No, There is No Blood On Snowden Hands

The director of the CIA is claiming that the attacks in Paris are at least partially the fault of Edward Snowden:

In a pair of public appearances this week, CIA Director John O. Brennan made clear that he blames leaks by former intelligence contractor Edward Snowden for enabling terrorists to evade detection.

“Because of a number of unauthorized disclosures, and a lot of hand-wringing over the government’s role in the effort to try to uncover these terrorists,” Brennan said, the CIA and others agencies have lost use of critical tools needed “to find these terrorists.”

Brennan’s assertion has become a refrain in the two years since Snowden exposed details about a range of U.S. surveillance programs. And former CIA director R. James Woolsey went further, saying on Sunday, “I think Snowden has blood on his hands from these killings in France.”

I guess this was to be expected. Ever since Snowden revealed the scale of the NSA’s domestic spying program, our government has been trying to blame him for … well, everything. But even the WaPo’s coverage is deeply skeptical:

The revelations that were the source of greatest controversy involved programs that would likely have been of little value in disrupting the Paris plot, experts said. The National Security Agency’s collection of data about the times and durations of billions of domestic phones calls was not designed to pick up calls entirely outside the United States.

A second program that relied heavily on cooperation from companies including AOL, Microsoft and Google was aimed at intercepting e-mail and phone calls between foreign operatives and individuals in the United States. Nothing has changed since that revelation to restrict the NSA’s ability to sweep up communications exclusively among foreigners, as was apparently the case for the plot in France.

“Aspiring terrorists already knew the U.S. government was doing everything it could to track and monitor their communications,” said Jameel Jaffer, the deputy legal director of the American Civil Liberties Union. “What Snowden disclosed was the astonishing extent to which the government’s surveillance power had been turned on ordinary citizens. The CIA director knows this. He’d just rather we talk about Snowden’s disclosures than about the intelligence community’s failures.”

Glenn Greenwald, Snowden’s amanuensis, makes similar points in his detailed response, pointing out that the FBI itself was warning about terrorists avoiding e-mail and electronic communications as early as 1997. Osama bin Laden did not use electronic communications but used couriers precisely because he was concerned that US electronic intelligence was too good.

Moreover … and this is important to repeat … Snowden’s revelations were not about our ability to spy on terrorists. What he revealed was mass domestic surveillance of Americans, almost all of which has been used to help the DEA and the IRS pursue criminal charges without all that pesky fourth amendment stuff.

So why would the CIA director be spewing this line of bullshit? Why would he be spewing it before the bodies are even cold? Two reasons. One, to cover up his own incompetence. Greenwald again:

For most major terror attacks, the perpetrators were either known to Western security agencies or they had ample reason to watch them. All three perpetrators of the Charlie Hebdo massacre “were known to French authorities,” as was the thwarted train attacker in July and at least one of the Paris attackers. These agencies receive billions and billions of dollars every year and radical powers, all in the name of surveilling Bad People and stopping attacks.

So when they fail in their ostensible duty, and people die because of that failure, it’s a natural instinct to blame others: Don’t look to us; it’s Snowden’s fault, or the fault of Apple, or the fault of journalists, or the fault of encryption designers, or anyone’s fault other than ours. If you’re a security agency after a successful Terror attack, you want everyone looking elsewhere, finding all sorts of culprits other than those responsible for stopping such attacks.

This need to deflect blame is especially acute when it comes to ISIS, which arose from the disbanded Iraqi armed forces, took advantage of the vacuum created by Bush’s invasion and Obama’s retreat, has been empowered by our stupid decision to throw in against Assad because we hoped that “moderates” would appear, and drawn support both from our “allies” in the region and our own lack of concern of where weapons provided to anti-Assad forces ended up.

There’s another another reason. NYT:

American and French officials say there is still no definitive evidence to back up their presumption that the terrorists who massacred 129 people in Paris used new, difficult-to-crack encryption technologies to organize the plot.

