Raw Versus Cooked: Could NSC Monitor FBI’s Investigation?

Multiple people,including Bart Gellman and Josh Marshall, are now arguing that the reason Ezra Cohen-Watnick and Michael Ellis found intercepts involving Trump’s people is that they were monitoring FBI’s investigation of the investigation.

I certainly think the Trump people would like to do that — and would be willing to stoop to that. I even believe that the response to the Russian hack last year had some counterintelligence problems, though probably not on the FBI side.

But there are some details that may limit how much the NSC can monitor the investigation.

First, Devin Nunes has always been very clear: the intercepts he was shown have nothing to do with Russia. That’s not, itself, determinative. After all, Cohen-Watnick and Ellis might have found a bunch of Russian intercepts, but only shared the non-Russian ones so Nunes could make a stink without being accused of endangering the investigation. Also, it’s possible that intercepts involving other countries — most notably Turkey, but there are other countries that might be even more interesting, including Ukraine or Syria — would impact any Russian investigation.

Also note that among the many things Nunes appears not to understand about surveillance is that there are two ways an American’s name can be visible outside the circle of analysts doing the initial review of them: their names can be put into finished intelligence reports that get circulated more broadly, with customers asking to have the name unmasked after the fact. Alternately, their names can be found off of subsequent searches of raw data. At the NSA and CIA, searches for US person content are somewhat controlled. At FBI they are not only not controlled, but they are routine even for criminal investigations. So if, say, General Flynn (or Paul Manafort) were under investigation for failing to register as a foreign agent, the FBI would routinely search their database of raw FISA material on his name. (These are the “back door searches” Ron Wyden has been screaming about for years, concerns which people like Devin Nunes have previously dismissed on national security grounds.) And we have every reason to believe that counterintelligence intercepts of Russians in the US are among the raw feeds that the FBI gets. So if Flynn had conversations with Russians (or Turks) in the US, we should assume that FBI saw them as a routine matter if Flynn became the subject of an investigation at all. We should also assume that the FBI did a search on every Sergey Kislyak intercept in their possession, so they will have read everything that got picked up, including all recorded calls with Trump aides.

On March 15, the House Intelligence Committee asked the NSA, CIA, and FBI for information on unmasking. I don’t believe that request asked about access to US person names on subsequent searches or raw material. Furthermore, at least as of last week, the FBI was not rushing to comply with that request. As I noted after the Jim Comey hearing before HPSCI, none of the Republicans concerned about these issues seemed to have any basic clue about FBI’s searches on raw data. If Nunes doesn’t know (and he appears not to), it’s unlikely Ellis knows, who was until this month Nunes’ aide.

But there’s one other thing that may prevent NSC from obtaining information about the investigation: FBI sometimes uses what are called “ad hoc databases” that include raw FISA data (and probably, post EO 12333 sharing rule changes, raw EO 12333 data) tied to particular investigations. It’s unclear what conditions might necessitate the use of an ad hoc database (see page 25ff for a discussion of them), but if security concerns would encourage their use, it would be likely to have one here, an investigation which Comey described as being so sensitive he delayed briefing the Gang of Four. Ad hoc databases are restricted to those working on investigations, and include specific records of those authorized to access the database. So if FBI were using an ad hoc database for this investigation, it would be even harder for the NSC to learn what they were looking at.

If the FBI’s investigation relies on raw intelligence — and it would be unfathomable that it does not, because it would probably receive the raw FISA data tied to such an investigation routinely, and EO 12333 sharing rules specifically envision the sharing of raw data associated with counterintelligence investigations — then the NSC’s access to finished intelligence reports would provide little insight into the investigation (Nunes was a bit unclear on whether that’s what he was looking at, but the entire premise of his complaints is that these were finished reports).

But while we’re worrying about whether and how Trump would monitor an investigation into his aides, remember that in 2002, Jay Bybee wrote a memo authorizing the sharing of grand jury information with the President and his close advisors including for counterintelligence investigations.

