By Attorney General Eric Holder.
EXECUTIVE SUMMARY.
The recent controversy surrounding Attorney General Eric Holder, Jr. and his testimony before the House Judiciary Committee is the result of deliberate efforts by Mr. Holder to avoid answering for questionable decisions and actions in the performance of his official duties.
In particular, Mr. Holder’s testimony was an attempt, through verbal gymnastics, to circumvent proper congressional oversight and accountability by distorting the truth about the Justice Department’s investigative techniques targeting journalists.
Mr. Holder assured the Committee, in sworn testimony, that “[w]ith regard to potential prosecution of the press for the disclosure of material, that is not something that I have ever been involved, heard of, or would think would be a wise policy.” Yet, as the Committee learned after its May 15, 2013, hearing, in 2010, the Justice Department obtained a search warrant for Fox News Chief Washington Correspondent James Rosen’s emails by swearing to a federal court that Mr. Rosen was a co-conspirator in a national security leak investigation.
When questioned by the Committee about the obvious clash between his testimony and the truth, Mr. Holder refused to answer questions from the Committee. Finally, after weeks of delay, Mr. Holder responded to the Committee’s inquiry. However, Mr. Holder’s responses do not ameliorate our concern that his testimony to the Committee was deceptive and misleading.
We take little comfort in Mr. Holder’s assurances to us now that the Department never intended to prosecute Mr. Rosen when it labeled him a criminal suspect in 2010. Tarnishing a journalist as a suspect in a national security investigation is not something that should be taken lightly. Espionage is a serious federal crime, punishable by up to a decade in prison. In essence, the Justice
Department dangled Mr. Rosen over a cliff. But the American people were then assured by Mr. Holder that this was appropriate because there was never a potential of him falling to his doom.
In response to the nationwide disapproval of his tactics, Mr. Holder has proposed new rules and regulations to control the Justice Department’s dealings with the media. While some of these proposals are welcome, the Committee is dismayed that Mr. Holder suggests that Congress change the law to stop him from continuing to do what he has done in the past – distort federal law to fit his investigative prerogatives.
Mr. Holder proposes that Congress amend the Privacy Protection Act of 1980, a law intended to prohibit the government from searching a journalist’s records unless the journalist is a criminal suspect. Mr. Holder maintains that the law contains a loophole that permits the government to do what it did in the Rosen case. But there is no such loophole. If Mr. Holder believes that the law should not permit the Justice Department to do what it did, he never should have authorized the search warrant in the first place.
The Committee believes that Mr. Holder is trying to deflect responsibility for his actions by presenting a distorted reading of the law. Changing the law is not the solution for misuse of the law.
The Committee finds that Mr. Holder’s sworn testimony in the Rosen matter was deceptive and misleading. No amount of law-making can restore credibility and professionalism to the Justice Department in the wake of these revelations. The only way to achieve this goal is through an improvement in the quality of leadership at the Justice Department.
1. THE JUSTICE DEPARTMENT’S INVESTIGATIONS OF NATIONAL SECURITY LEAKS
Since the WikiLeaks case in July 2010, a series of significant and highly-damaging national security leaks have occurred – including, most notably, the June 2013 disclosure of certain National Security Agency (NSA) programs by government contractor Edward Snowden.
The Obama Administration is credited with initiating more national security leak investigations than any previous administration. While this may be true, it is certainly also true that the increase in national security leak investigations is directly proportional to an increase in national security leaks in the last four and a half years.
Beginning with the raid that killed Osama bin Laden, observers have noticed a marked increase in the amount and severity of leaked information Although laudable, the fact that the Obama Administration has initiated more national security leak investigations than any previous administration is in fact a necessary response to the high rate of leaks.
To be sure, Attorney General Eric Holder, Jr., in describing the 2012 leak of a Yemeni bomb plot, stated: “I have been a prosecutor since 1976 and I have to say that this is among, if not the most serious, it is within the top two or three most serious leaks that I have ever seen. It put the American people at risk, and that is not hyperbole. It put the American people at risk. And trying to determine who was responsible for that I think required very aggressive action.”
