I’ve been home from Europe for less than a day and already I’m thinking of sporting a neck collar for the whiplash I’ve gotten watching the wildly varying Jim Comey opinions.

I’m speaking, of course, of the response to Jim Comey’s highly unusual announcement to sixteen Chairs and Ranking Members of congressional committees (at least some of which Comey did not testify to) that the investigative team — presumably on the Clinton case — briefed him Thursday that FBI discovered additional emails in an unrelated case — now known to be the investigation into Anthony Weiner allegedly sexting a 15 year old — and he approved their request to take the steps necessary to be able to review those emails.

Effectively, the Weiner investigators, in reviewing the content from devices seized in that investigation, found emails from Huma Abedin, told the Hillary investigative team, and they’re now obtaining a warrant to be able to review those emails.

So of course the Republicans that had been claiming Comey had corruptly fixed the investigation for Hillary immediately started proclaiming his valor and Democrats that had been pointing confidently to his exoneration of Hillary immediately resumed their criticism of his highly unusual statements on this investigation. Make up your minds, people!

For the record, I think his initial, completely inappropriate statements made this inevitable. He excuses Friday’s statement as formally correcting the record of his testimony. The claim is undermined by the fact that not all recipients of the letter had him testify. But I think once you start the process of blabbing about investigations, more blabbing likely follows. I don’t mean to excuse this disclosure, but the real sin comes in the first one, which was totally inappropriate by any measure. I’m also very unsympathetic with the claim —  persistently offered by people who otherwise cheer Comey — that he released his initial statement to help Loretta Lynch out of the jam created by her inappropriate meeting with Bill Clinton; I think those explanations stem from a willful blindness about what a self-righteous moralist Comey is.

Of course I’ve been critical of Comey since long before it was cool (and our late great commenter Mary Perdue was critical years before that).

But I’d like to take a step back and talk about what this says about our judicial system.

Jim Comey doesn’t play by the rules

Jamie Gorelick (who worked with Comey when she was in DOJ) and Larry Thompson (who worked with Comey when Comey was US Attorney and he was Deputy Attorney General, until Comey replaced him) wrote a scathing piece attacking Comey for violating the long-standing prohibition on doing anything in an investigation pertaining to a political candidate in the 60 days leading up to an election. The op-ed insinuates that Comey is a “self-aggrandizing crusader[] on [a] high horse” before it goes on to slam him for making himself the judge on both the case and Hillary’s actions.

James B. Comey, put himself enthusiastically forward as the arbiter of not only whether to prosecute a criminal case — which is not the job of the FBI — but also best practices in the handling of email and other matters. Now, he has chosen personally to restrike the balance between transparency and fairness, departing from the department’s traditions. As former deputy attorney general George Terwilliger aptly put it, “There’s a difference between being independent and flying solo.”

But the real meat is that there’s a rule against statements like the one Comey made, and Comey broke it.

Decades ago, the department decided that in the 60-day period before an election, the balance should be struck against even returning indictments involving individuals running for office, as well as against the disclosure of any investigative steps. The reasoning was that, however important it might be for Justice to do its job, and however important it might be for the public to know what Justice knows, because such allegations could not be adjudicated, such actions or disclosures risked undermining the political process. A memorandum reflecting this choice has been issued every four years by multiple attorneys general for a very long time, including in 2016.

If Comey is willing to break this rule in such a high profile case, then what other rules is he breaking? What other judgements has Comey made himself arbiter of? Particularly given Comey’s persistent discussion of FBI’s work in terms of “good guys” and “bad guys” — as opposed to criminal behavior — that seems a really pertinent question.

As with James Clapper, Loretta Lynch can’t control Comey

Gorelick (who has been suggested among potential Clinton appointees) and Thompson go easier on Lynch, however, noting that she didn’t order him to stand down here, but ultimately blaming Comey for needing to be ordered.

Attorney General Loretta E. Lynch — nominally Comey’s boss — has apparently been satisfied with advising Comey but not ordering him to abide by the rules. She, no doubt, did not want to override the FBI director in such a highly political matter, but she should not have needed to. He should have abided by the policy on his own.

But since John Cornyn confronted Lynch in March about who would make decisions in this case — “Everyone in the Department of Justice works for me, including the FBI, sir,” Lynch forcefully reminded Cornyn — it has been clear that there’s a lot more tension than the org chart would suggest there should be.

The NYT provides more details on how much tension there is.

The day before the F.B.I. director, James B. Comey, sent a letter to Congress announcing that new evidence had been discovered that might be related to the completed Hillary Clinton email investigation, the Justice Department strongly discouraged the step and told him that he would be breaking with longstanding policy, three law enforcement officials said on Saturday.

Senior Justice Department officials did not move to stop him from sending the letter, officials said, but they did everything short of it, pointing to policies against talking about current criminal investigations or being seen as meddling in elections.

And it’s not just Lynch that has problems managing FBI.

In a response to a question from me in 2014 (after 56:00), Bob Litt explained that FBI’s dual role creates “a whole lot of complications” and went on to admit that the office of Director of National Intelligence — which is supposed to oversee the intelligence community — doesn’t oversee the FBI as directly.

Because FBI is part of the Department of Justice, I don’t have the same visibility into oversight there than I do with respect to the NSA, but the problems are much more complicated because of the dual functions of the FBI.

Litt said something similar to me in May when we discussed why FBI can continue to present bogus numbers in its legally mandated NSL reporting.

Now these are separate issues (though the Clinton investigation is, after all, a national security investigation into whether she or her aides mishandled classified information). But if neither the DNI nor the AG really has control over the FBI Director, it creates a real void of accountability that has repercussions for a whole lot of issues and, more importantly, people who don’t have the visibility or power of Hillary Clinton.