In addition, the Patriot Act recently amended 6(e) and Title III specifically to provide that matters involving foreign intelligence or counterintelligence or foreign intelligence information may be disclosed by any attorney for the government (and in the case of Title III, also by an investigative or law enforcement officer) to certain federal officials in order to assist those officials in carrying out their duties. Federal officials who are included within these provisions may include, for example, the President, attorneys within the White House Counsel’s Office, the President’s Chief of Staff, the National Security Advisor, and officials within the Central Intelligence Agency and the Department of Defense.

[snip]

Although the new provision in Rule 6(e) permitting disclosure also requires that any disclosures be reported to the district court responsible for supervising the grand jury, we conclude that disclosures made to the President fall outside the scope of the reporting requirement contained in that amendment, as do related subsequent disclosures made to other officials on the President’s behalf.

In other words, Trump could demand that he — or his National Security Advisor! — get information on any grand jury investigations, including those covering counterintelligence cases. And no judge would be given notice of that.

With Jeff Sessions’ recusal, that’s far less likely to happen than it might have been. But understand that the Executive Branch believes that the President can learn about the happenings in grand jury investigations of the sort that might target his aides.

Update: additional details have been added to this post after it was first posted.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

16 replies
  1. SpaceLifeForm says:

    The “Patriot Act’.
    That would be the one rammed thru congress that none had time to read and understand.

    DOD and CIA, but not NSA or FBI?

    9-11 was and is all about fascism.

    • PeasantParty says:

      Agreed!   I think the Patriot Act needs to be dismantled, along with the current spy systems.  They all need to be refurbished, redone, re-commissioned.

      Plus, Congress should not vote on ANY bill that has not been read and thoroughly vetted, or without input from citizens.  I’m sick to death of them voting for the Donor Class wishes, instead of what is best for the country as a whole.  And the Intell Agencies involving themselves in political warfare of this country MUST END!

       

      • lefty665 says:

        You got it!

        Remember too that the anthrax letters had the effect of stampeding the Dems into voting for the Patriot Act. That unsolved mystery fits in the puzzle somewhere.

  2. scribe says:

    Actually, it’s even a little broader than that, EW. 6(e) grand jury material could easily, and likely would, include not only the existence of a grand jury investigation but also the actual testimony and the documentary (or other) evidence both presented to the grand jurors and not presented to them but held back by the government attorneys appearing before the GJ.
    .
    So, in this new post-PATRIOT world, the President (and his selected minions) would get to sit in on the grand jury and know what they know. Without a judge knowing.
    .
    Just going back into history (and this would have to be timelined out), I have to wonder whether that facility – knowing what the GJ knows and/or what the wiretaps showed – helped fit that frame so neatly around Blago’s mug circa 2009. Recall, the presentation coming out of the Obama-Rahm-Greg Craig (then WH counsel! but left immediately thereafter….) circle re who said or meant what relative to Blago balking on appointing Valerie Jarrett to Obama’s senate seat, and all the other raindrops of Chicago politics through which O and Rahm so neatly danced, seemed very artfully crafted. Too artfully crafted to have been accidental.

    I’ve always thought there was a bit of seeing the other guys’ cards going on there. OF course, under this PATRIOT provision, it’s likely Fitz never would have been read in on the WH sitting in on the GJ.

    Have to timeline that out.

    • SpaceLifeForm says:

      Perhaps, the easiest solution to that problem is to make sure no Grand Jury is convened in the first place.

      In fact, that probably has happened many times. I.E., do not tip your hand when there are bigger fish to fry.

