and academics to keep tabs on government agencies, open-government groups including the Center for Constitutional Rights, the National Security Archive, and the National Lawyers Guild (as well as the nonprofit news outlet Truthout and the crusading DC attorney Mark Zaid) have filed friend-of-the-court briefs on Shapiro’s behalf. “Under the FBI’s theory, the greater the public demand for documents, the greater need for secrecy and delay,” says Baher Azmy, CCR’s legal director. [Continue reading...]
You receive an ominous and anonymous email warning that your website will soon be the target of a cyberattack and since cyberattacks are illegal you decide to alert your local FBI office. Instead of providing assistance, the FBI thinks that you are threatening to take down their site and starts monitoring you.
This is like a story from the movie Brazil — one of the most durable representations of the bumbling tyranny of a national security state — except it’s not fiction. It happened to Antiwar.com.
The Guardian reports: The FBI monitored a prominent anti-war website for years, in part because agents mistakenly believed it had threatened to hack the bureau’s own site.
Internal documents show that the FBI’s monitoring of antiwar.com, a news and commentary website critical of US foreign policy, was sparked in significant measure by a judgment that it had threatened to “hack the FBI website” and involved a formal assessment of the “threat” the site posed to US national security.
But antiwar.com never threatened to hack the FBI website. Heavily redacted FBI documents, obtained through the Freedom of Information Act and shared with the Guardian, show that Eric Garris, the site’s managing editor, passed along to the bureau a threat he received against his own website.
Months later, the bureau characterized antiwar.com as a potential perpetrator of a cyberattack against the bureau’s website – a rudimentary error that persisted for years in an FBI file on the website. The mistake appears to have been a pillar of the FBI’s reasoning for monitoring a site that is protected by the first amendment’s free-speech guarantees.
“The improper investigation led to Garris and Raimondo being flagged in other documents, and is based on inappropriate targeting and sloppy intelligence work the FBI relied on in its initial memo,” said Julia Mass, an attorney with the ACLU of northern California, which filed the Freedom of Information Act request, and shared the documents with the Guardian.
FBI spokesman Paul Bresson said the bureau could not comment, as the ACLU’s litigation of the antiwar.com case is ongoing.
On 12 September 2001, Garris received an email with the subject line “YOUR SITE IS GOING DOWN.”
“Be warned assholes, ill be posting your site address to all the hack boards tonight, telling them about the little article at the moscowtimes and all. YOUR SITE IS HISTORY,” the unredacted parts of the email read.
Concerned, Garris forwarded the threatening email to the FBI field office in San Francisco, where he lives. (It is contained in the disclosed FBI documents.) “It was a threat and I wanted to report it,” Garris said.
But by 7 January 2002, someone in the field office characterized the message as “A THREAT BY GARRIS TO HACK FBI WEBSITE.” [Continue reading...]
Aarti Shahani reports: With online relationships, it’s complicated.
The billionaire founder of eBay, Pierre Omidyar, is bankrolling a new media company with reporters who have used WikiLeaks to break giant stories.
But the eBay-owned subsidiary PayPal is working with the Justice Department to prosecute a handful of WikiLeaks supporters. The defendants could serve decades in prison, and their convictions could decide if “hacktivism” is free speech or a felony offense.
On Oct. 31, 14 defendants are scheduled to walk into a federal court in San Jose, Calif. They are known as the PayPal 14, and prosecutors will ask them to plead guilty to attacking PayPal, the online payment service based in that city.
In December 2010, PayPal, Visa, Mastercard and major banks became targets of a spate of cyberattacks, but not by criminals who wanted to steal credit card numbers.
When the companies stopped processing online donations for WikiLeaks founder Julian Assange, supporters — some associated with the hacker group Anonymous — responded with a novel form of protest.
In the case of PayPal, they sent thousands of packets of data to the company’s servers at such a speed, its system nearly crashed.
“It was serious,” said PayPal spokesman Anuj Nayar, who recalled that deflecting the traffic felt like a chess game.
PayPal estimates the attacks cost $3.5 million in technology upgrades. The company gave prosecutors a list of the top 1,000 attackers. From that list, the Department of Justice indicted a handful as part of its ongoing crackdown against Anonymous.
The DOJ cannot comment on pending cases but relies on prosecution guidelines that consider how likely a person is to repeat an alleged offense. Attorney Peter Leeming, who represents one of the defendants, says the selection “seemed arbitrary to me.”
