DiFi & Rogers: "Snowden Should Have Come to Us" Message is Disingenuous at Best, Really Entrapment

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Monday November 04, 2013 · 7:10 AM PST

2013/11/04 · 07:10

Before I dive into this diary, let's clear something up: Edward Snowden did not petition for clemency. A clemency petition is predicated on a conviction and filed with the Office of the Pardon Attorney. Snowden has not been tried or convicted of any crime. The U.S. government has completely bastardized a letter Snowden wrote "To whom it may concern" in order to manufacture this narrative that Snowden requested clemency so that surveillance advocates in the White House (senior adviser Dan Pfeiffer,) and in Congress (Intelligence Committee Chairs Mike Rogers and Dianne Feinstein) could appear on the Sunday shows "denying clemency" in a transparent attempt to discredit the whistleblower who told us the truth about NSA and give the illusion that Snowden "admitted" some crime.

Considering that the procedure for applying for clemency requires a formal petition and subject to countless rule sand regulations, it is absurd and intentionally misleading for government officials to "deny clemency" for Snowden in the media based on a generalized letter written by a asylee not convicted of anything.

Speaking of discredited, Rogers and Feinstein (proponents of surveillance-enabling legislation intentionally mislabeled as "reform") shot off another completely disingenuous message over the weekend: that Snowden should have gone to the intelligence committees with his disclosures.

For Rogers and Feinstein to assert that Snowden should have come to them while in the same breath calling him a "traitor" and promoting legislation that will extend NSA's surveillance power is a devious distraction from the congressional intelligence committees' complicity in mass surveillance and abject failure to fulfill their oversight obligations.

Jesselyn Radack

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Thursday October 31, 2013 · 6:58 AM PDT

2013/10/31 · 06:58

The Washington Post has another groundbreaking story thanks to National Security Agency (NSA) whistleblower Edward Snowden this time revealing NSA's aggressive tool (MUSCULAR) that it uses to target American flagship companies Yahoo and Google:

The National Security Agency has secretly broken into the main communications links that connect Yahoo and Google data centers around the world . . . 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.

By using MUSCULAR to target American companies, NSA is deliberately bypassing laws on the books that prohibit data collection on Americans. First, MUSCULAR bypasses the Foreign Intelligence Surveillance Act (FISA) and takes advantage of the fact that different countries' privacy protections vary greatly. (Never mind that the U.S. is a signatory to the International Covenant on Civil and Political Rights, which protects the privacy rights of both foreigners and non-foreigners). Second, NSA is relying on "foreign data links" because NSA presumes anyone using a "foreign data link" is not an American. Americans traveling abroad are still Americans. (Although, on recent trips, I haven't taken any electronics for fear of having them seized and searched upon return the the U.S.). Moreover, countless Americans' data often travels over "foreign data links."

To guard against data loss and system slowdowns, Google and Yahoo maintain fortress-like data centers across four continents and connect them with thousands of miles of fiber-optic cable. Data move seamlessly around these globe-spanning “cloud” networks, which represent billions of dollars of investment.

Jesselyn Radack

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Wednesday October 30, 2013 · 5:55 AM PDT

2013/10/30 · 05:55

Granted, the NSA official who told the press, "We're really screwed now," was referring to Senate Intelligence Committee Chair Dianne Feinstein's new-found (and disingenuous considering her general enthusiasm for all things pro-surveillance) distaste for NSA's tapping the personal cell phone of close ally, German Chancellor Angela Merkel. No doubt the NSA official's sentiment remains after the events of the past two days.

FINALLY, after reprinting Executive branch talking points for far too long, the main stream media is beginning to change its tune. Back-to-back editorials in The New York Times and Washington Post over the past two days have slammed NSA for its overboard surveillance.
NYT took the White House to task for its far from credible response to the most recent surveillance revelations courtesy of NSA whistleblower Edward Snowden:

The White House response on Monday to the expanding disclosures of American spying on foreign leaders, their governments and millions of their citizens was a pathetic mix of unsatisfying assurances about reviews under way, platitudes about the need for security in an insecure age, and the odd defense that the president didn’t know that American spies had tapped the German chancellor’s cellphone for 10 years.
Is it really better for us to think that things have gone so far with the post-9/11 idea that any spying that can be done should be done and that nobody thought to inform President Obama about tapping the phone of one of the most important American allies?