  3. SpaceLifeForm says:

    OT: Schiff views the alleged Nunes docs.
    Senate wants them where they belong (in a SCIF). It appears they may not really be secured, which means that what Schiff was able to review may not be all that Nunes saw. Also we are missing chain of custody and pedigree. The congressional IC committees should not even have to go WH for this. As far as I can conclude, the docs must be considered untrustable, especially if they were not reviewed in the Eisenhower SCIF. Note that Schiff does not mention *where* he reviewed them. In fact, by using the word ‘represented’, I suspect he has doubts to pedigree. And if Senate wants them ‘sent’, that impies they are not available online thru any secure SCIF, which again raises questions about their pedigree.

    http://www.politico.com/story/2017/03/adam-schiff-white-house-intelligence-236761

    “It was represented to me that these are precisely the same materials that were provided to the Chairman over a week ago,” Schiff said. “Nothing I could see today warranted a departure from the normal review procedures, and these materials should now be provided to the full membership of both committees.”

    The California Democrat added, “The White House has yet to explain why senior White House staff apparently shared these materials with but one member of either committee, only for their contents to be briefed back to the White House.”

    On Thursday, the White House invited the chairmen and ranking members of the House and Senate intelligence committees to come view the documents. The Senate Intelligence panel is asking the White House to send the documents instead to a secure facility at the Capitol.

    [Interesting spin on events follows]

    https://www.google.com/amp/www.redstate.com/streiff/2017/04/01/adam-schiff-goes-silent-reviewing-nunes-documents/amp/

    The White House could not have given them to the committee because, as the Fox News report details, the White House didn’t have the documents until a leaker provided Nunes with a list of document numbers, Nunes was stonewalled by the intelligence community, and made his own arrangements to view the documents.

    [Except that is not what Nunes said. He said he reviewed the docs and *copied down* the document numbers]

    • SpaceLifeForm says:

      Backlinks. I pointed out a few holes in Nunes story. It was the bloomberg link that Marcy had that mentioned the copying. Now, to be totally accurate, it was not a direct quote from Nunes, but it sure quacks like a duck.

      https://www.emptywheel.net/2017/03/27/did-devin-nunes-just-reveal-nsc-is-monitoring-agency-response-to-congress/

      https://www.bloomberg.com/view/articles/2017-03-27/devin-nunes-explains-his-white-house-visit

      In this case, Nunes had been hearing for more than a month about intelligence reports that included details on the Trump transition team, and had been trying to view them himself. He told me that when he finally saw the documents last Tuesday evening, he made sure to copy down their identifying numbers so he could request access to them formally for the rest of the committee.

      [Hearing about intel reports for more than a month that are only available at WH? Seriously? Then what is the point of copying down the identifying numbers in the first place? If none of Gang of Eight can even see them, why have the identifying numbers? Why is this ‘intel’ only at WH? WTF makes them so special? This is antithetical to US Constitution and separation of powers.]

      [And did fox news really confirm it was a leaker? If Nunes said ‘more than a month’, then someone was leaking something, but the identifying numbers was probably not it]

    • SpaceLifeForm says:

      Bad spin. Hey media, you have to stop pulling this crap if you want any credibility. It *MUST* stop. You cannot quote people out of context.

      What Schiff actually said:

      “It was represented to me that these are precisely the same materials that were provided to the Chairman over a week ago,” Schiff said.

      Here it taken out of context to mislead the reader into reaching a different conclusion.

      https://www.washingtonpost.com/politics/us-ambassador-says-no-question-russia-meddled-in-election/2017/04/02/be180b42-17a4-11e7-8598-9a99da559f9e_story.html

      Rep. Adam Schiff, the top Democrat on the panel, went to the White House on Friday to view materials that he said were “precisely the same.”

      [No, he said that the materials were ‘represented’ to be the same]

  4. greengiant says:

    SLF: The “identification numbers” is the recent saw in the story that non FBI Obama intelligence official hand delivered “identification numbers” to the intelligence committees. Thinking this is Nunes and TeamTrump tying the knots in their Obama did it storyline, along with the “unmasking” terminology used previously. Here is Foxnews/Breitbart repost http://www.breitbart.com/big-government/2017/03/31/fox-news-senior-obama-intelligence-official-unmasked-trump-associates/ which is in response to March 1, NYTimes https://www.nytimes.com/2017/03/01/us/politics/obama-trump-russia-election-hacking.html, The NYTimes article shaded White House officials, otherwise Brennan would have been on the top of my list.
    So Nunes had the “identification numbers” in January, but could not use them until March? Hmmm.