The FBI breaks the rules all the time by leaking like a sieve

Underlying this entire controversy is another rule that DOJ and FBI claim to abide by but don’t, at all: FBI is not supposed to reveal details of ongoing investigations.

Indeed, according to the NYT, Comey pointed to the certainty that this would leak to justify his Friday letter.

But although Mr. Comey told Congress this summer that the Clinton investigation was complete, he believed that if word of the new emails leaked out — and it was sure to leak out, he concluded — he risked being accused of misleading Congress and the public ahead of an election, colleagues said.

Yet the US Attorney’s Manual, starting with this language on prejudicial information and continuing into several more clauses, makes it clear that these kinds of leaks are impermissible.

At no time shall any component or personnel of the Department of Justice furnish any statement or information that he or she knows or reasonably should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding.

Comey, the boss of all the FBI Agents investigating this case, had another alternative, one he should have exercised months ago when it was clear those investigating this case were leaking promiscuously: demand that they shut up, conduct investigations of who was leaking, and discipline those who were doing so. Those leaks were already affecting election year concerns, but there has been little commentary about how they, too, break DOJ rules.

But instead of trying to get FBI Agents to follow DOJ guidelines, Comey instead decided to violate them himself.

Again, that’s absolutely toxic when discussing an investigation that might affect the presidential election, but FBI’s habitual blabbing is equally toxic for a bunch of less powerful people whose investigative details get leaked by the FBI all the time.

[Update: Jeffrey Toobin addresses the role of leaks more generally here, though he seems to forget that the Hillary investigation is technically a national security investigation. I think it’s important to remember that, especially given Hillary’s campaign focus on why FBI isn’t leaking about the investigation into Trump’s ties to Russia, which would also be a national security investigation.]

Warrantless back door searches do tremendous amounts of damage

Finally, think about the circumstances of the emails behind this latest disclosure.

Reports are currently unclear how much the FBI knows about these emails. The NYT describes that the FBI seized multiple devices in conjunction with the Weiner investigation, including the laptop on which they found these emails.

On Oct. 3, F.B.I. agents seized several electronic devices from Mr. Weiner: a laptop, his iPhone and an iPad that was in large measure used by his 4-year-old son to watch cartoons, a person with knowledge of the matter said. Days later, F.B.I. agents also confiscated a Wi-Fi router that could identify any other devices that had been used, the person said.

While searching the laptop, the agents discovered the existence of tens of thousands of emails, some of them sent between Ms. Abedin and other Clinton aides, according to senior law enforcement officials. It is not clear if Ms. Abedin downloaded the emails to the laptop or if they were automatically backed up there. The emails dated back years, the officials said. Ms. Abedin has testified that she did not routinely delete her emails.

Presumably, the warrant to seize those devices permits the FBI agents to go find any evidence of Weiner sexting women (or perhaps just the young woman in question).

And admittedly, the details NYT’s sources describe involve just metadata: addressing information and dates.

But then, Comey told Congress these emails were “pertinent” to the Clinton investigation, and other details in reports, such as they might be duplicates of emails already reviewed by the FBI, suggest the Weiner investigators may have seen enough to believe they might pertain to the inquiry into whether Clinton and her aides (including Huma) mishandled classified information. Moreover, the FBI at least thinks they will be able to prove there is probable cause to believe these emails may show the mishandling of classified information.

Similarly, there are conflicting stories about whether the Hillary investigation was ever closed, which may arise from the fact that if it were (as Comey had suggested in his first blabby statements), seeking these emails would require further approval to continue the investigation.

The point, though, is that FBI would have had no idea these emails existed were it not for FBI investigators who were aware of the other investigation alerting their colleagues to these emails. This has been an issue of intense litigation in recent years, and I’d love for Huma, after the election, to submit a serious legal challenge if any warrant is issued.

But then, in this case, Huma is being provided far more protection than people swept up in FISA searches, where any content with a target can be searched years into the future without any probable cause or even evidence of wrong-doing. Here, Huma’s emails won’t be accessible for investigative purpose without a warrant (in part because of recent prior litigation in the 2nd Circuit), whereas in the case of emails acquired via FISA, FBI can access the information — pulling it up not just by metadata but by content — with no warrant at all.

[Update: Orin Kerr shares my concerns on this point — with the added benefit that he discusses all the recent legal precedents that may prohibit accessing these emails.]

This is a good example of the cost of such investigations. Because the FBI can and does sweep so widely in searches of electronic communications, evidence from one set of data collection can be used to taint others unrelated to the crime under investigation.

All the people writing scathing emails about Comey’s behavior in this particular matter would like you to believe that this issue doesn’t reflect on larger issues at DOJ. They would like you to believe that DOJ was all pure and good and FBI was well-controlled except for this particular investigation. But that’s simply not the case, and some of these issues go well beyond Comey.

Update: Minor changes were made to this post after it was initially posted.

As part of cybersecurity awareness month, the FBI published this release about having almost 20 cybersecurity “Assistant Legal Attachés” around the world.

Another way we’re working to combat the cyber threat is by placing Bureau cyber experts in FBI legal attaché (legat) offices in strategic locations around the globe—a critical step because cyber threat actors can and do operate virtually anywhere in the world, crossing national and international borders with a few strokes of a keyboard to reach their victims.

Our experts are called cyber assistant legal attachés, or ALATs, and they work on a daily basis with law enforcement in host countries, sharing information, cooperating on investigations, and enhancing our relationships overall. Sometimes, they even work in the same physical space alongside their foreign counterparts.

The cyber ALAT program began in 2011, when several FBI Cyber Division personnel were deployed to a handful of legat offices to address significant cyber threats in those regions impacting U.S. interests and FBI investigations.