The next day, even the notoriously conservative WaPo editorial board took issue with the NSA's spying on allied heads of state:

It’s important to make a distinction between the NSA’s collection of bulk foreign Internet and phone data for counterterrorism investigations and the surveillance of political leaders.

The NYT rightly objected to the underlying (and dangerous) mentality that led to such ill-advised and ineffective surveillance of friendly foreign leaders, surveillance that actually does more harm to national security than good by undermining trusted relationships with close allies:

That Chancellor Merkel’s cellphone conversations could fall under that umbrella is an outgrowth of the post-9/11 decision by President Bush and Vice President Dick Cheney that everyone is the enemy, and that anyone’s rights may be degraded in the name of national security. That led to Abu Ghraib, torture at the secret C.I.A. prisons, warrantless wiretapping of American citizens, grave harm to international relations, and the dragnet approach to surveillance revealed by the Snowden leaks.

Jesselyn Radack

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Monday October 28, 2013 · 6:46 AM PDT

2013/10/28 · 06:46

Since National Security Agency (NSA) whistleblower Edward Snowden disclosed the NSA's ineffective and illegal dragnet surveillance programs in June, the White House has scrambled and dissembled to explain the surveillance. The New York Times reports on the latest Executive branch doublespeak:

New details about the monitoring of Chancellor Angela Merkel’s cellphone by the National Security Agency further stoked the German government’s anger on Sunday and raised two questions: Why did the United States target her as early as 2002, and why did it take five years for the Obama administration to put a halt to the surveillance?

The Executive branch "answers" are more confusing than clarifying. NSA first denied that Obama knew about the surveillance:

The N.S.A. statement said that “General Alexander did not discuss with President Obama in 2010 an alleged foreign intelligence operation involving German Chancellor Merkel, nor has he ever discussed alleged operations involving Chancellor Merkel. News reports claiming otherwise are not true.”

However, the omnipotent oft-quoted anonymous "senior administration official" attempted to debunk the obvious implication of NSA spying on allied heads of state without telling the President:

On Sunday evening a senior administration official said of the spying on allies that the White House believed that “it’s not that the N.S.A. or the intelligence community were going rogue or operating out of bounds.”

The government is too busy trying to keep its misleading statements straight and defend itself after being caught red-handed listening in on innocent people to recognize the outrageousness of telling the American public and the world that "The NSA is in the President's control, but doesn't inform the President of a mission to tap the cell phone of close allied heads of state." Either of this incongruous alternatives - an out-of-control surveillance state with an uniformed or intentionally ignorant executive or an executive who sees no qualms about betraying key allies - should be wholly unacceptable in a constitutional democracy. Read More

Spying on the Spies: The Brilliance of Matzzie's Acela Encounter with Hayden

Jesselyn Radack

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Friday October 25, 2013 · 7:06 AM PDT

2013/10/25 · 07:06

The Twitterverse buzzed last night when a former Moveon.org staffer who now heads a renewable energy company, Tom Matzzie, live tweeted former National Security Agency (NSA) and Central Intelligence Agency (CIA) Director Michael Hayden having "off the record" conversations with reporters.

Former NSA spy boss Michael Hayden on Acela behind me blabbing "on background as a former senior admin official" Sounds defensive.
— Tom Matzzie (@tommatzzie) October 24, 2013

On Acela listening to former NSA spy boss Michael Hayden give "off record" interviews. I feel like I'm in the NSA. Except I'm in public.
— Tom Matzzie (@tommatzzie) October 24, 2013

Hayden was bragging about rendition and black sites a minute ago.
— Tom Matzzie (@tommatzzie) October 24, 2013

Matzzie offered Hayden a small taste of what it is like to have your every conversation monitored.

