On Q Professional Investigations

WASHINGTON — In a major ruling on press freedoms, a divided federal appeals court on Friday ruled that James Risen, an author and a reporter for The New York Times, must testify in the criminal trial of a former Central Intelligence Agency official charged with providing him with classified information.

In a 118-page set of opinions, two members of a three-judge panel for the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., ruled that the First Amendment does not protect reporters who receive unauthorized leaks from being forced to testify against the people suspected of leaking to them. A district court judge who had ruled in Mr. Risen’s case had said that it did.

“Clearly, Risen’s direct, firsthand account of the criminal conduct indicted by the grand jury cannot be obtained by alternative means, as Risen is without dispute the only witness who can offer this critical testimony,” wrote Chief Judge William Byrd Traxler Jr., who was joined by Judge Albert Diaz in Friday’s ruling.

Mr. Risen has vowed to go to prison rather than testify about his sources and to carry any appeal as far as the Supreme Court. But some legal specialists said an appeal to the full appeals court was a likely first step. Mr. Risen referred a request to comment to his lawyer, Joel Kurtzberg, who wrote in an e-mail: “We are disappointed by and disagree with the court’s decision. We are currently evaluating our next steps.”

Judge Roger Gregory, the third member of the panel, filed a vigorous dissent, portraying his colleagues’ decision as “sad” and a serious threat to investigative journalism.

“Under the majority’s articulation of the reporter’s privilege, or lack thereof, absent a showing of bad faith by the government, a reporter can always be compelled against her will to reveal her confidential sources in a criminal trial,” he wrote. “The majority exalts the interests of the government while unduly trampling those of the press, and in doing so, severely impinges on the press and the free flow of information in our society.”

Friday’s ruling establishes a precedent that applies only to the Fourth Circuit, but that circuit includes Maryland and Virginia, where most national security agencies like the Pentagon and the Central Intelligence Agency are. As a result, if it stands, it could have a significant impact on investigative journalism about national security matters.

It has long been unclear whether the Constitution protects reporters from being forced to testify against their sources in criminal trials. The principal Supreme Court precedent in that area, which is more than 40 years old, concerns grand jury investigations, not trials, and many legal scholars consider its reasoning to be ambiguous.

“We agree with the decision,” said Peter Carr, a Justice Department spokesman. “We are examining the next steps in the prosecution of this case.”

The ruling was awkwardly timed for the Obama administration.

Attorney General Eric H. Holder Jr. has portrayed himself as trying to rebalance the department’s approach to leak investigations in response to the furor over its aggressive investigative tactics, like subpoenaing Associated Press reporters’ phone records and portraying a Fox News reporter as a criminal conspirator in order to obtain a warrant for his e-mails.

Last week, Mr. Holder announced new guidelines for leak investigations that significantly tightened the circumstances in which reporters’ records could be obtained. He also reiterated the Obama administration’s proposal to revive legislation to create a federal media shield law that in some cases would allow judges to quash subpoenas for reporters’ testimony, as many states have.

“It’s very disappointing that as we are making such good progress with the attorney general’s office and with Congress, in getting them to recognize the importance of a reporter’s privilege, the Fourth Circuit has taken such a big step backwards,” said Gregg Leslie, the legal defense director for the Reporters Committee for Freedom of the Press.

Mr. Risen is a national security reporter for The Times, but the case revolves around material he published in his 2006 book, “State of War,” not in the newspaper. A chapter in the book recounted efforts by the C.I.A. in the Clinton administration to trick Iranian scientists by having a Russian defector give them blueprints for a nuclear triggering device that had been altered with an error. The chapter portrays the operation as reckless and botched in a way that could have helped the Iranians gain accurate information.

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WASHINGTON — President Obama plans to open a new phase in the nation’s long struggle with terrorism on Thursday by restricting the use of unmanned drone strikes that have been at the heart of his national security strategy and shifting control of them away from the C.I.A. to the military.