But in interviews, Obama administration officials say the Islamic State has used a range of encryption technologies over the past year and a half, many of which defy cracking by the National Security Agency. Other encryption technologies, the officials hint, are less secure than terrorist and criminal groups may believe, and clearly they want to keep those adversaries guessing which ones the N.S.A. has pierced.

Some of the most powerful technologies are free, easily available encryption apps with names like Signal, Wickr and Telegram, which encode mobile messages from cellphones. Islamic State militants used Telegram two weeks ago to claim responsibility for the crash of the Russian jet in the Sinai Peninsula that killed 224 people, and used it again last week, in Arabic, English and French, to broadcast responsibility for the Paris carnage. It is not yet clear whether they also used Telegram’s secret-messaging service to encrypt their private conversations.

(Actually, it appears that the terrorists used unencrypted SMS.)

There has been an enormous push from “security experts” to pre-emptively cripple digital encryption methods by demanding “back doors” for the government that would essentially render encryption useless. For the past few years, companies that support and provide digital encryption have been outright accused of aiding and abetting terrorism. And now the security state supporters have found an actual terrorist attack to pin on the door of companies that provide encryption, regardless of whether encryption was involved or not.

But encryption does not destroy the government’s ability to stop terrorists. They can still use human intelligence assets. They can still track metadata, they can still … maybe … answer the phone when the relative of a guy with a bomb in his underwear tries to warn them. They can still use Patriot Act powers. What they can not do is snoop through everyone’s e-mail in the hopes that they’ll catch a tax dodger, a drug dealer or, once in a blue moon, maybe a terrorist.

The encryption debate is currently at high heat. Obama has, to his credit, resisted efforts to demand back doors to encryption and Congress has been reluctant. What Brennan is doing is trying to exploit a tragedy to bypass this debate and expand his power.

We’ve been here before. In the 1990’s, our law enforcement agencies sought the power to have warrantless wiretaps, roving wiretaps, sneak-and-peak raids and other surveillance methods to use in pursuit of the War on Drugs. The Republican Congress refused to give them those powers because they believed they violated the Fourth Amendment. After 9/11, before the bodies were even cold, the CIA and FBI insisted that this was a the reason 9/11 happened; that had Congress given them those powers, they would have prevented it.

It was bullshit, of course. As we later found out, both agencies ignored critical pieces of evidence. They’d also taken an overzealous view of “the wall” between the agencies and refused to share information with each other. But the CIA and FBI were not actually that interested in how 9/11 happened. What they were interested in was getting the surveillance powers they had craved for so long. Americans were scared and the agencies cravenly exploited that fear to get the Patriot Act (Bob Barr, a sponsor of the Patriot Act and now opponent, has a good segment on this in an episode of Penn and Teller: Bullshit!). They then went on to use those powers to … pursue the War on Drugs.

Now we’ve had another awful terrorist attack. And the same leaches who exploited 9/11 to weaken our civil liberties now want to exploit Paris to weaken them again. To hell with them. To hell with them and their security state. To hell with them dancing in the blood of 130 dead Parisians. They were granted the powers they demanded after 9/11 and abused them. They shouldn’t get another bite at the apple of our liberty.

And here’s my challenge to supporters of the security state, Republican or Democrat. If you really think that our civil liberties are outdated or dangerous … if you really think that we shouldn’t mind these intrustions if we have nothing to hide … then you first.

Seriously. Put every e-mail you send on a public server so we can all look at them. Every single one. Broadcast your meta-data on a website so we can see exactly what you’re up to at all hours. Record your phone conversations … every one … and put them on YouTube. Show us every text message, tell us about everyone you meet, report every conversation. Because if you’re going to smear the blood of Paris on your face and demand that rest of us surrender our privacy, I want to see you leading by example. Show us that you have nothing to hide. Then … maybe … we’ll consider letting you snoop around our affairs.