I propose a similar tactic for all of the surveillance state apologists officials and Congresspeople who argue that metadata is not surveillance. Let us track their every movement, phone call, credit card purchase, text message, e-mail and tweet. There is a plethora of not necessarily secret information the spies might not want the public to know. We can find out where Dianne Feinstein (who recently argued that the metadata call records program was "not surveillance") gets her hair done or where John Boehner gets his fake tan. Or where Director of National Intelligence James Clapper eats breakfast and goes to the Gym. Or how often NSA Director Keith Alexander visits his dentist or calls his doctor. Or how often they talk to SAIC and CSC management officials who have lucrative government contracts.

Jesselyn Radack

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Thursday October 24, 2013 · 7:24 AM PDT

2013/10/24 · 07:24

In the latest fallout from the NSA being caught red-handed spying on the innocent civilian populations and leaders of close U.S. allies, German Chancellor Angela Merkel is outraged at the U.S. for tapping her cell phone. The New York Times reports:

Ms. Merkel herself angrily demanded assurances from President Obama that her cellphone was not the target of an American intelligence tap as soon as suspicions surfaced on Wednesday. Washington hastily pledged that her calls were not being monitored and would not be in future but conspicuously said nothing about the past.

From The Guardian:

Germany's foreign minister, Guido Westerwelle, has called the US ambassador to a personal meeting to discuss allegations that US secret services bugged Angela Merkel's mobile phone.
. . .
Informed sources in Germany said Merkel was livid about the reports that the NSA had bugged her phone and was convinced, on the basis of a German intelligence investigation, that the reports were utterly substantiated.

For the second time in two days, the U.S. is paying a high price for the NSA's dragnet "collect the whole haystack to find the needle" approach to surveillance:

Ms. Merkel’s angry call to Mr. Obama was the second time in 48 hours – after a similar furor in France prompted Mr. Obama to call President François Hollande — that the president found himself on the phone with a close European ally to argue that continuing revelations of invasive intelligence gathering should not undermine decades of hard-won trans-Atlantic trust.

France and Germany join Mexico and Brazil in the outrage over NSA surveillance:

The damage to core American relationships continues to mount. Last month, President Dilma Rousseff of Brazil postponed a state visit to the United States after Brazilian news media reports — fed by material from Mr. Greenwald — that the N.S.A. had intercepted messages from Ms. Rousseff, her aides and the state oil company, Petrobras. Recently, the German newsmagazine Der Spiegel, which has said it has a stack of Snowden documents, suggested that United States intelligence had gained access to communications to and from President Felipe Calderón of Mexico while he was still in office.

Not to mention Bolivia, which had its President's life put in danger when the U.S. forced his plane down while hunting for whistleblower Edward Snowden.

Meanwhile, reports of the usefulness of the surveillance in thwarting terrorist attacks have proven to be greatly exaggerated if not completely fabricated.

Jesselyn Radack

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Tuesday October 22, 2013 · 7:04 AM PDT

2013/10/22 · 07:04

The New York Times has a chilling account from the civilians in a town plagued by U.S. drone warfare.

But viewed from Miram Shah, the frontier Pakistani town that has become a virtual test laboratory for drone warfare, the campaign has not been the antiseptic salve portrayed in Washington. In interviews over the past year, residents paint a portrait of extended terror and strain within a tribal society caught between vicious militants and the American drones hunting them. . . .
.It has become a fearful and paranoid town, dealt at least 13 drone strikes since 2008, with an additional 25 in adjoining districts — more than any other urban settlement in the world.

Even when the missiles do not strike, buzzing drones hover day and night, scanning the alleys and markets with roving high-resolution cameras.

Imagine if New York or Washington, D.C. or any small American town buzzed with the sound of another country's drones flying overhead, looking for targets to obliterate with seemingly little care for whether innocent civilians are also in the vicinity.

