Another DOJ Spy Case Unravels, No “Back Door” Key to Encrypted Data for FBI, and Much More: FRINFORMSUM 10/15/2015

Robin L. Raphel, right, a State Department adviser, meeting with Sartaj Aziz, Pakistan’s national security adviser, in Islamabad in 2013. Ms. Raphel has been the target of a spying investigation. Credit B.K. Bangash/Associated Press

The Justice Department’s espionage investigation into career diplomat Robin L. Raphel is quickly fizzling, according to officials close to the investigation, likely leaving the DOJ to decide whether or not to prosecute Raphel “for the far less serious charge of keeping classified information in her home.” The unraveling of the spying case is following an unnerving pattern; the DOJ dropped charges against Temple University physicist Xiaoxing Xi, accused of sharing superconductor technology with China, last month, and dropped all charges against government hydrologist Sherry Chen in May. The investigation into Raphel began last year after officials eavesdropped on a call between Raphel – who has been integral to shaping foreign policy towards Pakistan for decades – and a Pakistani official, which seemed to indicate that she “was passing American secrets to Pakistan.”

The Raphel also case highlights the lack of consistent charges brought against government employees that have – intentionally or not – mishandled classified information. Bill Clinton’s National Security adviser Sandy Berger stole documents from NARA and pleaded guilty to a misdemeanor; David Petraeus shared highly classified information with mistress and biographer Paula Broadwell and (over strenuous objections from the FBI) pleaded guilty to a misdemeanor; former Attorney General Alberto R. Gonzales took classified information on wiretapping home with him and was never charged; and FBI counterterrorism specialist John O’Neill “lost a briefcase full of government secrets in a Florida hotel” and was never charged.

Protesting the NYPD’s Demographics Unit. Photo: Seth Wenig/AP

The 3rd U.S. Circuit Court of Appeals has reinstated a 2012 lawsuit accusing the New York Police Department of civil rights violations for its spying on Muslims. A lower court ruled last year that, “police did not violate the rights of Muslims by routinely putting some people and businesses under surveillance in an effort to prevent terrorism.” The appeals court disagreed, ruling that “there is standing to complain and which present constitutional concerns that must be addressed and, if true, redressed.” Last April the NYPD shut down its Demographics Unit, the branch responsible for the surveillance, after reporting that the unit spied on Muslim neighborhoods and designated entire mosques “terrorism enterprises” caused an uproar. The NYPD’s use of the “terrorism enterprises” label allowed the unit to collect the license plate numbers of every car in mosque parking lots, videotape worshipers, and record sermons using hidden microphones. The program was the brainchild of lawyer Lawrence Sanchez who worked for the NYPD while on the CIA payroll, began in 2003, and “never generated a lead.”

The Obama administration has decided that it is not possible to give law enforcement access to encrypted communications “without also creating an opening that China, Russia, cybercriminals and terrorists could exploit.” Law enforcement agencies, led by the FBI, have previously lobbied that Apple, Google, and other groups providing encrypted technology provide a “back door” that would enable the government to view the encrypted data. With the administration’s decision, “investigators will have to hope they find other ways to get what they need, from data stored in the cloud in unencrypted form or transmitted over phone lines, which are covered by a law that affects telecommunications providers but not the technology giants.”

Chelsea Manning, the former military intelligence analyst currently serving a 35-year sentence for leaking over 700,000 government documents to WikiLeaks, is suing the FBI for the files it complied during its WikiLeaks investigation. Last year the bureau denied her FOIA request for the records, “claiming they may be relevant to a pending or prospective law-enforcement proceeding. Manning argues that her 2013 court martial should render the exemption moot, since any further prosecution of her in federal court would constitute double jeopardy, barred by the Constitution.”