The Clemency Question

The NYT has run an op-ed calling for Edward Snowden to be granted clemency or a plea deal so that he can return to the United States. While acknowledging that he broke the law, they argue:

Considering the enormous value of the information he has revealed, and the abuses he has exposed, Mr. Snowden deserves better than a life of permanent exile, fear and flight. He may have committed a crime to do so, but he has done his country a great service. It is time for the United States to offer Mr. Snowden a plea bargain or some form of clemency that would allow him to return home, face at least substantially reduced punishment in light of his role as a whistle-blower, and have the hope of a life advocating for greater privacy and far stronger oversight of the runaway intelligence community.

In retrospect, Mr. Snowden was clearly justified in believing that the only way to blow the whistle on this kind of intelligence-gathering was to expose it to the public and let the resulting furor do the work his superiors would not. Beyond the mass collection of phone and Internet data, consider just a few of the violations he revealed or the legal actions he provoked:

■ The N.S.A. broke federal privacy laws, or exceeded its authority, thousands of times per year, according to the agency’s own internal auditor.

■ The agency broke into the communications links of major data centers around the world, allowing it to spy on hundreds of millions of user accounts and infuriating the Internet companies that own the centers. Many of those companies are now scrambling to install systems that the N.S.A. cannot yet penetrate.

■ The N.S.A. systematically undermined the basic encryption systems of the Internet, making it impossible to know if sensitive banking or medical data is truly private, damaging businesses that depended on this trust.

■ His leaks revealed that James Clapper Jr., the director of national intelligence, lied to Congress when testifying in March that the N.S.A. was not collecting data on millions of Americans. (There has been no discussion of punishment for that lie.)

■ The Foreign Intelligence Surveillance Court rebuked the N.S.A. for repeatedly providing misleading information about its surveillance practices, according to a ruling made public because of the Snowden documents. One of the practices violated the Constitution, according to the chief judge of the court.

■ A federal district judge ruled earlier this month that the phone-records-collection program probably violates the Fourth Amendment of the Constitution. He called the program “almost Orwellian” and said there was no evidence that it stopped any imminent act of terror.

The shrill brigade of his critics say Mr. Snowden has done profound damage to intelligence operations of the United States, but none has presented the slightest proof that his disclosures really hurt the nation’s security. Many of the mass-collection programs Mr. Snowden exposed would work just as well if they were reduced in scope and brought under strict outside oversight, as the presidential panel recommended.

If you want read the dispatches of that shrill brigade, you can check them out here and here. Most of it is the usual boilerplate — Snowden’s a traitor, the NSA is saving our lives, don’t be so hysterical. But they do raise one valid point. If we were to cut some kind of a deal to allow Snowden to return, does this create a moral hazard for other NSA or CIA employees to reveal classified information?

That is a legitimate concern. Our country does have some secrets it needs to keep. But I find myself agreeing with Conor Friedersdorf that we can craft things so that we allow true whistleblowers to come forward while not endangering necesssary secrets:

Here are some possible standards:

When the leak reveals lawbreaking by the U.S. government

When the leak reveals behavior deemed unconstitutional by multiple federal judges

When a presidential panel that reviews the leaked information recommends significant reforms

When the leak inspires multiple pieces of reform legislation in Congress

When the leak reveals that a high-ranking national-security official perjured himself before Congress

When the leak causes multiple members of Congress to express alarm at policies being carried out without their knowledge

All of these are obviously met by Snowden as they were crafted around his acts. But that is the point. Clemency or pardon or a plea deal is not obviating the law. It is acknowledging that the law was broken but forgoing or reducing punishment due to extenuating circumstances. In this case, it is very easy to make clear what those extenuating circumstances were and tailor the circumstances to just cover Snowden.