Five years later, there are eight permanent cyber ALAT positions—two in London and one each Bucharest, Romania; Canberra, Australia; The Hague, Netherlands; Tallinn, Estonia; Kyiv, Ukraine; and Ottawa, Canada. And currently, the Bureau maintains nearly a dozen temporary duty (TDY) cyber ALAT positions—their locations determined by the cyber threat environment and the host nation’s capabilities in working with the FBI in identifying, disrupting, and dismantling cyber threat actors and organizations.

I get the value of this program. The investigations into some  of the most disruptive cyberattackers require a lot of resources, and surely those resources are better spent if they’re working closely together.

But it does raise some questions. If an FBI Agent is working overseas and deploys an exotic technique there, is it bound by US law, the law of the host country, or by EO 12333? And if that technique ends up nabbing US defendants, do those defendants learn in discovery that the evidence came from an FBI Agent partnering with foreign law enforcement (or spooks) overseas? Or does this just get laundered with the protection DOJ provides foreign evidence.

All these cyber tools disembodied from a legal jurisdiction may be necessary, but it’d be nice to know what, if any, laws they operate under.

According to Reuters, the Intelligence Community doesn’t intend to share any details of the Yahoo scan revealed several weeks back with anyone outside of the FISA oversight committees — the House and Senate Intelligence and Judiciary Committees.

Executive branch officials spoke to staff for members of the Senate and House of Representatives committees overseeing intelligence operations and the judiciary, according to people briefed on the events, which followed Reuters’ disclosure of the massive search.

But attempts by other members of Congress and civil society groups to learn more about the Yahoo order are unlikely to meet with success anytime soon, because its details remain a sensitive national security matter, U.S. officials told Reuters. Release of any declassified version of the order is unlikely in the foreseeable future, the officials said.

On its face, it’s a stupid stance, as I think the scan probably fits within existing legal precedents that have already been made public, even if it stretches those precedents from “packet content as content” to “email content as content” (and it may not even do that).

In addition, given that the scan was approved by a judge (albeit one working within the secret FISA court and relying on prior decisions that were issued in secrecy), by releasing more details about the scan the government could at least claim that a judge had determined the scan was necessary and proportionate to obtain details about the (as described to NYT) state-sponsored terrorist group targeted by the scan. This decision presumably relies on a long line of decisions finding warrantless surveillance justified by special needs precedents, which began to be laid out for FISC in In Re Sealed Case in 2002.

Nevertheless, even given the toll the government’s secrecy is having on Yahoo (and presumably on other providers’ willingness to cooperate with the IC), the government thus far has remained intransigent in its secrecy.

Which suggests that the IC believes it would risk more by releasing more data than by its continued, damaging silence.

I’ve already explained one of the risks they might face: that their quick anonymous description of this as a “state-sponsored terrorist group” might (this is admittedly a wildarsed guess) really mean they hacked all of Yahoo’s users to get to Iranian targets, something that wouldn’t have the same scare power as terrorists like ISIS, especially in Europe, which has a markedly different relationship with Iran than the US has.

But I also think ODNI risks losing credibility because it appears to conflict with what ODNI specifically and other spook officials generally have said in the past, both to the US public and to the international community. As I note here, the definition of “facility” has been evolving at FISC since at least 2004. But the privacy community just released a letter and a quote to Reuters that seems unaware of the change. The letter asserts,

According to reports, the order was issued under Title I of FISA, which requires the government to demonstrate probable cause that its target is a foreign power or an agent of a foreign power (such as a spy or a terrorist), and probable cause that the “facility” at which the surveillance is conducted will carry the target’s communications. If reports are true, this authority to conduct a particularized search has apparently been secretly construed to authorize a mass scan.

Traditional FISA orders haven’t been limited to particularized targets since 2007, when an order targeting Al Qaeda was used to temporarily give Stellar Wind legal sanction. If one order requiring a scan of traffic at  telecom switches could target Al Qaeda in 2007, then surely one order can target Iran’s Revolutionary Guard or a similar organization in 2016. The problem is in the execution of the order, requiring Yahoo to scan all its incoming email, but it’s not clear the legal issues are much worse than in the 2007 execution.

A Reuters source goes even further, suggesting that all of Yahoo is the facility, rather than the specific code tied to the targeted group.

The groups say that Title I of the Foreign Intelligence Surveillance Act, under which sources said the order was issued, requires a finding that the target of such a wiretap is probably an agent of a foreign power and that the facility to be tapped is probably going to be used for a transmission. An entire service, such as Yahoo, has never publicly been considered to be a “facility” in such a case: instead, the word usually refers to a phone number or an email account.

Never mind that under the phone dragnet, Verizon was counted as the targeted selector (which was used by terrorists and everyone else), though admittedly that was just for metadata. Had Yahoo been designed the “place” at which a physical search were conducted this usage might be correct (that said, we know very little about how physical searches, including for stored communication, work in practice), but as Semiannual reports have made clear (admittedly in the Section 702 context), facility has come to be synonymous with selector.

[T]argeting is effectuated by tasking communication facilities (also referred to as “selectors”), including but not limited to telephone numbers and electronic communications accounts, to Section 702 electronic communication service providers.

Facilities are selectors, and here FBI got a selector tied to a kind of usage of email — perhaps an encryption signature — approved as a selector/facility.

In spite of the fact that somewhere among 30 NGOs someone should have been able to make this argument (and ACLU’s litigation side surely could do so), there is good reason for them to believe this.

That’s because the IC has very deliberately avoided talking about how what are called “about” scans but really should be termed signature scans really work.

This is most striking in a March 19, 2014 Privacy and Civil Liberties Oversight Board hearing, which was one of the most extensive discussions of how Section 702 work. Shortly after this hearing, I contacted PCLOB to ask whether they were being fully briefed, including on the non-counterterrorism uses of 702, such as cyber, which use (or used) upstream selectors in a  different way.

