New Details Revealed on CIA Leak Case
By David Johnston
The New York Times
Saturday 04 February 2006
Washington - Vice President Dick Cheney's former chief of staff told prosecutors that Mr. Cheney had informed him "in an off sort of curiosity sort of fashion" in mid-June 2003 about the identity of the CIA officer at the heart of the leak case, according to a formerly secret legal opinion, parts of which were made public on Friday.
The newly released pages were part of a legal opinion written in February 2005 by Judge David S. Tatel of the United States Court of Appeals for the District of Columbia Circuit. His opinion disclosed that the former chief of staff, I. Lewis Libby Jr., acknowledged to prosecutors that he had heard directly from Mr. Cheney about the Central Intelligence Agency officer, Valerie Wilson, more than a month before her identity was first publicly disclosed on July 14, 2003, by a newspaper columnist.
"Nevertheless," Judge Tatel wrote, "Libby maintains that he was learning about Wilson's wife's identity for the first time when he spoke with NBC Washington Bureau Chief Tim Russert on July 10 or 11." Mr. Russert denied Mr. Libby's account. Ms. Wilson is married to Joseph C. Wilson IV, a former ambassador who has criticized the Bush administration's Iraq policy.
Over all, the new material amplified and provided new details on charges outlined in the October 2005 indictment against Mr. Libby. The indictment accused Mr. Libby of falsely telling investigators that he had first learned about Ms. Wilson from reporters, when he had, according to the charging document, learned of it from other government officials like Mr. Cheney.
Mr. Libby appeared in federal court in Washington on Friday for the first time in several months. A federal trial judge, Reggie B. Walton, set a calendar that means Mr. Libby's trial will not begin for at least 11 months, with jury selection to begin on Jan. 8, 2007.
Judge Walton had hoped to start the trial in the fall of 2006 but Mr. Libby's chief lawyer, Theodore V.Wells Jr., said he would be involved in another trial at that time.
Judge Tatel's comments in the formerly secret legal opinion were largely drawn from affidavits supplied by the special counsel in the case, Patrick J. Fitzgerald, that were written nearly two years ago, in August 2004. At that time, Mr. Fitzgerald was seeking to compel grand jury testimony from two reporters, Judith Miller, then a reporter for The New York Times, and Matthew Cooper, a reporter for Time magazine.
By that point, the newly disclosed pages showed, Mr. Fitzgerald had centered his inquiry on possible perjury charges against Mr. Libby, although that was not publicly known at the time. Mr. Fitzgerald had abandoned a prosecution based on a federal law that makes it a crime to disclose the identity of a covert officer at the CIA Such charges, Judge Tatel wrote, were "currently off the table for lack of evidence."
Judge Tatel wrote his opinion as part of a unanimous decision by the three-judge panel which ruled on Feb. 15, 2005, that Ms. Miller and Mr. Cooper had potentially vital evidentiary information and could not refuse to testify to the grand jury in the leak case on First Amendment grounds.
In a separate affidavit filed by Mr. Fitzgerald and disclosed Friday, the prosecutor wrote that Mr. Libby had testified that he had forgotten the conversation with Mr. Cheney when he talked to Mr. Russert. "Further according to Mr. Libby, he did not recall his conversation with the Vice President even when Russert allegedly told him about Wilson's wife's employment."
About eight pages of Judge Tatel's concurring opinion were deleted from the opinion released in 2005. After Mr. Libby's indictment, lawyers for The Wall Street Journal went to court and succeeded in obtaining the material released Friday by order of the same three-judge panel.
Not all of the previously withheld material was released. Several pages, which apparently contained information about Mr. Fitzgerald's investigation of Karl Rove, the senior White House adviser, remained under seal. Mr. Rove has not been charged, but remains under investigation although his lawyer has expressed confidence that Mr. Rove will be cleared.
The release of new material represented an important First Amendment ruling for the right of public access to court records, said Theodore J. Boutros Jr., a lawyer for The Journal. "We're pleased that the court recognized that grand jury secrecy is not absolute and that there's an important public interest in the public being able to scrutinize the basis for a judicial decision."
The newly disclosed information provides new details about other events, like a previously reported lunch on July 7, 2003, in which Mr. Libby told Ari Fleischer, then the White House press secretary, about Ms. Wilson.
In his opinion, Judge Tatel said that Mr. Fleischer said that Mr. Libby had told him that Ms. Wilson sent had her husband on a trip to Africa to examine intelligence reports indicating that Iraq had sought to buy uranium ore from Niger.
Judge Tatel wrote that Mr. Fleischer had described the lunch to prosecutors as having been "kind of weird" and had noted that Mr. Libby typically "operated in a very closed-lip fashion." Judge Tatel added: "Fleischer recalled that Libby 'added something along the lines of, you know, this is hush hush, nobody knows about this. This is on the q.t.' "
*****************************************************************
Voting system examiners in several states have reportedly
been prohibited from revealing voting system flaws to the
public due to nondisclosure agreements they signed with the
vendors.