Mataconis responds to the “hang Snowden” critics, most notably on the contention that Snowden should have gone to Congress. But he also raises a practical point:

There is, of course, one final point to keep in mind. Edward Snowden is currently beyond the reach of U.S. Law Enforcement and Intelligence Agencies for the foreseeable future. This means that we will remain unaware of what else it is that he might be in possession of that could be made public someday? Wouldn’t it make more sense to discuss making some kind of deal with him, in exchange for his full cooperation in exploring (1) what data he was able to obtain, (2) How he was able to obtain it even in cases where he apparently didn’t have the proper Security Clearances, and (3) How Intelligence Agencies could make their systems more secure in the future, rather than just leaving him hanging out there, apparently happy with his current living conditions, wondering when the next shoe is going to drop?

This carries a lot of weight with me. While Snowden is in foreign countries, the information he has, whatever it might be, in in danger of being revealed to our geopolitical enemies. Wouldn’t we much rather have him and his computers on American soil?

In the end, I find myself coming around to the idea that Snowden should be granted some sort of clemency … but only on things covered under the conditions Conor lists above: things related to massive surveillance, to law-breaking or to deception. He should not be granted any sort of clemency for any information he has given to Russia or China that compromises our national security. If Snowden has not revealed that kind of critical information to those countries, as he and his supporters claim, he should have no trouble accepting such a bargain.

Obama won’t do this, of course. He and his supporters have a lot invested in vilifying Snowden and defending the surveillance state. But maybe it’s something for Future President Rubio to consider.

Another Punch to the NSA

A few months ago, in response to Edward Snowden’s leaks, Obama put together a commission to whitewash his surveillance misdeeds make recommendations for how to improve privacy protections in the Surveillance Age. Yesterday, they came out with a slew of recommendations. Conor has a good roundup:

The panel’s 46 recommendations, all implicit critiques of the way the NSA operates now, would rein in the agency in many of the ways civil libertarians have urged. The timing of the report is significant, since it comes just after a federal judge issued a ruling calling the NSA’s phone dragnet “almost Orwellian” and likely unconstitutional. In other words, despite surveillance state protestations that its programs are legal, unobjectionable, and subject to oversight by all three branches of government, assessments of the program after the Snowden leaks have now resulted in strong rebukes from a federal judge, numerous legislators, and now a committee formed by the president himself.

Some of the most significant reforms suggested:

The government’s storage of bulk metadata is a risk to personal privacy and civil liberty, and as a general rule, “the government should
not be permitted to collect and store mass, undigested, non-public personal information about US persons.” Following this recommendation would end the Section 215 collection of telephone-call records as now practiced.

The conversations Americans have with people overseas should have more protection.

There should be new limits on the ability of FISA courts or National Security Letters to compel third parties to turn over private business records.

Telephone companies and Internet providers should be able to reveal general information about the amount of data that the government is requesting.

Regular people in foreign countries should enjoy at least some protections against unconstrained NSA surveillance.

The NSA should not intentionally weaken encryption or exploit security flaws in commercial software that have not yet been made public.

The director of the NSA and the head of the U.S. military’s cyber command should not be the same person.

The secret court that grants FISA requests should be an adversarial proceeding, not one in which the government gets to make its arguments unopposed.

The big question going forward is this: will Obama do any of this? These recommendations were a pleasant surprise and the ACLU has endorsed them (although the EFF thinks they don’t go far enough and I’m inclined to trust their judgement). But I think they were an unpleasant surprise to Obama, who expected the report to say he was respecting our liberty just fine.

I’m sure Obama’s supporters — his few remaining supporters — will praise him for putting the commission together and acting on even a tiny fraction of the recommendations. But remember: none of this would be happening without Edward Snowden. Obama was perfectly happy to have things go on as they are. Or get worse.

Judge Slams NSA

Poor poor NSA. Just last night, 60 minutes gave them a 20-minute infomercial about how wonderful they are. And all the Obama supporters, who blasted CBS for their Benghazi story, fell in line and said it reassured them.