Several different times in the hearing, IC witnesses described selectors as “selectors such as telephone numbers or email addresses” or “like telephone numbers or email addresses,” obscuring the full extent of what might be included (Snowden tweeted a list that I included here). Bob Litt did so while insisting that Section 702 (he was referring both to PRISM and upstream here) was not a bulk collection program:

I want to make a couple of important overview points about Section 702. First, there is either a misconception or a mischaracterization commonly repeated that Section 702 is a form of bulk collection. It is not bulk collection. It is targeted collection based on selectors such as telephone numbers or email addresses where there’s reason to believe that the selector is relevant to a foreign intelligence purpose.

I just want to repeat that Section 702 is not a bulk collection program.

Then-Deputy Assistant Attorney General Brad Weigmann said selectors were “really phone numbers, email addresses, things like that” when he defined selector.

A selector would typically be an email account or a phone number that you are targeting. So this is the, you get, you know, terrorists at Google.com, you know, whatever. That’s the address that you have information about that if you have reason to believe that that person is a terrorist and you would like to collect foreign intelligence information, I might be focusing on that person’s account.

[snip]

So that’s when we say selector it’s really an arcane term that people wouldn’t understand, but it’s really phone numbers, email addresses, things like that.

And when then-NSA General Counsel Raj De moved from describing Section 702 generally (“selectors are things like”), to discussing upstream, he mistakenly said collection was based on “particularly phone numbers or emails” then immediately corrected himself to say, “things like phone numbers or emails.”

So there’s two types of collection under Section 702. Both are targeted, as Bob was saying, which means they are both selector-based, and I’ll get into some more detail about what that means. Selectors are things like phone numbers and email addresses.

[snip]

It is also however selector-based, i.e. based on particular phone numbers or emails, things like phone numbers or emails. This is collection to, from, or about selectors, the same selectors that are used in PRISM selection. This is not collection based on key words, for example.

That language would — and apparently did — create the false impression that about collection really did just use emails and phone numbers (which is why I called PCLOB, because I knew they were or had also targeted cyber signatures).

Here’s how all that evasiveness appeared in the PCLOB 702 report:

Although we cannot discuss the details in an unclassified public report, the moniker “about” collection describes a number of distinct scenarios, which the government has in the past characterized as different “categories” of “about” collection. These categories are not predetermined limits that confine what the government acquires; rather, they are merely ways of describing the different forms of communications that are neither to nor from a tasked selector but nevertheless are collected because they contain the selector somewhere within them.

That certainly goes beyond the linguistic game the IC witnesses were playing, but stops well short of explaining that this really isn’t all about emails and phone numbers.

Plus, there’s one exchange from that March 2014 hearing that might be taken to rule out about collection from a PRISM provider. In reply to specific prodding from Elisabeth Collins Cook, De said about collection cannot be made via PRISM.

MS. COLLINS COOK: I wanted to ask one additional question about abouts. Can you do about collection through PRISM?

MR. DE: No.

MS. COLLINS COOK: So it is limited to upstream collection?

MR. DE: Correct. PRISM is only collection to or from selectors.

Of course, De was referring to warrantless collection under Section 702. He wasn’t talking at all about what is possible under Title I. But it may have left the impression that one couldn’t order a PRISM provider to do an about scan, even though in 2007 FISA ordered telecoms to do about scans.

Ultimately, though, the IC is likely remaining mum about these details because revealing it would make clear what publicly released opinions do, but not in real detail: that these about scans have gotten far beyond a collection of content based off a scan of readily available metadata. These scans likely replicate the problem identified in 2004, in that the initial scan is not of things that count as metadata to the provider doing the scan.

The IC may have FISC approval for that argument. But they also had FISC approval for the Section 215 dragnet. And that didn’t live up to public scrutiny either.

I joked when Yahoo first released its letter to James Clapper the other day, asking that he release details about the 2015 scan first revealed by Reuters. It has the tone of a young woman who is justifiably upset because, after sleeping with her, some jerk is pretending he doesn’t even know her.

But as it happens, I’m in Europe, trying to learn more about Privacy Shield and related issues. So I thought I would call attention to the emphasis Yahoo lawyer Ronald Bell (who was the guy who decided not to challenge this) puts on the international impact of Clapper’s decision, thus far, to remain silent.

As you know, Yahoo consistently campaigns for government transparency about national security requests and for the right to share the number and nature of the requests we receive from all governments. We apply a principled approach to handling government requests for user data, including in the national security context, articulated in our publicly-available Global Principles for Responding to Government Requests and regular transparency reports. Our company not only embraces its privacy and human rights responsibilities, we do so enthusiastically, passionately, and with a deep sense of global and moral responsibility. But transparency is not merely a Yahoo issue: Transparency underpins the ability of any company in the information and communications technology sector to earn and preserve the trust of its customers. Erosion of that trust online implicates the safety and security of people around the world and diminishes confidence and trust in U.S. businesses at home and beyond our borders.

Recent new stories have provoked broad speculation about Yahoo’s approach and about the activities and representations of the U.S. government, including those made by the Government in connection with negotiating Privacy Shield with the European Union. That speculation results in part from lack of transparency and because U.S. law significantly constrain–and severely punish–companies’ ability to speak for themselves about national security related orders even in ways that do not compromise U.S. government investigations.

We trust that the U.S. government recognizes the importance of clarifying the record in this case. On behalf of Yahoo and our global community of users, I respectfully request that the Office of the Director of National Intelligence expeditiously clarify this matter. [bold emphasis mine]

Folks here definitely followed the Yahoo story. Their understanding of what happened leads them to believe the scan violates European prohibitions on mass surveillance. Importantly, they’re not aware that this was done with an “individual” FISA order rather than under Section 702. As I’ve written, “individual” orders have been used for bulk scans since 2007, but in this case, an “individual” order would also mean that a judge had reviewed the scan and found it proportional, which would make a big difference here (at least to authorities; a number of other people are raring to challenge such judgements on whether it is an adequate court or not).