Leeming, based in Santa Cruz, Calif., has represented political protesters for decades and is developing a boutique practice around hacktivism, or online attacks that are politically or socially motivated and not driven by financial gain.
“They’re a relatively new creature,” he said. “Is demonstrating and shutting down a street any different from shutting down a line of commerce on the Internet?” [Continue reading...]
The Washington Post reports: The Justice Department on Friday informed a terrorism suspect in Colorado that it intends to use evidence against him gathered through the government’s warrantless surveillance program, a move that will likely lead to a constitutional challenge to the law.
It is the first time the government has informed a criminal defendant that it intends to use “information obtained or derived from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act.”
It is important because the Supreme Court last term declined to consider the constitutionality of the law amended five years ago because it said those who brought a lawsuit against it could not prove they had been subject to its provisions.
With the filing Friday, “it’s the first time since 2008 when the act was signed into law that the government has acknowledged the use of surveillance derived from the law in a criminal prosecution,” said Jameel Jaffer, deputy legal director of the American Civil Liberties Union.
Jaffer, who argued the previous case at the Supreme Court, said it was a “big deal” that “will undoubtedly set up a constitutional challenge to it.” [Continue reading...]
Yochai Benkler writes: Over 20 congressional bills aim to address the crisis of confidence in NSA surveillance. With Patriot Act author and Republican Congressman Jim Sensenbrenner working with Vermont Democratic Senator Patrick Leahy on a bipartisan proposal to put the NSA’s metadata program “out of business“, we face two fundamentally different paths on the future of government surveillance.
One, pursued by the intelligence establishment, wants to normalize and perpetuate its dragnet surveillance program with as minimal cosmetic adjustments as necessary to mollify a concerned public. The other challenges the very concept that dragnet surveillance can be a stable part of a privacy-respecting system of limited government.
Pervasive surveillance proponents make two core arguments.
First, bulk collection saves Americans from foreign terrorists. The problem with this argument is that all publicly available evidence presented to Congress, the judiciary, or independent executive branch review suggests that the effect of bulk collection has been marginal. Perhaps, this paucity of evidence is what led General Alexander and other supporters to add cyber security as a backup exigency to justify the program.
The second argument that defenders of mass surveillance offer is that detailed, complex and faithfully-executed rules for how the information that is collected will be used are adequate replacements for what the fourth amendment once quaintly called “probable cause” and a warrant “particularly describing the place to be searched, and the persons or things to be seized”. The problem with this second argument is that it combines two fundamentally incompatible elements.
Mass surveillance represents a commitment to near-universal all-seeing gaze, so as to assess and respond to threats that can arise anywhere, at any time. Privacy as a check on government power represents a constitutional judgment that a limited government must have limited power to inspect our daily lives, and that an omniscient government is too powerful for mere rules to restrain. The experience of the past decade confirms this incompatibility. Throughout its lifetime, NSA dragnet surveillance has repeatedly and persistently violated any rules in place meant to constrain it. [Continue reading...]
Ars Technica reports: Seven months after his conviction, Basaaly Moalin’s defense attorney moved for a new trial (PDF), arguing that evidence collected about him under the government’s recently disclosed dragnet telephone surveillance program violated his constitutional and statutory rights. Moalin’s is the only thwarted “terrorist plot” against America that the government says also “critically” relied on the National Security Agency phone surveillance program, conducted under Section 215 of the Patriot Act.
The government’s response (PDF), filed on September 30th, is a heavily redacted opposition arguing that when law enforcement can monitor one person’s information without a warrant, it can monitor everyone’s information, “regardless of the collection’s expanse.” Notably, the government is also arguing that no one other than the company that provided the information — including the defendant in this case — has the right to challenge this disclosure in court.
The success of these arguments is critical to the government; the terrorist plot for which Moalin and three other defendants were convicted in February was sending about $8,500 to al-Shabaab, known most recently for the Kenyan Westgate mall attack. The money was sent in 2007 and 2008.
The United States government designated al-Shabaab — which means “The Youth” — a terrorist group in 2008, but the FBI’s extensive wiretapping of Moalin started about two months before that. FBI Deputy Director Sean Joyce recently revealed to Congress that the FBI had also conducted another investigation into Moalin’s activities in 2003 and ultimately concluded that there was “no nexus to terrorism.” This evidence was kept from the defense during trial. [Continue reading...]