    • SpaceLifeForm says:

      Thanks for link. But it still points to spin.
      In fact, it is not proven *AT ALL*. The “Old Executive Office Building” is in fact, the Eisenhower SCIF today. The problem Nunes has is that there is actually *NO EVIDENCE* that he was actually inside that SCIF. NONE.
      (to be fair, there is no evidence that Schiff was in the Eisenhower SCIF yesterday either.)
      But multiple spin stories at this point, and conflicting statements, are now pointing to a coverup of what happened when Nunes took those Uber trips. Things are not adding up.

      “The sources also told Housley that Nunes learned about the surveillance and the unmasking in January, before Trump entered the White House, but members of the intelligence community have been uncooperative as the chairman searched for a SCIF, where he could conduct his own deep dive into their portent. Finally, he was able to secure use of the White House SCIF inside the Old Executive Office Building, on the White House grounds, but not in the “White House.”

    • SpaceLifeForm says:

      My bet was that he was in WH, not the Eisenhower SCIF. Procedures not followed.
      And I bet that Schiff can now confirm.

  5. GKJames says:

    Not sure the NSC would need to go to such lengths. If 2016 showed us anything it was that the FBI plays politics just fine. Reports that the Bureau’s NY crew insisted that Trump be president suggest that it wouldn’t be a stretch to suspect that agents would leak information to the NSC merely by being asked.

  6. SpaceLifeForm says:

    OT: Hypocrisy

    https://www.google.com/amp/www.independent.co.uk/news/world/americas/us-politics/michael-flynn-donald-trump-immunity-flipped-russia-interviewed-fbi-former-aide-crime-putin-latest-a7659306.html%3famp

    Michael Flynn: Donald Trump’s former aide said seeking immunity ‘means you’ve probably committed a crime’

    Clip of old interview resurfaces amid gathering storm around sacked national security adviser

    #UnfitForOffice Tweets:

    https://mobile.twitter.com/realdonaldtrump/status/847766558520856578

    Mike Flynn should ask for immunity in that this is a witch hunt (excuse for big election loss), by media & Dems, of historic proportion!

    https://www.google.com/amp/www.cbsnews.com/amp/news/pressure-builds-for-michael-flynn-to-testify-without-immunity/

    Even some Republicans like Rep. Jason Chaffetz of Utah, the chairman of the House Oversight Committee, are puzzled by Flynn’s request for protection from prosecution.

    “Well, it doesn’t look good,” Chaffetz told Fox News on Friday. “I don’t know — the witch hunt, I don’t buy that either. We’re just trying to get to the facts.”

    “The president is very clear that he wants Mike Flynn to go and be completely open and transparent with the committee and whatever it takes to do that he is supportive of,” Spicer replied.

    [Spicer not long for job]

    “When you are given immunity that means you’ve probably committed a crime,” Flynn said on NBC’s “Meet the Press” in September.

    “If you’re not guilty of a crime, what do you need immunity for?” Mr. Trump said at a rally the next day.

    • wayoutwest says:

      Flynn knows that the Clintonites view anyone, who doesn’t foam at the mouth about Putin,  has spoken to any Russian or has worked for and supported Trump, as some type of criminal. This leaves him in the uncomfortable position of demanding immunity not for a crime he has committed but as a shield from the crazed Clintonites  and some trumped up charges of witchery.

  7. harpie says:

    o/t wrt: Flint: National Resources Defense Council; 3/28/17

    Agreement Reached in Flint Requiring Lead Pipe Removal and Safer Water 

    A lawsuit brought by Flint citizens has ended in a court-ordered agreement that will force removal of the lead pipes at the heart of the city’s water crisis. While the agreement does not provide all the justice Flint residents deserve, we hope it will make the tap water safer and help the community begin to recover from the crisis. Additional details of the agreement are explained in this fact sheet.

     

     

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