In the first legal proceedings reliant on the Senate Intelligence Committee’s report on the CIA’s torture program, two US detainees and the family of a third who died in custody are suing the psychologists who designed the program, James Mitchell and John “Bruce” Jessen. Mitchell and Jessen, who had no interrogation experience, earned $80 million “propos[ing] a pseudo-scientific theory of countering resistance that justified the use of torture” and used the detainees – who were never charged – as an “opportunity to test (their) ‘learned helplessness theory.’”

Steve Aftergood recently highlighted the latest DOD security clearance numbers, which were presented in the latest quarterly report on Insider Threat and Security Clearance Reform. According to the figures the DOD’s security-cleared population is now 3.8 million, down 17.4% from two years ago. Aftergood notes, “Moreover, only 2.2 million of the 3.8 million cleared DoD personnel are actually ‘in access,’ meaning that they have current access to classified information. So further significant reductions in clearances would seem to be readily achievable by shedding those who are not ‘in access.’” The Navy also updated its guidance for its own Insider Threat Program, calling for a reduction of privileged users with unusually broad access to IT systems and data “and, therefore, could pose a higher risk of insider threat.”

Silk.co datajournalist Alice Corona has posted an interesting article shedding light on almost 300 patents filed by the National Security Agency. The NSA’s patents are a special breed of patent, never expiring and only revealed to the public if someone else files an identical patent, in which case the NSA’s patent is published by the US Patent and Trademark Office. Corona culled the USPTO data to compile databases of “200 NSA patents publicly granted to the NSA and published on USPTO,” and “78 NSA patents reported by Foreign Policy that didn’t show up when querying USPTO.” The patents include algorithms that identify topics and summarize large amounts of text, geo-locating methods, and an ornamental design of a game board.

Does not look like a riveting game.

According to documents personally delivered by Secretary of State John Kerry to Chilean president Michelle Bachelet last week, Chile’s intelligence service assassinated exiled critic Orlando Letelier with a car bomb in 1976 on “direct orders” from Chilean dictator Augusto Pinochet. A secret CIA memo prepared for President Reagan in 1987 concluded that there was “convincing evidence” that Chilean dictator Augusto Pinochet “personally ordered his intelligence chief to carry out the murder” of exiled critic Orlando Letelier in Washington D.C. “Pinochet decided to stonewall on the US investigation to hide his involvement,” the CIA review also noted, and as part of the cover-up considered “even the elimination of his former intelligence chief,” DINA director Manuel Contreras, who had overseen the assassination plot. The Archive filed a Freedom of Information Act petition to secure the declassification of the CIA assessment and the raw intelligence reports it was based on. “This document is clearly the holy grail of the Letelier-Moffitt case,” said Peter Kornbluh who directs the Archive’s Chile Documentation Project. Kornbluh called on the agency “to release this document to complete the Obama administration’s special declassification project on Chile.”

Declassified documents published by the Archive this week show internal State Department debates over whether or not to enforce “red lines” over Pakistan’s nuclear activities, and concerns over an Indian “pre-emptive strike.” The posting “explores important divisions within the U.S. government over Pakistani nuclear proliferation as it played out against the backdrop of the war in Afghanistan, exposing some difficult and controversial trade-offs in support of U.S. foreign policy interests. At the same time, the documents open a fascinating window into official attempts to manage outside scrutiny of a sensitive U.S. policy by one of America’s hardest-hitting investigative reporters.”

Autumn Forge war games map.

This week’s #tbt pick is chosen with the German television series, Deutschland 83, dramatization of the Able Archer Nuclear War Scare in mind. Archive FOIA Project Director Nate Jones has –through extensive research and years of targeted declassification requests–curated the most comprehensive collection of Able Archer material currently available. This collection includes a slide (above) from the unclassified September 9, 1983, commander airlift forces briefing that shows the expansive “footprint” of the Autumn Forge war games – the names of which, like “Brave Guy,” “Quantum Jump,” and “Northern Wedding,” have provided the titles for every Deutschland 83 episode to date.

Happy FOIA-ing!