In a report for the Committee to Protect Journalists, Leonard Downie Jr., former editor of the Washington Post, writes: In the Obama administration’s Washington, government officials are increasingly afraid to talk to the press. Those suspected of discussing with reporters anything that the government has classified as secret are subject to investigation, including lie-detector tests and scrutiny of their telephone and e-mail records. An “Insider Threat Program” being implemented in every government department requires all federal employees to help prevent unauthorized disclosures of information by monitoring the behavior of their colleagues.
Six government employees, plus two contractors including Edward Snowden, have been subjects of felony criminal prosecutions since 2009 under the 1917 Espionage Act, accused of leaking classified information to the press — compared with a total of three such prosecutions in all previous U.S. administrations. Still more criminal investigations into leaks are under way. Reporters’ phone logs and e-mails were secretly subpoenaed and seized by the Justice Department in two of the investigations, and a Fox News reporter was accused in an affidavit for one of those subpoenas of being “an aider, abettor and/or conspirator” of an indicted leak defendant, exposing him to possible prosecution for doing his job as a journalist. In another leak case, a New York Times reporter has been ordered to testify against a defendant or go to jail.
Compounding the concerns of journalists and the government officials they contact, news stories based on classified documents obtained from Snowden have revealed extensive surveillance of Americans’ telephone and e-mail traffic by the National Security Agency. Numerous Washington-based journalists told me that officials are reluctant to discuss even unclassified information with them because they fear that leak investigations and government surveillance make it more difficult for reporters to protect them as sources. “I worry now about calling somebody because the contact can be found out through a check of phone records or e-mails,” said veteran national security journalist R. Jeffrey Smith of the Center for Public Integrity, an influential nonprofit government accountability news organization in Washington. “It leaves a digital trail that makes it easier for the government to monitor those contacts,” he said.
“I think we have a real problem,” said New York Times national security reporter Scott Shane. “Most people are deterred by those leaks prosecutions. They’re scared to death. There’s a gray zone between classified and unclassified information, and most sources were in that gray zone. Sources are now afraid to enter that gray zone. It’s having a deterrent effect. If we consider aggressive press coverage of government activities being at the core of American democracy, this tips the balance heavily in favor of the government.”
At the same time, the journalists told me, designated administration spokesmen are often unresponsive or hostile to press inquiries, even when reporters have been sent to them by officials who won’t talk on their own. Despite President Barack Obama’s repeated promise that his administration would be the most open and transparent in American history, reporters and government transparency advocates said they are disappointed by its performance in improving access to the information they need.
“This is the most closed, control freak administration I’ve ever covered,” said David E. Sanger, veteran chief Washington correspondent of The New York Times.
The Obama administration has notably used social media, videos, and its own sophisticated websites to provide the public with administration-generated information about its activities, along with considerable government data useful for consumers and businesses. However, with some exceptions, such as putting the White House visitors’ logs on the whitehouse.gov website and selected declassified documents on the new U.S. Intelligence Community website, it discloses too little of the information most needed by the press and public to hold the administration accountable for its policies and actions. “Government should be transparent,” Obama stated on the White House website, as he has repeatedly in presidential directives. “Transparency promotes accountability and provides information for citizens about what their government is doing.”
But his administration’s actions have too often contradicted Obama’s stated intentions. “Instead,” New York Times public editor Margaret Sullivan wrote earlier this year, “it’s turning out to be the administration of unprecedented secrecy and unprecedented attacks on a free press.”
“President Obama had said that default should be disclosure,” Times reporter Shane told me. “The culture they’ve created is not one that favors disclosure.” [Continue reading...]
Time reports: The largest Internet companies in the U.S. are preparing for a showdown with the U.S. government over their campaign to be more transparent about national-security-data requests. Google, Microsoft, Facebook, Yahoo and LinkedIn have until Oct. 21 to file a brief with the Foreign Intelligence Surveillance Court (FISC) after the Department of Justice formally opposed their request to disclose statistics about the nature and scope of government requests made under the Foreign Intelligence Surveillance Act (FISA).
The impending FISC showdown comes as U.S. lawmakers are weighing two bills that would give the companies the right to publish basic statistics about the government’s national-security-data demands. Since the initial revelations about the National Security Agency’s (NSA) surveillance programs were published in June — thanks to documents leaked by former NSA contractor Edward Snowden — the tech titans have been waging a battle to be more transparent about such data requests in an effort to demonstrate that they are not serving as NSA stooges.
The companies have repeatedly argued that their inability to be more transparent with the public undermines user trust, which in turn could have adverse consequences for their businesses.