So yeah, by disclosing details of this scan, Yahoo may be in much better position vis a vis European authorities, if not consumers.

But there’s another reason why Clapper’s office — or rather ODNI General Counsel Bob Litt — may be so quiet.

Litt is the one who made many of the representations about US spying to authorities here. Someone — Litt, if he’s still around for a hearing that may take place under President Hillary — may also need to go testify under oath in an Irish court in conjunction with a lawsuit there. Whoever testifies will be asked about the kinds of surveillance implicating European users the government makes US companies do.

In other words, Bob Litt is the one who made certain representations to the European authorities. And now some of those same people are asking questions about how this scan complies with the terms Litt laid out.

Which makes his silence all the more instructive.

Since the release of the tape showing Trump bragging about “grabbing [women] by they pussy,” I’ve been far more interested in the response from cops’ unions than members of Congress. After all, the Republicans who really had a moral or ethical problem with Trump would have already distanced themselves (as some have). Anyone flipflopping now would simply be gaming the impact on their own election.

But cops? Cops are supposed to protect people from men grabbing them by their genitalia without consent. And thus far, the Fraternal Order of Police has shown no regret for their national endorsement of Trump and all he stands for (which of course includes gambling, financial trickery, racism, and some ties to the mob, on top of the explicit sexism).

I’ve been annoyingly reminding people of that on Twitter every day.

Finally, someone else is examining the issue. While I’ve been traveling, the Baltimore Sun did a piece noting that their state FOP, along with four other states and DC, actually voted against endorsing the Donald.

The story quotes FOP president, Chuck Canterbury, explaining that they endorsed because Donald claims we need “law and order” (apparently Canterbury is cool if everything about him defies that campaign claim).

Canterbury attributed the endorsement for Trump to the candidate’s campaigning on the need for “law and order” and on his support of law enforcement officers.

It ends with contrasting quotes from Canterbury and a member of a minority police organization addressing the “pussy” comment.

Canterbury described Trump’s remarks as “crass and very inappropriate” but said that his organization likely wouldn’t weigh in “until someone comes forward to press criminal charges.”

Louis Hopson of the Vanguard Justice Society, an organization of minority police officers in Baltimore, said that other states should have followed Maryland in voting not to endorse a candidate.

“We need to make sure the commander in chief understands that sexual assault is sexual assault,” Hopson said. “Unlawful touching is a violation of the law.”

In other words, even after the release of the tape, one of the nation’s cops unions is still okay if Trump endorses sexual assault, so long as no one presses criminal charges (as opposed to the rape lawsuit currently working its way through court).

You know? “Law and order”?

Update: In a piece on NARAL’s new petition calling on the FOP to withdraw its nomination, Ryan Grim the broader discomfort among non-white cops with the endorsement.

The FOP also represents thousands of African-American police officers, many of whom have complained publicly that a largely white leadership pushed through the endorsement without getting consensus.

“At a time when we’re all trying to unite and bring the world to a calm, the last person we need is a Donald Trump,” said David Fisher, president of the greater Philadelphia chapter of the National Black Police Association. “And the last thing the police need is to hitch its wagon to a Donald Trump.”

Shane Harris wants to know — and not for the first time — why James Cartwright will be the only one to take the fall for leaking to David Sanger about StuxNet.

The charges weren’t exactly a surprise. Cartwright has known for more than three years that he was the target of an investigation into who leaked details about the so-called Stuxnet computer virus, which the United States used to destroy centrifuges inside an Iranian nuclear enrichment facility in 2008 and 2009.

But notably, Cartwright who previously served as vice chairman of the Joint Chiefs of Staff, is the only person to have been charged with leaking information about the highly classified program, even though it’s clear from various books and articles that he wasn’t the only source of information about it. Times reporter David Sanger revealed the operation and wrote about it extensively in his book, Confront and Conceal.

That raises questions about why Cartwright is being charged now and if he was somehow singled out for speaking to Sanger and another journalist, Newsweek’s Daniel Klaidman. Journalists and U.S. officials in Washington have generally known for years that Cartwright was a major source about Stuxnet, but it was also understood that he had permission from the White House to share certain details about the program.

The intrigue surrounding the investigating dates back more than three years, according to Harris, to the last time he raised questions about Cartwright’s targeting. In that article, he admits,

Cartwright did have fans in the press corps, which usually found him an affable and, most importantly, accessible source.

Harris might more productively look at what was different about the Sanger story that got investigated — namely, that it blamed the Israelis for revealing the program by letting StuxNet escape. That it, it may well be that Cartwright got prosecuted not because he leaked the thing that was permissible — that the US had allegedly stalled Iran’s nuclear power production with computer code — but rather that the Israelis undermined the program that was undermining their excuse to attack Iran.

Still, it’s odd that Harris finds it odd that just one person is getting prosecuted in the first place, as if he’s only discovering that happens all the time.

It’s something Charlie Savage did in his book, Power Wars, too. I showed how erroneous that assumption is in the case of the UndieBomb 2.0 leak, where Donald Sachtleben was scapegoated even though the record shows he only confirmed something the reporters already had. But the same is true of other leaks, as well. For example, the public record already identifies another source for James Risen’s Merlin leak, and the trial record shows FBI believed still another person was the main leaker and never really dismissed him as a target.