FBI Director Robert Mueller, in testimony before the Senate Judiciary Committee on May 16, 2012, said “[l]eaks such as this have . . . a huge impact on our ability to do our business, not just on a particular source and the threat to the particular source, but your ability to recruit sources is severely hampered . . . . In cases such as this, the relationship with your counterparts overseas are damaged and which means that an inhibition in the willingness of others to share information with us where they don’t think that information will remain secure.
So it also has some long-term effects, which is why it is so important to make certain that the persons who are responsible for the leak are brought to justice.”
A. WikiLeaks
Founded in 2006, WikiLeaks.org describes itself as a “public service designed to protect whistle-blowers, journalists and activists who have sensitive materials to communicate to the public.” Arguing that “[p]rincipled leaking has changed the course of history for the better,”Wikileaks states that its purpose is to promote transparency in government and fight corporate fraud by publishing information that governments or corporations would prefer to keep secret,obtained from sources in person, by means of postal drops, and by using “cutting-edge cryptographic technologies” to receive material electronically
WikiLeaks obtained more than 91,000 secret U.S. military reports related to the war in Afghanistan and posted the majority of them, unredacted, on its website in late July 2010, after first alerting the New York Times and two foreign newspapers, the Guardian and Der Spiegel, about the pending disclosure.
U.S. military officials charged Army Private Bradley Manning for offenses related to his disclosure of documents to WikiLeaks. The most serious charge, aiding the enemy in violation of UCMJ Article 104, is a capital offense, but prosecutors reportedly said they did not intend to seek the death penalty. On February 28, 2013, Private Manning pleaded guilty in a military courts-martial to ten counts related to his unauthorized disclosure to WikiLeaks.
Julian Assange, the founder of WikiLeaks, is an Australian citizen who has resided in several countries in recent years. On November 20, 2010, Sweden issued an arrest warrant for Mr. Assange on allegations of sexual abuse by two women. INTERPOL later issued a red notice seeking Mr. Assange’s arrest on the Swedish warrant.8 On December 7, 2010, Mr. Assange, who was believed to be in England, surrendered himself to British authorities at Scotland Yard.9 He was held in a British jail pending extradition to Sweden until December 14, 2010, when a British judge released Mr. Assange on bail.
The judge placed conditions on Mr. Assange’s release, including that he surrender his passport, abide by a curfew, and wear an electronic monitoring device.
Mr. Assange challenged his extradition to Sweden, believing that Swedish authorities would extradite him to the United States.12 After a two-year legal battle, the Supreme Court of the United Kingdom dismissed his appeal against enforcement of the Swedish warrant.13 Mr. Assange failed to surrender to his bail, and was designated as an absconder by British authorities.
Several individuals who had posted significant funds for Mr. Assange’s release had those funds seized by the courts. Mr. Assange took refuge in the Ecuadorian embassy on June 19, 2012.16 In August, 2012, the Ecuadorian foreign ministry said the country had decided to grant asylum because Sweden could not guarantee Mr. Assange would not be extradited from there to the United States.
British authorities have stated that they will not grant Mr. Assange safe passage out of the embassy. Britain’s Foreign Secretary has said that if Mr. Assange steps foot outside the embassy, he will be arrested.18 Police officers are stationed outside and in the lobby around the clock, in case he attempts to leave.19 London police said the cost of the embassy operation had reached nearly $6 million at the end of May 2013.
Mr. Assange remains at the Ecuadorian embassy. He has indicated that he will not leave the embassy even if Sweden drops its extradition request, because he fears being extradited to the United States. According to numerous media reports, there exists a sealed U.S. indictment of Mr. Assange.
B. Stuxnet
The Stuxnet worm, which was first reported in June 2010 by a security firm in Belarus, appears to be the first malicious software (malware) designed specifically to attack a particular type of computer-assisted industrial control system (ICS): one that controls nuclear plants, whether for power or uranium enrichment.23 The malware attacks and disrupts a Microsoft Windows-based application that is employed by a particular ICS produced by the German company Siemens.