Government officials have touted the drone campaign as the most ethical, humane way to kill terrorists. Here's what now CIA Director John O. Brennan, then Obama's assassination czar, had to say about drones last year:

By targeting an individual terrorist or small numbers of terrorists with ordnance that can be adapted to avoid harming others in the immediate vicinity, it is hard to imagine a tool that can better minimize the risk to civilians than remotely piloted aircraft.
For the same reason, targeted strikes conform to the principle of humanity which requires us to use weapons that will not inflict unnecessary suffering. For all these reasons, I suggest to you that these targeted strikes against al-Qa’ida terrorists are indeed ethical and just.

Thanks to some rare but much needed investigative reporting and the tireless work of countless human rights groups, it's a well known fact that the U.S. government's estimates of civilians killed and maimed by drones is far lower than the true number. The report in today's New York Times as well as two new studies from Amnesty International and Human Rights Watch all confirm that drones are far from the perfect, precise warfare the administration makes them out to be. Rather the drone campaign is a brutal method of killing that terrifies the innocent civilians not killed or maimed by drone attacks. Read More

Snowden's Personal Revelations

Jesselyn Radack

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Friday October 18, 2013 · 6:50 AM PDT

2013/10/18 · 06:50

Everyone from Pulitzer Prize winning author Alice Walker to New York Times editor Jill Abramson to Apple's Steve Wozniak agrees that National Security Agency (NSA) whistleblower Edward Snowden's revelations are unquestionably in the public interest.

Nonetheless, "anonymous government officials" and surveillance state apologists still accuse Snowden of damaging national security without any proof and spread the false rumor that he gave national security secrets to China and Russia. Last night gave two accounts of Snowden's revelations from the New York Times' James Risen and myself based on my recent in-person visit with him, accounts which were not coordinated but are completely consistent and roundly debunk once and for all the unfounded accusation that Snowden is a spy.

Risen, a journalist of the highest caliber, writes:

Mr. Snowden said he gave all of the classified documents he had obtained to journalists he met in Hong Kong, before flying to Moscow, and did not keep any copies for himself. He did not take the files to Russia “because it wouldn’t serve the public interest,” he said.

Jesselyn Radack

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Thursday October 17, 2013 · 6:33 AM PDT

2013/10/17 · 06:33

Thanks again to National Security Agency (NSA) whistleblower Edward Snowden, the public knows more details about the NSA's involvement in the Executive Branch assassination by drone program. The Washington Post reported on the program, focusing on the case of alleged Al Qaeda leader Hassan Ghul.

While it is in the public interest - though not terribly surprising - that NSA is involved in the assassinations, WaPo's report strikes the wrong tone, giving far too much ink to the government's "We Got Ghul!" cheerleading. WaPo reports that the documents "confirm his demise in October 2012." "His demise" is WaPo speak for his assassination at the hands of the U.S. government in a program that has taken the lives of thousands of innocent foreign civilians and several of our own citizens, including 16-year-old Abdulrahman al-Awlaki.

WaPo admits it sanitized the story at the request of the U.S. government:

The Post is withholding many details about those missions, at the request of U.S. intelligence officials who cited potential damage to ongoing operations and national security.

This story sorely needs the investigative reporting of Marcy Wheeler (@emptywheel) and Jeremy Scahill (@jeremyscahill). Read More

War on Journalists: Despite Promises to Protect Press, DOJ Continues to Pursue Risen

Jesselyn Radack

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Wednesday October 16, 2013 · 5:56 AM PDT

2013/10/16 · 05:56

The New York Times reports on the latest in the war on journalists:

A federal appeals court on Tuesday declined to hear an appeal by James Risen, an author and a reporter for The New York Times, who was ordered in July to testify in the trial of a former Central Intelligence Agency official accused of leaking information to him.
The decision, by the full United States Court of Appeals for the Fourth Circuit, is expected to set up an appeal by Mr. Risen to the Supreme Court in what has become a major case over the scope and limitations of First Amendment press freedoms.