In his first major speech on counterterrorism of his second term, Mr. Obama hopes to refocus the epic conflict that has defined American priorities since the attacks of Sept. 11, 2001, and even foresees an unspecified day when the so-called war on terror might all but end, according to people briefed on White House plans.

As part of the shift in approach, the administration on Wednesday formally acknowledged for the first time that it had killed four American citizens in drone strikes outside the battlefields of Afghanistan and Iraq, arguing that its actions were justified by the danger to the United States. Mr. Obama approved providing new information to Congress and the public about the rules governing his attacks on Al Qaeda and its allies.

A new classified policy guidance signed by Mr. Obama will sharply curtail the instances when unmanned aircraft can be used to attack in places that are not overt war zones, countries like Pakistan, Yemen and Somalia. The rules will impose the same standard for strikes on foreign enemies now used only for American citizens deemed to be terrorists.

Lethal force will be used only against targets who pose “a continuing, imminent threat to Americans” and cannot feasibly be captured, Attorney General Eric H. Holder Jr. said in a letter to Congress, suggesting that threats to a partner like Afghanistan or Yemen alone would not be enough to justify being targeted.

The standard could signal an end to “signature strikes,” or attacks on groups of unknown men based only on their presumed status as members of Al Qaeda or some other enemy group — an approach that administration critics say has resulted in many civilian casualties. In effect, this appears to be a step away from the less restricted use of force allowed in war zones and toward the more limited use of force for self-defense allowed outside of armed conflict.

In the speech he will give on Thursday at the National Defense University, Mr. Obama will also renew his long-stalled effort to close the prison at Guantánamo Bay, Cuba. Officials said they would make a fresh push to transfer detainees to home countries and lift the ban on sending some back to Yemen. The president plans to reappoint a high-level State Department official to oversee the effort to reduce the prison population.

The combined actions constitute a pivot point for a president who came to office highly critical of his predecessor, George W. Bush, yet who preserved and in some cases expanded on some of the counterterrorism policies he inherited. Much as Mr. Bush did in 2006 when he acknowledged and emptied secret overseas C.I.A. prisons, Mr. Obama appears intent on countering criticism of his most controversial policies by reorienting them to meet changing conditions.

In his speech, Mr. Obama is expected to reject the notion of a perpetual war with terrorists, envisioning a day when Al Qaeda has been so incapacitated that wartime authority will end. However, because he is also institutionalizing procedures for drone strikes, it does not appear that he thinks that day has come. A Pentagon official suggested last week that the current conflict could continue for 10 to 20 years.

Yet even as he moves the counterterrorism effort to a next stage, Mr. Obama plans to offer a robust defense of a continued role for targeted killings, a policy he has generally addressed only in passing or in interviews rather than in a comprehensive speech. A White House official said he “will discuss why the use of drone strikes is necessary, legal and just, while addressing the various issues raised by our use of targeted action.”

While Mr. Obama may not explicitly announce the shift in drones from the Central Intelligence Agency in his speech, since the agency’s operations remain formally classified, the change underscores a desire by the president and his advisers to balance them with other legal and diplomatic tools. The C.I.A., which has overseen the drone war in the tribal areas of Pakistan and elsewhere, will generally cede its role to the military after a six-month transition period as forces draw down in Afghanistan, officials said.

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Daniel Klaidman of The Daily Beast reports that the White House will soon take the power to launch lethal drone strikes away from the CIA and make the program the exclusive domain of the Defense Department. Because the military and intelligence services operate under a different set of rules, the move would consolidate all drone operations under a single command and a single set of procedure. It could also (potentially) add new layers of transparency and accountability to what has become one of the government’s most controversial operations.