The worm can be spread through an air-gapped network by a removable device, such as a thumb drive, and possibly through computers connected to the Internet, and it is often capable of remaining hidden from detection. It is difficult to determine the geographic origin of the malware, as cyber attackers often employ sophisticated methods such as peer-topeer networking or spoofing IP addresses to obviate attribution. Likewise, malware placed on a removable device may contain no signatures that would identify its author.
Iran has apparently suffered the most attacks by the Stuxnet worm and, as noted, may well have been its main target. A September 2010 study by Symantec argued that the “concentration of infections in Iran likely indicates that this was the initial target for infections and was where infections were initially seeded.”25 As of September 25, 2010, Iran had identified “the IP addresses of 30,000 industrial computer systems” that had been infected by Stuxnet, according to Mahmoud Liaii, director of the Information Technology Council of Iran’s Industries and Mines Ministry, who argued that the virus “is designed to transfer data about production lines from our industrial plants” to locations outside of Iran.
On June 1, 2012, the New York Times reported that “President Obama secretly ordered increasingly sophisticated attacks on the computer systems that run Iran’s main nuclear enrichment facilities, significantly expanding America’s first sustained use of cyberweapons [sic] [.]”27 The report included graphics that detailed how the United States inserted computer malware into Iran, as well as other highly-sensitive facts, including the code name for the operation and a detailed description of a White House Situation Room meeting.
The article claimed its “account of the American and Israeli effort to undermine the Iranian nuclear program is based on interviews over the past 18 months with current and former American, European and Israeli officials involved in the program, as well as a range of outside experts. None would allow their names to be used because the effort remains highly classified, and parts of it continue to this day.”
That same month, the Washington Post reported that the United States had collaborated with Israel to develop another “computer virus nicknamed Flame that collected intelligence in preparation for cyber-sabotage aimed at slowing Iran’s ability to develop a nuclear weapon.”
On June 8, 2012, Mr. Holder tasked Mr. Rod J. Rosenstein, the U.S. Attorney for the District of Maryland, to lead the investigation into the Stuxnet leak. The investigation has recently focused on retired Marine General James Cartwright, the former vice chairman of the Joint Chiefs of Staff, as a possible source of the leaked information regarding Stuxnet.31 To date, no charges have been filed.
C. North Korean nuclear testing
On June 11, 2009, FOX News published an article written by its Chief Washington Correspondent James Rosen (the “Rosen Article”) regarding nuclear testing in North Korea.
The Rosen Article allegedly contained “United States national defense information… that was classified TOP SECRET/SPECIAL COMPARTMENTED INFORMATION (TS/SCI)” regarding four planned North Korean responses to a United Nations Security Council resolution condemning the North Koreans for recent nuclear and ballistic missile tests.
The FBI subsequently initiated an investigation “to determine the source(s) of the unauthorized disclosure.” That investigation revealed that the information in the Rosen Article “was first made available to a limited number of Intelligence Community members in an intelligence report (the ‘Intelligence Report’) that was electronically disseminated… on the morning of the date of publication of the [Rosen Article].”
The classified information database containing the Intelligence Report warned all users seeking access to the database that “[n]one of the intelligence contained in this system may be discussed or shared with individuals who are not authorized to receive it.”
In addition, “the Intelligence Report was clearly marked TS/SCI.”38The investigation further revealed that 96 individuals accessed the Intelligence Report on June 11, 2009, but only one of those 96 individuals, Stephen Jin-Woo Kim, also had contact with Mr. Rosen on that same day.39 Mr.Kim “is a Lawrence Livermore National Laboratory employee who was on detail to the Department of State’s Bureau of Verification, Compliance, and Implementation (VCI) at the time of the publication” of the Rosen Article.
As a government employee with a security clearance, Mr. Kim executed multiple SF 312 Classified Information Non-Disclosure Agreements (NDAs) with the Government.41 NDAs are legallybinding agreements that notify the individual with a security clearance that “unauthorized disclosure of classified information can lead to criminal prosecution.
To Continue reading this report: http://cryptome.org/2013/08/journalists-criminals.pdf