With the future of democracy is at stake, just what agreements
were signed by examiners like Steve Freeman (CA), Brit Williams
(GA, MD, VA), Paul Craft (FL), Doug Jones (IA), and David
Jefferson (CA)?
Black Box Voting has learned that vendors have been requiring
nondisclosures to block release of information of critical importance
to the public. Secretaries of state have failed to protect their voting
system examiners, reportedly requiring administrative rules that
prevent proper analysis and evaluation of voting systems by state
examiners.
Black Box Voting has filed public records requests to obtain all
nondisclosure agreements signed by Paul Craft, David Drury,
David Jefferson, Steve Freeman, Doug Jones, Brit Williams, Merle
King, and Michael Shamos.
We have already obtained one of the Diebold nondisclosure
requirements. Diebold attempts to block everything that should
be revealed -- even if the contractor is served with a subpoena
or court order!
BLACK BOX VOTING IS INVESTIGATING THE FOLLOWING ISSUES:
1) Whether voting system examiners have been provided
with indemnification. Failure to provide indemnification allows the
vendor to sue the examiner for damages if the examiner happens
to discover or expose something harmful to the vendor.
2) Whether voting system examiners were protected by their
secretaries of state. It appears that secretaries of state have
left it to the scientists who examine voting software to negotiate
their own terms of engagement with vendors. Some scientists,
who understandably are not experts in intellectual property law,
have signed the agreements provided by vendor attorneys. These
agreements can later prove to be unduly restrictive, preventing the
examiner from revealing what he knows even to the secretary
of state.
3) Whether state voting system examiners were prohibited from
examining the testing reports provided by Ciber and Wyle, the
federal testing labs. Documents provided to Black Box Voting
by Joan Quinn, a citizen in Sacramento, Calif., indicate that
California examiner Steve Freeman may not have had access
to key portions of the federal testing reports when examining
voting systems for the state of California.
4) Whether examiners were prohibited from examining the
source code and/or testing the equipment themselves.
5) Whether examiners were prohibited from asking the vendors
follow up questions by rules or administrative procedures .
6) Whether examiners were ever prohibited by rules or administrative
procedures from communicating with others on voting system
panels or certification boards during deliberations over certification
recommendations, or during/after voting system examinations.
7) Whether examiners are ever allowed to examine escrowed
information -- source code and/or "penetration analysis"?
Black Box Voting has requested copies of the rules, escrow
procedures, and any indemnifications, nondisclosures or administrative
procedures that apply to the certification, examination and deliberation
process in Florida, Pennsylvania, Georgia, California, and Iowa.
PLEASE DO NOT LIMIT THESE IIMPORTANT INQUIRIES TO BBV EFFORTS
- Citizens are urged to gather evidence independently of Black Box
Voting, through Freedom of Information and public records requests,
to determine exactly what procedures, nondisclosures, restrictions,
rules and guidelines are in place for each state's voting system
examiners and certifiers.
- State senators and legislators, especially in the above-named
states, are urged to launch formal hearings, with subpoena power
and witnesses under oath, to investigate exactly what restrictions
were placed on voting machine examiners by vendors and
secretaries of state.
ANOTHER BREAKDOWN IN VOTER PROTECTION
Bruce Sims of San Diego, Calif. caught this problem:
According to 1990 FEC standards section 5.3, "Access Control",
voting machine manufacturers are required to provide federal
testing labs with a "penetration analysis" (hacking analysis). Did
Diebold, Sequoia and ES&S provide this to testing labs?
If so, why didn't the labs identify the massive Diebold holes
exploited by a Finnish security expert in the 2005 Black Box
Voting "Harri Hursti" projects, and by Dr. Herbert Thompson and
Black Box Voting with the Diebold GEMS central tabulator, and
by Jeremiah Akin with the Sequoia WinEDS central tabulator?
"All software (including firmware) for all voting systems SHALL
incorporate measures to prevent ... unauthorized operations by
ANY PERSON. Unauthorized operations include, but are not limited
to: MODIFICATION OF COMPILED OR INTERPRETED CODE..."
This is exactly the "unauthorized operation" that Hursti performed
in Leon County on May 26 and Dec 13 2005 in the Black Box Voting
projects. Thompson's Visual Basic GEMS hack was also an
"unauthorized operation" of the code, and the alterations in the
Sequoia WinEDS code demonstrated by Jeremiah Akin are also
"unauthorized operations."
When public officials and vendors explain to you that these hacks
are not relevant because they require inside access, note that this
FEC requirement applies to both outsiders and INSIDERS.
DID THE VENDOR EVER SUPPLY ACCURATE "PENETRATION ANALYSES?"