The shift may not change much in the real world of missile strikes and terrorist hunting, as drones will continue to be a major tool in the U.S. arsenal. However, it could signal a major shift in the legal and diplomatic basis for the program. For example, one of the most important distinctions between CIA operations and military ones is the difference between “covert” and “clandestine.” The military can keep its “clandestine” activities classified or secret—like say a SEAL team raid to kill a wanted terrorist. But if Congress or a judge asks, they can’t pretend they didn’t happen. The CIA, on the other hand, is allowed to declare certain missions to be “covert.” (Like say, sneaking American citizens out of a hostile country.) That means that, legally, they can deny that program even exists, shielding those responsible from accountability and hiding them from the public.

That extra layer of accountbility matters a lot when making life or death decisions. Currently, the CIA has the power to decide on its own if a terorist is going to be targeted, and in certain circumstances can carry out an attack without further authorization. The most notable exception is Pakistan, where the Armed Forces require presidential authorization to carry out a mission within its borders, but the CIA doesn’t.

As far back as last fall it was reported that John Brennan, who was then the President’s chief counterterrorism advisor, was already looking to consolidate drone operations under the umbrella of Pentagon, believing that the military was better suited to handle armed drone operations. He seemed to be growing more uncomfortable with the idea of the Central Intelligence Agency morphing from a spy outfit into a lethal fighting force, especially one that decides on its own who deserves the “lethal” part. Meanwhile, the Defense Department has much stricter requirements that must be met before carrying out a military operation in a foreign country, the White House and Congress have more power over generals (and their budgets) than they do secret agents, and international law and diplomacy helps to keep uniformed soliders on a tighter leash.

It’s interesting to see that even though Brennan is now in charge of the CIA he hasn’t changed his mind about dumping drones from his portfolio, and is legitimately committed to seeing the agency focus more on its spying roots. Giving the power to strike overseas solely to the president may not ease everyone’s fears about the drone program, but at least it makes it slightly easier to keep an eye on it.

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Florida housewives, a tawdry affair, and flirtatious emails. No, it’s not an update from your favorite reality show.

It’s the story that has lately dominated the headlines — the resignation of former four-star Gen. David Petraeus as head of the CIA. But the disclosure of the Petraeus affair, and all that followed, only hints at a much wider scandal in the U.S. armed forces.

Dr. Cregg Chandler, a retired Air Force chaplain who has done extensive research on military ethics, says infidelity came up as a major concern for 70 percent of the counselors he interviewed.

“Infidelity was high on the radar screen over the last years,” he said. “I saw it as a major problem, and I use the word epidemic.”

In 2012 alone, there have been several top commanders investigated or fired for sexual improprieties or bad judgment. Among them: Brig. Gen. Jeffrey Sinclair — a former deputy commander in Afghanistan — who is facing a military grand jury on charges of adultery and sexual misconduct.
But what about the spouses? How are they affected?

Two women who know about the challenges of family life in the military spoke to Rebecca Jarvis and Anthony Mason about the problem on “CBS This Morning: Saturday.”

Jacey Eckhart is an Air Force brat, Navy wife and Army mom. She’s also the Editor in Chief of SpouseBuzz.com and the author of “Homefront Club: The Hardheaded Woman’s Guide to Raising a Military Family.” Siobhan Fallon is an Army wife and author of “You Know When the Men Are Gone.”

“Military families are just like civilian families when it comes to infidelity,” said Eckhart. “We estimate about a third of all families are blighted by infidelity. And so, you’ve got to remember two-thirds of the families are not.”

Fallon said though she’s very upset by the Petraeus affair, she’s seen incredible marriages at every level in the military, and does not believe anyone is using rank as power within personal relationships

“I think everyone overwhelmingly supports Gen. Petraeus and his military career,” she said. “The chain of command and our leaders have been chosen as leaders because they are upstanding men and women… worthy of leading our soldiers into battle and making life and death decisions.”

Eckhart said she thinks it’s important to remember that fidelity is a set of behaviors that you learn over time, and the ones needed when you’re younger are different than the ones you need when you’re in your 40s.