And then, today, this:

A federal judge said Monday that he believes the government’s once-secret collection of domestic phone records is unconstitutional, setting up likely appeals and further challenges to the data mining revealed by classified leaker Edward Snowden.

U.S. District Judge Richard Leon said the National Security Agency’s bulk collection of metadata — phone records of the time and numbers called without any disclosure of content — apparently violates privacy rights.
His preliminary ruling favored five plaintiffs challenging the practice, but Leon limited the decision only to their cases.

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every citizen for purposes of querying and analyzing it without prior judicial approval,” said Leon, an appointee of President George W. Bush. “Surely, such a program infringes on ‘that degree of privacy’ that the Founders enshrined in the Fourth Amendment.”

Leon’s ruling said the “plaintiffs in this case have also shown a strong likelihood of success on the merits of a Fourth Amendment claim,” adding “as such, they too have adequately demonstrated irreparable injury.”
He rejected the government’s argument that a 1979 Maryland case provided precedent for the constitutionality of collecting phone metadata, noting that public use of telephones had increased dramatically in the past three decades.

This will certainly be appealed. Judge Leon didn’t overturn Smith vs. Maryland. What he did was make the pretty straight-forward argument that the information the government was collecting in 1979 by bugging an exchange for a few days to see who someone was calling is different from automatically slurping up comprehensive meta-data about millions of Americans every day. Check here for the ACLU’s demonstration of what can be done with “just” meta-data.

The usual suspects are decrying Judge Leon’s decision, although that seems entirely motivated by the lawsuit having been brought by, among others, Larry Klayman. Personally, I don’t care if the lawsuit was brought by Tarzan of the Apes. The fact is that the NSA’s meta-data collection program, which was kept secret until Snowden’s leaks, has to be addressed by the Supreme Court, not by some secret FISA Court.

Slurping up the Googles

We take a break from our regularly scheduled nap to tell you that there is absolutely nothing to worry about with Edward Snowden’s newest revelation: that the NSA is tapping into Google and Yahoo data centers:

The National Security Agency has secretly broken into the main communications links that connect Yahoo and Google data centers around the world, according to documents obtained from former NSA contractor Edward Snowden and interviews with knowledgeable officials.

By tapping those links, the agency has positioned itself to collect at will from hundreds of millions of user accounts, many of them belonging to Americans. The NSA does not keep everything it collects, but it keeps a lot.

According to a top-secret accounting dated Jan. 9, 2013, the NSA’s acquisitions directorate sends millions of records every day from Yahoo and Google internal networks to data warehouses at the agency’s headquarters at Fort Meade, Md. In the preceding 30 days, the report said, field collectors had processed and sent back 181,280,466 new records — including “metadata,” which would indicate who sent or received e-mails and when, as well as content such as text, audio and video.

The NSA’s principal tool to exploit the data links is a project called MUSCULAR, operated jointly with the agency’s British counterpart, the Government Communications Headquarters . From undisclosed interception points, the NSA and the GCHQ are copying entire data flows across fiber-optic cables that carry information between the data centers of the Silicon Valley giants.

The infiltration is especially striking because the NSA, under a separate program known as PRISM, has front-door access to Google and Yahoo user accounts through a court-approved process.

Now never mind that when PRISM was revealed, the NSA defenders told us that this was nothing to worry about, that it “proved” that NSA wasn’t tapping directly into the data streams but using court-approved secure data rooms to snoop (as if that were any better). Never mind that Greenwald and Snowden have let the NSA defenders get hoist by their own petard again by letting them spin and spin and lie and lie only to revealed to completely full of crap. Never mind, as Allahpundit notes, that the court had previously rebuked the NSA for similar data-gathering methods. No, no, no, it’s all OK. I’m sure they’re not digging up information on us. I’m sure it’s stopped a terrorist attack at some point.

What? Quit giving me those looks. We can trust these people. Even when they’ve been revealed to be completely lying their asses off. Don’t you care about terrorism?