So we always should be asking why the one and only one person who gets targeted gets targeted. In this case, a better parallel might be to the Scooter Libby case. There, as here, the target claims to have been authorized to leak. In that case, Fitzgerald was definitely trying to move up the chain to Dick Cheney. In both cases, the big question may be about whether the President (or Vice President, if he’s the one in charge) authorized the specific leak.

Me, I’m more interested in why Cartwright was prosecuted in DC, rather than Maryland, even while Maryland’s US Attorney Rod Rosenstein oversaw the investigation. I suspect that’s because it was deemed a special counsel investigation of sorts, but that raises even more questions about why Ronald Machen investigated UndieBomb 2.0 and Rosenstein investigated this, but both were apparently in DC.

One of the most notable failures to prevent a terrorist attack in recent years involves Tamerlan Tsarnaev. After the Russians alerted us he was engaging with radical elements, he flew to Chechnya in January 2012. In spite of an alert set to identify him, Customers and Border Protection did not stop him either going out or coming back from Russia.

As the Inspector General report on the attack explains, though CBP had probably been properly alerted he was a concern, Tsarnaev was not interviewed on the way out of the country because there were higher priority passengers.

On Tsarnaev’s way back into the country, CBP would have gotten an alert from Aeroflot, but that alert did not come up on CBP’s display status.

A recent story from the Intercept reveals that one of the things that may have been a higher priority than interviewing Tsarnaev was interviewing “good” guys.

In years leading up to the attack on the Boston Marathon CBP started working with the FBI to identify potential informants through CBP interviews. Reports describe how this involved a shift in perspective, from an enforcement perspective focused on “looking for the ‘bad guys’,” to an intelligence perspective focused on “looking for the ‘good guys'” who might be willing to trade information about their community for immigration benefits.

It worked this way: CBP would provide a 3-day passenger list to the FBI, the FBI would find anyone of interest, and then CBP would screen them to determine whether they had access to sources and willingness to serve as an informant.

The documents the Intercept released pertain only to Boston’s Logan Airport, Buffalo, and Rochester; curiously, at least Buffalo seems to coordinate primarily with Boston. So they don’t describe how this program got rolled out at JFK, through which Tsarnaev flew. But in Boston, at least, there was a big spike in the number of CBP inspections conducted in January 2012, the very month Tsarnaev flew out.

Was CBP so busy looking for informants it missed someone the Russians had IDed (correctly) as a terrorist?

Among the emails released as part of the Podesta leaks yesterday, WikiLeaks released this one showing that, almost a year before she was making the same argument in debates with Bernie Sanders, Hillary was opposed to Investor State Dispute Settlement that is part of the Trans Pacific Partnership. (h/t Matt Stoller) ISDS is the means by which corporations have used trade agreements to operate above the domestic laws of party countries (if you haven’t read this three part series from BuzzFeed to learn about the more exotic ways business are profiting off of ISDS).

The email also appears to echo her later public concern that she had changed her mind on TPP because of KORUS.

After our last talk with HRC, we revised our letter to oppose ISDS and include her caution about South Korea.

Sure, other Podesta emails show Hillary supporting a broad region of free trade (and labor) in the Americas. But this more recent email confirms that the views she expressed in debate were more than just an attempt to counter Bernie’s anti-trade platform.

Whether or not this is newsworthy enough to justify the WL dump, it is noteworthy in light of NYT’s rather bizarre article from some weeks back suggesting that WL always sides with Putin’s goals. As I noted, the article made a really strained effort to claim that WL exposed TPP materials because it served Putin’s interests. Now, here, WL is is releasing information that makes Hillary look better on precisely that issue.

That doesn’t advance the presumed narrative of helping Trump defeat Hillary!

Then, as I noted yesterday, in spite of all the huff and puff from Kurt Eichenwald, the release of a Sid Blumenthal email used by Trump is another case where the WL release, as released, doesn’t feed the presumed goals of Putin.

Which brings me to this Shane Harris piece, which describes four different NatSec sources revealing there’s still a good deal of debate about WL’s ties to Russia.

Military and intelligence officials are convinced that WikiLeaks is an ongoing threat to U.S. national security and privacy owing to its leaks of classified documents and emails. But its precise relationship with Russia has been a subject of internal debate. Some do see the group as being in cahoots with the Kremlin. But others find that WikiLeaks is acting mainly as the beneficiary of stolen documents, not unlike a journalistic organization.

There are some funny aspects to this story. Nothing in it considers the significant evidence that WL is (and has reason to be) affirmatively anti-Hillary, which means its interests may align with Russia, even if it doesn’t take orders from Russia.

It also suggests that if the spooks can prove some tie between WL and Russia, they can spy on it as an agent of foreign power.

But those facts don’t mean WikiLeaks isn’t acting at Russia’s behest. And that’s not a trivial matter. If the United States were to determine that WikiLeaks is an agent of a foreign power, as defined in U.S. law, it could allow intelligence and law enforcement agencies to spy on the group—as they do on the Russian government. The U.S. can also bring criminal charges against foreign agents.

WL has been intimately involved in two separate charges cases of leaking-as-espionage in the US, Chelsea Manning and Edward Snowden. The government has repeatedly told courts that it has National Security/Criminal investigations, plural, into WikiLeaks, and when pressed for details about how and whether the government is collecting on supporters and readers of WikiLeaks, the government has in part hidden those details under a b3 FOIA exemption, meaning a statute prevents disclosing it, while extraordinarily refusing to reveal what statute that is. We certainly know that FBI has used multiple informants to spy on WL and used a variety of collection methods against Jacob Appelbaum, including (according to Appelbaum) physical tails.

So there’s not only no doubt that the US government believes it can spy on WikiLeaks (which is, after all, headed by a foreigner and not a US organization), but that it already does, and has been doing for at least six years.