“I think the military understands that… the people who are closest to you, you have to be faithful to,” she said. “And that starts with that number one person you have at home.”

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After years of dodging bullets, drinking martinis and indulging in espionage former operatives tell us, covertly of course, which spy films cut the mustard…

This list was compiled by several real-life former spies from the CIA, NSA, the US. State Department’s Bureau of Intelligence and Research, and more agencies — all of whom are founders or Board Members of the Long Island Spy Museum www.longislandspymuseum.org

Tinker, Tailor, Soldier, Spy (1979)

“Real-life spies love the plot focus on recruitment of assets, betrayal and subterfuge; this is the ‘bread and butter’ of spycraft,” said one former CIA officer.

Many former and existing spies relate particularly well to Smiley’s character and the duality that he represents: patriotic and capable without ego combined with that nagging suspicion that defending democracy can be a thankless job and, in the end, he will almost certainly be the last victim in the saga. There is an old saying in espionage: ‘There is nothing more dangerous than an honest man with no agenda.’ This makes Smiley incorruptible to the enemy but also makes him a long-term threat to his political masters.

Munich (2006)

Like real-life spying, the movie is slow and steady with moments of underlying tension and moments of pure ‘dynamite’ particularly when moral dilemmas present themselves. The way Munich proceeded was a lot like real-life spying. It’s not glitz and glamour and flash all the time…successful espionage is slow, methodical, careful; sometimes there’s gripping tension when plans seem to go not quite according to plan, and other times — like in Munich — moral dilemmas can turn even the best laid plans on their head. The movie is realistic in this way.

Ronin (1998)

“NOC officers do not have the protection of diplomatic immunity so when they are caught working in foreign lands, it usually results in incarceration, death or severe bodily harm,” said one Defense Intelligence Agency Spy. “Shifting loyalties and alliances are not fiction in real-world spying. It’s critical to be careful; sometimes that’s the difference between life and death.”

Spying makes strange bed-fellows and there are many cases of two opposing deep-cover operatives inserted into a situation: being forced to work together for the greater good.

39 Steps (1935)

Spies love this movie because of the unexpected twists and turns; something that is ‘par for the course’ in the world of espionage. There is an old saying used by spies all over the world – ‘It’s a great plan until the first shot is fired!’ Any self-respecting spy will tell you that adaptability is critical in the field.

Eye of the Needle

This movie happens to be a personal favorite for spies tasked with counter-intelligence. The only mission for a CI operative is to identify, deceive and mind-fuck other enemy spies. This movie epitomizes the Spy-versus-Spy battles that take place every day without the public’s knowledge.

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The two Americans who were wounded when gunmen fired on an American Embassy vehicle last week were Central Intelligence Agency employees sent as part of a multiagency effort to bolster Mexican efforts to fight drug traffickers, officials said on Tuesday.

The two operatives, who were hurt on Friday, were participating in a training program that involved the Mexican Navy. They were traveling with a Mexican Navy captain in an embassy sport utility vehicle that had diplomatic license plates, heading toward a military shooting range 35 miles south of the capital when gunmen, some or all of them from the Federal Police, attacked the vehicle, Mexican officials have said.

The Mexican Navy said Tuesday in a statement that an American was driving the vehicle and that during the attack the captain, who was handling logistics and translating for the men, remained in the back seat calling for help on his cellphone.

The men were wounded, the Navy said, when the rain of bullets managed to tear through the car’s protective armor. It was unclear if the Americans, who officials said were unarmed, were specifically targeted, if the shooting was a case of mistaken identity or if there was some other reason that the vehicle was ambushed. Mexican prosecutors have detained 12 federal police officers and have said no theory can be ruled out.

The C.I.A. declined to comment. But American officials, speaking on condition of anonymity because they were not authorized to release information, said no evidence had emerged so far that the Americans were targeted because of their affiliation.

American investigators are working with Mexican authorities to determine what happened and whether the police officers involved were corrupt.