The Justice Department's continued aggressive pursuit of Risen demonstrates that the Obama administration's promises to better protect the freedom of the press do not apply when the Justice Department decides to chill national security reporting. The Justice Department chose not withdraw its subpoena, and argued against further review of the decision ordering Risen to testify about his source. Risen has commendably said he will choose jail over betraying a source:

Mr. Risen has said he would go to prison rather than comply with a judicial order to testify about his sources, and on Tuesday he said, “I am determined to keep fighting.”

Jesselyn Radack

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Tuesday October 15, 2013 · 7:37 AM PDT

2013/10/15 · 07:37

The Washington Post revealed that the National Security Agency (NSA) is collecting the e-mail address books of potentially tens of millions of American citizens

The collection program, which has not been disclosed before, intercepts e-mail address books and “buddy lists” from instant messaging services as they move across global data links. Online services often transmit those contacts when a user logs on, composes a message, or synchronizes a computer or mobile device with information stored on remote servers.
. . .
Contact lists stored online provide the NSA with far richer sources of data than call records alone. Address books commonly include not only names and e-mail addresses, but also telephone numbers, street addresses, and business and family information. Inbox listings of e-mail accounts stored in the “cloud” sometimes contain content, such as the first few lines of a message.
. . .
two senior U.S. intelligence officials acknowledged that it sweeps in the contacts of many Americans. They declined to offer an estimate but did not dispute that the number is likely to be in the millions or tens of millions.

While I'm smiling thinking of anyone who made fun of me for still having a paper Rolodex in the digital age, as an attorney, this is a stunning breach of confidentiality. If I had my client contacts (many of whom have been criminally prosecuted under the Espionage Act) stored electronically, attorney-client privileged communications would be severely compromised.

The concern is not limited to attorney-client privileged information. Anyone with a confidential to sensitive relationship - doctors, counselors, psychologists, financial advisors - is at risk of losing their confidentiality. The NSA has secretly abolished legally-protected confidentiality, which infringes professionals' ability to conduct their business in accordance with ethical obligations.

Jesselyn Radack

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Wednesday September 25, 2013 · 6:38 AM PDT

2013/09/25 · 06:38

Yesterday, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) spoke yesterday at an incredible event featuring members of the Church Committee. WaPo reported:

A senior U.S. senator on Tuesday called for an end to the National Security Agency’s phone records collection program, arguing that it treads too heavily on Americans’ privacy rights without having proved its value as a counterterrorism tool.

Leahy's condemnation of NSA's unconstitutional spying operations is positive and significant. Members of the Church Committee echoed Leahy's objections. Former Vice President Walter Mondale expressed concern that the FISA court is now taking cases that should be in regular federal court and said that bulk metadata collection was "upside down" from what the Church Committee intended. Gary Hart said when FISA was developed they "didn't know about NSA & other agencies hoovering up all communications." Loch Johnson spoke eloquently about Congressional culpability in the spy programs, expressing surprise about how much deference many members of Congress give to bulk collection. They all called for a renewed Church Committee-type investigation. I heartily agree. An aggressive investigation into NSA's domestic spying activities is sorely needed.

If the panelists had focused on the surveillance issues alone, there would be little to criticize. Unfortunately, their positive remarks were tempered by their either slamming or casting aside the person who made this important debate - and hopefully resulting legal reforms - possible: the whistleblower Edward Snowden.

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DiFi & Rogers: "Snowden Should Have Come to Us" Message is Disingenuous at Best, Really Entrapment

MUSCULAR: NSA Aggressively Bypasses the Law (Again)

NSA: "We're Really Screwed Now:" Main Stream Media Turns Around

White House Dissembling on All Things NSA

Spying on the Spies: The Brilliance of Matzzie's Acela Encounter with Hayden

Alienating Our Allies One Country After Another

Living in a Drone Laboratory

Snowden's Personal Revelations

WAPO's Report on NSA Involvement Glorifies Assassination By Drone Program

War on Journalists: Despite Promises to Protect Press, DOJ Continues to Pursue Risen

NSA Collecting E-Mail Address Books of Tens of Millions of Americans

Disappearing the Whistleblower: We Would Not Be Talking About NSA Without Edward Snowden