"The vendor shall provide a penetrationanalysis," the standards
say. Setting aside for the moment the sheer stupidity of relying
only on a profit-seeking vendors assessment of their own product
weaknesses, the Diebold memos show that Diebold knew that its
customized AccuBasic code could be altered to "do just about
anything." Therefore, unless Diebold identified this in the "penetration
analysis" it was supposed to provide to the labs, it was out of
compliance with FEC guidelines.
==============
From: Guy Lancaster
Date: Thu, 18 Nov 1999
"The 1.94w firmware does not keep a checksum on the Accu-Basic
report program stored on the memory card. It sounds like that area
has been corrupted on these but without a checksum, the Accu-Vote
doesn't recognize the fact and report the error..."
From: On Behalf Of Steve Knecht
Sent: Tuesday, February 05, 2002 9:54 AM
Subject: AccuVote Tapes Results Report
> could we get an AccuBasic Report Option that just printed out the
label and the ballots cast by precinct only for the zero and election
night report...
Reply: "We can do just about anything."
==============
So, Diebold knew that the AccuVote results reports could be
programmed to "do just about anything" and Diebold also knew
that "firmware does not keep a checksum on the Accu-Basic
report program stored on the memory card."
Did Diebold include this KNOWN information in its "penetration
analysis"?
If so, why are the testing labs (Ciber and Wyle) still in the
business of examining elections software?
If not, why is Diebold still in the elections business?
Not only is the memory card exploit findable and documented
in the public record (at least since 2003 when the Diebold
memos were released), but another "unauthorized operation,"
the use of a Visual Basic script to hack the GEMS central tabulator,
has been widely known for years. The use of the MS Access
database to perform unauthorized functions was publicly revealed
by Black Box Voting in July 2003, but was documented by Diebold
programmers back in Oct. 2001.
Aside from the memory card problems, were the GEMS penetration
points documented in the penetration test sent by Diebold to testing labs?
REGARDLESS, WHY DIDN'T STATE AND INDEPENDENT EXAMINERS
IDENTIFY THE PROBLEMS AND SPEAK UP?
Public records obtained by Joan Quinn reveal that California voting
system examiner Steve Freeman did a five-hour "security examination"
of GEMS after the exploit holes were documented publicly by Black Box
Voting -- yet he recommended certification of the system, even after a
critical protective measure for GEMS hacking was stripped out of the
Diebold central counting system.
What is in his report on this? Black Box Voting has requested a copy,
but due to the bizzaro-world nondisclosures, we believe we may be
turned down for "security" reasons (even though it was Black Box
Voting that first publicly identified the GEMS defects, on July 8, 2003!).
FEC standards:
"Such penetration analysis will be subject to strict confidentiality
and non-disclosure by the test authority. For security reasons, the
penetration analysis shall not be routinely distributed to the jurisdictions
that program elections. The penetration analysis, however, will be
part of the escrow deposit."
HOW MANY SECRETARIES OF STATE HAVE VIOLATED THEIR OWN
STATE ELECTION LAWS?
Many states have election laws that state something similar to this:
"systems be safe from 'fraud or manipulation'."
Let us examine for a moment the responsibility of secretaries of
state under their own legal responsibility to ensure that their voting
system is "safe from fraud or manipulation."
- If the FEC standards requires that the ITA-examined and
vendor-supplied "penetration analysis" be submitted into escrow,
does the secretary of state have a duty to examine the penetration
analysis?
- If a secretary of state authorizes a state examiner to look at
the system, does the secretary of state have a duty to enable said
examiner to conduct an unfettered examination, review federal
testing lab reports, including vendor's "penetration analysis" and
any testing lab comments on it?
- If so, does the secretary of state have an obligation to obtain the
report of his own state examiner?
WHY WOULD A SECRETARY OF STATE HAVE THE CONTRACTOR
NEGOTIATE/SIGN THE NDA WITH THE VENDOR, RATHER THAN THE
SEC. STATE'S OFFICE?
If a nondisclosure is used at all, would not the correct party for
the nondisclosure agreement (NDA) be the secretary of state, with
the sec. state then invoking his own NDA on the state examiner?
In other words, it seems that a strange breach of duty may have
occurred in locations where state examiners were forced into
NDAs directly with vendors. Because the Secretary of State has
a fiduciary duty to the taxpayers to ensure that voting systems are
safe from manipulation, the examiner must be given free rein to
disclose any and all findings with the secretary of state.
Thus, any NDA should be between the secretary of state and the
vendor, with an employment or consultant's agreement executed
between the secretary of state and the examiner. It is the secretary
of state's duty to protect his own examiner from retaliation from
the vendor.
Instead, it appears, the secretaries of state have stepped aside,
have failed to provide examiners with the materials and access to
the voting system reasonably required to perform an examination,
have apparently failed to provide examiners with access to the
penetration analysis, have failed to protect examiners from legal
retaliation by the vendor, and therefore have failed to obtain the
necessary information to "ensure that the system is safe from
manipulation."
No comments:
Post a Comment