The notion that a squad of federal police officers would attack an embassy car could be another blow to the developing trust and cooperation between American counternarcotics personnel and their Mexican partners.

Through programs like the $1.6-billion Merida Initiative, the United States has spent millions of dollars on training and equipping the federal police.

Eric Olson, an expert at the Woodrow Wilson Center’s Mexico Institute in Washington, said the shooting could only sow some doubts about the police, and at best pointed to a lack of communication among Mexico’s military and the police.

“This seems to suggest there isn’t better communication between the various elements of the Mexican government,” he said. “One fundamental issue is the lack of trust.”

In his first public comments on the shooting, President Felipe Calderón, speaking Tuesday at a security forum attended by the American ambassador, Anthony Wayne, promised a thorough investigation.

“Be it from negligence, lack of training, lack of trust, complicity, these acts cannot be permitted and they are being investigated absolutely rigorously,” Mr. Calderón said.

The presence of C.I.A. employees, and indeed all American operatives, on Mexican soil has long been a prickly subject here.

In his nearly six years in office, Mr. Calderón has allowed a much larger role for American counternarcotics operations, including the use of unarmed American drones deep in Mexican territory. C.I.A. operatives and retired American military personnel have also worked with American law enforcement agencies and the Mexican military on training and intelligence-gathering.But Mexico has ruled out allowing the Americans to carry out arrests or deploy troops on its soil, and even their limited role has provoked a political outcry over whether the nation’s sovereignty has been put in jeopardy.

Lawmakers, instigated by the left, have hauled Mexican government officials before Congress for sometimes testy hearings and after the newspaper La Jornada first reported the C.I.A. involvement on Tuesday, some politicians said they would ask for a thorough explanation of the American role here.

“It’s is time to speak clearly and for us to know what institutions are intervening in what specific way in our country in regard to security,’ said Iris Vianey Mendoza, a senator from the left-leaning Party of the Democratic Revolution.

The office of Enrique Peña-Nieto, who won Mexico’s presidential election in July and has promised to maintain close ties with American law enforcement agencies, declined to comment.

The shooting was reminiscent of an attack on American immigration and customs agents last year in which one was fatally shot and another wounded when their embassy sport utility vehicle was ambushed on a highway north of Mexico City. A Mexican man was extradited and is awaiting trial on murder charges in Washington.

This latest episode has caused Mexicans to reflect on the quality of the federal police force, which had achieved growing respect but which has been tarnished by recent corruption scandals.

“The thing that really worries me,” said Gabriel Guerra, a political analyst who has worked with the three major parties here, “is that we are seeing the unraveling of what was supposed to be the main achievement in the fight against organized crime, which was the creation of a trustworthy national police.”

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The number of U.S. government employees and contractors holding security clearances jumped to 4.86 million last year from 4.7 million the year prior, according to the 2011 Report on Security Clearance Determinations, which the Director of National Intelligence has forwarded to Congress.

That’s about a 3 percent gain over the year prior, the first year statistics became available. In other words, another 160,000 people were removed from the category of: “If we told you we’d have to kill you.”

The figures, obtained by Secrecy News, are required to be published to Congress as a result of the Intelligence Reauthorization Act of 2010. The data count those cleared for confidential, secret and top secret records.

The report (.pdf) also indicated that the numbers could have been higher. The Central Intelligence Agency denied a security clearance to 5.3 percent of the people who applied. At the National Security Agency, the number was 8 percent. The Federal Bureau of Investigation reported less than a 1 percent denial rate.

Thousands of pending security cases remain stalled. That’s because many of the linguists and specialists the intelligence community most wants “often have significant foreign associations that may take additional time to investigate and adjudicate,” according the report.

The accounting method to determine clearance numbers was not perfect, the report added. In fact, they “are likely to include some duplicate entries, despite ongoing efforts to eliminate duplicative clearance information,” the report said. “Creating a single repository to house all national security determinations is not currently feasible given the sensitivity of certain clearance information and the need for non-IC (Intelligence Community) agencies to have a repository to report determinations.”