Perhaps Harris’ sources really mean they’ve never found a way to indict Julian Assange before, but if they can claim he’s working for Putin, then maybe they’ll overcome past problems of indicting him because it would criminalize journalism. If that’s the case, it may be shading analysis of WL, because the government would badly like a reason to shut down WL (as the comments about the direct threat to the US in the story back up).

As I’ve said before, the role of WL in this and prior leak events is a pretty complex one, one that if approached too rashly (or too sloppily) could have ramifications for other publishers. While a lot of people are rushing to collapse this (in spite of what sounds like a continuing absence of directly incriminating evidence) into a nation-state conflict, things like this TPP email suggest it’s not that simple.

Reuters has a report that SWIFT — the international financial transfer messaging system — has been hacked again, what it describes as the second effort to steal big money by hacking the system.

Cyber-security firm Symantec Corp said on Tuesday that a second hacking group has sought to rob banks using fraudulent SWIFT messages, the same approach that yielded $81 million in the high-profile February attack on Bangladesh’s central bank.

Symantec said that a group dubbed Odinaff has infected 10 to 20 organizations with malware that can be used to hide fraudulent transfer requests made over SWIFT, the messaging system that is a lynchpin of the global financial system.

But it should say the third hack. As the Snowden documents revealed, NSA was double dipping at SWIFT in the 2010 to 2011 timeframe, though to steal information, not money.

What’s interesting about this latest hack, though, is it targets the US and countries closely aligned with it, though it appears to be a criminal organization not a state.

Symantec said that most Odinaff attacks occurred in the United States, Hong Kong, Australia, the United Kingdom and Ukraine.

The Reuters report also notes that Symantec thinks the Sony hack was done by a group it calls Lazarus, which may not be the same as North Korea.

As with the Yahoo scan ordered last year — which effectively appears to have hacked all Yahoo’s users — it makes sense to think of US nation-state hacks and criminal or foreign adversary ones in the same breath. Not only might an NSA hack expose methods others might use, but with an entity like SWIFT, there’s no reason to privilege US hacking over others.

At a campaign appearance yesterday, Donald Trump quoted a judgment that Kurt Eichenwald made in an article last year on the Benghazi investigation.

One important point has been universally acknowledged by the nine previous reports about Benghazi: The attack was almost certainly preventable. Clinton was in charge of the State Department, and it failed to protect U.S. personnel at an American consulate in Libya. If the GOP wants to raise that as a talking point against her, it is legitimate.

The rest of the article was about how politicized the inquiry was. But right there in the middle of his article, Eichenwald included a namby pamby both-sides paragraph — one that could have better nuanced the conclusions of the many Benghazi reports — that said Benghazi was a legitimate issue to raise against Hillary.

Sucks to be Eichenwald, because Trump just used it on his campaign, to thrilled cries from his frothy supporters.

The quote came up on the campaign trail because Sid Blumenthal had forwarded the article — highlighting the description about the politicized questioning he himself had undergone, but ultimately quoting the entire article, including that namby pamby paragraph — to a bunch of undisclosed recipients, including John Podesta, under the subject line “The truth…” Blumenthal surely meant that Eichenwald’s larger point — that the whole investigation was politicized — was the truth, but he did forward the whole thing, including the namby pamby paragraph, under that heading.

The forwarded story got released by WikiLeaks as part of its Podesta leaks (emails which Hillary effectively confirmed during the debate by explaining one of the emails that had attracted the most attention).

Now, as it turns out, Sputnik published a story on the email, erroneously attributing the entire judgment, including that attacking Hillary for Benghazi was a legit talking point, to Blumenthal, not Eichenwald. They apparently realized their error and took it down. But not before Eichenwald started wondering how Trump came to be quoting his own namby pamby paragraph on the campaign trail.

In an article asserting that Trump got his talking point from the Sputnik story, Eichenwald has given up not only his namby pamby tone, but moderation. In it, having already suggested the misattribution to Blumenthal was due to “incompetence,” he then claims it was also deliberate disinformation. He then states as fact that Trump got this “falsehood” from the Kremlin.

This is not funny. It is terrifying. The Russians engage in a sloppy disinformation effort and, before the day is out, the Republican nominee for president is standing on a stage reciting the manufactured story as truth. How did this happen? Who in the Trump campaign was feeding him falsehoods straight from the Kremlin? (The Trump campaign did not respond to a request for comment).

The Russians have been obtaining American emails and now are presenting complete misrepresentations of them—falsifying them—in hopes of setting off a cascade of events that might change the outcome of the presidential election. The big question, of course, is why are the Russians working so hard to damage Clinton and, in the process, aid Donald Trump? That is a topic for another time.

Here’s an earlier version of the article, in which Eichenwald even more obviously asserts that the Sputnik article is both an error and a deliberate falsification.

Of course, this might be seen as just an opportunity to laugh at the incompetence of the Russian hackers and government press—once they realized their error, Sputnik took the article down. But this is not funny at all. The Russians have been obtaining American emails and now are presenting complete misrepresentations of them—falsifying them—in hopes of setting off a cascade of events that might change the outcome of the presidential election. The big question, of course, is why are the Russians working so hard to damage Clinton and, in the process, aid Donald Trump. That is a topic for another time.

There are two interesting details about Eichenwald’s story. Nowhere in the piece does he link the actual Wikileaks email, which makes it clear that Blumenthal had, in fact, forwarded that namby pamby paragraph along with everything else. It is clear that the email was just a forwarded Newsweek article, but given that the part Blumenthal highlighted at the top was his own testimony, it is perhaps understandable why someone might make the misattribution.