In other words: The roster of people who are allowed to know secrets is itself so secret, it’s impossible to even assemble a single, decent list.

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Possibly as early as 2013, the US Department of Homeland Security (DHS) will be able to beam a laser at us from 164 feet (50 meters) away, analyzing the molecules of our bodies, our clothes, our luggage, whatever meal we’re digesting inside our guts, whatever gun powder residue might have clung to terrorists, whatever drugs are floating around in our urine or glommed onto the soles of our shoes, and how nervous we might be according to our adrenaline levels, all without patdowns or having to touch us at all, without us even knowing it’s happening.

Human body, courtesy of ShutterstockThe news comes from a researcher who chooses to remain anonymous.

He’s currently completing his PhD in renewable energy solutions and published the news of this impending death of privacy on Gizmodo.

Regardless of his anonymity, the researcher backs up the premise with publicly available information.

For one thing, in November 2011, the technology’s inventors were subcontracted by In-Q-Tel, an organization that defines itself as a bridge between the CIA and new technology companies, to work with DHS.

In-Q-Tel describes the technology as a “synchronized programmable laser” for use in the biomedical, industrial and defense and security communities.

The anonymous researcher writes that DHS plans to install this molecular-level scanning in airports and border crossings across the US.

The “official, stated goal” is to quickly identify explosives, dangerous chemicals, or bioweapons at a distance, he writes, and will likely be used to scan absolutely anybody and everybody:

The machine is ten million times faster—and one million times more sensitive—than any currently available system. That means that it can be used systematically on everyone passing through airport security, not just suspect or randomly sampled people.

The technology isn’t new: it’s just “millions times faster and more convenient than ever before,” the researcher writes.

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Well, now it is official. Mark Zuckerberg was not so smart after all, but just fronting for the CIA in one of the biggest Intelligence coups of all times.

But there remains one small problem, the CIA is not supposed to monitor Americans. I guess we will hear more on that soon from the lawyers once the litigation gets cranked up.

Personally I will be more interested in how this is going to effect the stock offering and shares as all Americans should own the entity that has been spying on them.

And then there are the SEC full disclosure regulations and penalties. It’s bonanza time for the lawyers.

Could the loophole the CIA used be that, ‘you aren’t being spied on if you are willingly posting everything a repressive regime would love to have on your Facebook account, with no threats, no family hostages, no dirty movies or photos that could be released?

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It’s been several years since the rumors and sightings of insect sized micro drones started popping up around the world.

Vanessa Alarcon was a college student when she attended a 2007 anti-war protest in Washington, D.C. and heard someone shout, “Oh my God, look at those.”

“I look up and I’m like, ‘What the hell is that?’” she told The Washington Post. “They looked like dragonflies or little helicopters. But I mean, those are not insects,” she continued.

A lawyer there at the time confirmed they looked like dragonflies, but that they “definitely weren’t insects”.

And he’s probably right.

In 2006 Flight International reported that the CIA had been developing micro UAVs as far back as the 1970s and had a mock-up in its Langley headquarters since 2003.

While we can go on listing roachbots, swarming nano drones, and synchronized MIT robots — private trader and former software engineer Alan Lovejoy points out that the future of nano drones could become even more unsettling.

Lovejoy found this CGI mock up of a mosquito drone equipped with the ‘ability’ to take DNA samples or possible inject objects beneath the skin.

According to Lovejoy:

Such a device could be controlled from a great distance and is equipped with a camera, microphone. It could land on you and then use its needle to take a DNA sample with the pain of a mosquito bite. Or it could inject a micro RFID tracking device under your skin.

It could land on you and stay, so that you take it with you into your home. Or it could fly into a building through a window. There are well-funded research projects working on such devices with such capabilities.

He offers some good links though his Google+ page and Ms. Smith at Network World offers up even more.

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