More interesting still, while Eichenwald links this YouTube of what he says is Trump repeating the Sputnik talking point, he only selectively quotes from it. But it appears (and I admit that this, as with all of Trump’s ramblings, is not entirely clear) that Trump introduces the quote this way:

So Blumenthal writes a quote — this just came out a little while ago, I have to tell you this. “One important point has been …

It’s certainly possible Trump meant, “So Blumenthal writes, I quote,” but at least to my ear, he said, “Blumenthal writes a quote.” If that’s right, then Trump couldn’t have been working from Sputnik (or he at least wasn’t replicating their error), because he would have been properly attributing this judgment as a quote (of Eichenwald). Trump does go on to say “this is Sidney Blumenthal, the only one he was talking to,” after insinuating that one reason Hillary set up her email server may have been to continue talking to “Sleazy Sidney” after Obama told her to stop, but nowhere in the clip do I see Trump IDing it as an email from Blumenthal. Perhaps Eichenwald bases this assertion — “He told the assembled crowd that it was an email from Blumenthal” — on some other part of the appearance.

Eichenwald also notes that Trump was “holding a document in his hand.” But the document appears to be a transcribed talking point; it’s almost certainly not the Sputnik article. So that doesn’t tell us anything about provenance.

In other words, it’s not actually clear where Trump got this from, or whether Trump’s staffers had at least corrected Sputnik’s error. It may well be! But Eichenwald hasn’t made that case.

Apparently this frothy Trump supporter tweeted out the claim, just as Trump stated it, though he has since deleted it. (h/t Emma Jones) The supporter, who joined Twitter in February 2016, could well be a Russian troll (but one that long precedes this particular leak campaign), but he certainly models as an Infowars loving Hillary hater who overreads anything implicating her, something America has in ready supply without Putin’s help.

There’s one other part of this that I find notable, aside from the claim that Sputnik made this error out of both incompetence and deliberate disinformation. A big part of this narrative is that Wikileaks is doing Russia’s bidding rather than — a more logical explanation — attacking Hillary, with whom Julian Assange has had a 6-year adversarial relationship.

Wikileaks may well be working with Russia and/or the effect of sharing a mutual interest in weakening Hillary may amount to the same.

But this is actually a case where Russia did not do what has been alleged they might. That is, Wikileaks released what is an email no one contests, a not very controversial one at all. While Wikileaks has made misleading claims about what it has released at times, this is not one of them.

One thing clearly did not happen though. Even assuming Russia is responsible for the Podesta email leak, Russia did not “falsify” the original email to say what Eichenwald is so convinced Russia wanted to claim, that Blumenthal himself had endorsed Eichenwald’s namby pamby judgment that Benghazi is a fair talking point to use against Hillary. That claim only came after Sputnik tried to make it a bigger issue (but then realized its error, according to Eichenwald).

If Russia were doing what Eichenwald claimed — and they might in the future!! — then they would have doctored the email on the front end, not when republishing it in a state outlet.

Update: Unsurprisingly, Glenn Greenwald rips this (especially Eichenwald’s inflammatory tweets about the story) apart. More interesting, WaPo also dings Eichenwald for overclaiming what this incident reveals.

Update, November 1: There’s a very strange coda to this story. The guy who, until this event, worked at Sputnik and was responsible for the mistake, Bill Moran, wrote up this story from his viewpoint. Here’s how he made the mistake.

On Columbus Day, I made an embarrassing mistake. I noticed a series of viral tweets attributing words to Sidney Blumenthal on the Benghazi scandal. The original WikiLeaks document, to which the original article linked, was lengthy – 75 pages. I reviewed the document in a hurry, but I did not read all of them.

[snip]

I was moving too fast and I made a mistake – a mistake that I remain embarrassed about making. I stepped outside to smoke a cigarette after scheduling our social media accounts, stopped halfway through, thought “why hasn’t anybody else picked this up?” gave the document a second review, realized my error, and proceeded to delete the story.

The story was up from 3:23PM EDT to 3:42PM EDT and received 1,061 views before being removed – I’d like to apologize to weekend readers for making that mistake no matter how honest an error it was.

What happened next is weirder. Eichenwald made a series of contacts with the guy, basically trying to persuade him not to tell the real story publicly, including by suggesting he could help him get a job at New Republic and then by threatening him.

Then, as Paste describes, they had a long conversation that Moran, at first, wasn’t going to release. In it, Eichenwald waggles around American spooks.

In Moran’s notes on the call, he quotes Eichenwald as repeating that the “intelligence community” was monitoring both Sputnik and a separate Twitter account, which he holds responsible for the blowback (as opposed to his own story). He went on to say that everyone at Sputnik had an intelligence file on them, and asked if Moran had made any foreign phone calls that might have raised eyebrows. He went on to imply that Moran might have issues getting a re-entry visa into America if he ever traveled abroad, and then offered to help Moran “find a real job” to extricate him from the situation. He went on to say that both Sputnik and Russia Today have been targeted by the intelligence community, and will soon be subject to sanctions that aim at shutting them down for good.

Which Eichenwald does again in a follow-up email (at which point Eichenwald seemed to be going nuts, because he didn’t realize that Moran included Newsweek’s own lawyer on the exchange and instead assumed it was Moran’s lawyer).

Next, he reverts to the threatening language—the “bad cop” persona—telling Moran that he could tie him to the Russians themselves: “Now, there is one alternative here,” Eichenwald writes. “I can write: ‘William Moran, the writer for Sputnik, said he based his article not on directives from the Russian government but on an anonymous tweet that used a clip of the image of the document. He said he accepted the anonymous tweeters’ description that this was from Blumenthal, and did so because he was rushed. However, as the government official with knowledge of the intelligence inquiry said, the original altered document that was tweeted onto the internet came from a location that has been identified as being connected to the Russian disinformation campaigns, and only the news outlet owned by the Russian government published an article based on it.”

In other words, perhaps in an attempt to salvage his reputation, or perhaps in truth, Eichenwald was dragging the intelligence community into this.