This morning, Dana Milbank — who used to have a podcast with Chris Cillizza on which he once suggested Hillary would choose to drink Mad Bitch beer —  wrote a piece warning of the dangers of fake news.

After writing about a threatening email he received, Milbank considered whether episodes like the attack on Comet Ping Pong — which he described as “the family pizza place in Northwest Washington I’ve been frequenting with my daughter ever since she was a toddler a decade ago” — were the new normal. Milbank described the role of Alex Jones in making a “bogus and bizarre accusation” against Hillary. Then he turned the attack on Comet Ping Pong, in part, into an attack on the media.

This would appear to be the new normal: Not only disagreeing with your opponent but accusing her of running a pedophilia ring, provoking such fury that somebody takes it upon himself to start shooting. Not only chafing when criticized in the press but stoking anti-media hysteria that leads some supporters to threaten to kill journalists.

The man whose “Mad Bitch beer” comment targeted Hillary ended his piece by scolding Trump for fueling rage against Hillary and those who support her.

If Trump were a different leader, he would declare that political violence is unacceptable in a free society. Perhaps he’d say it after eating a “Steel Wills” pie at Comet.

But instead he continues to fuel rage against his opponents and his critics.

On Twitter, Peter Singer — who wrote a very worthwhile book that uses fiction to lay out near term threats to the US  — RTed Milbank’s story with the comment, “stop winking and nodding” at fake news because it can get people killed.

Singer works at New America Foundation, but he used to work at Brookings Institution, which employs people like Michael O’Hanlon and Charles Lister to write propaganda, funded in part by Qatar, designed to generate support for endless wars in the Middle East.

In response to Singer’s tweet, I RTed it and pointed out that “The #fakenews about Iraqi WMD DID get hundreds of thousands killed.” That in turn led to some interesting discussions, most notably with Zeynep Tufekci, who claimed that by “conflating two very, very different types of failure” I was being unhelpful because those different kinds of fake news operated via different mechanisms.

Tufekci is right. The means by which an uncritical press — enthusiastically joined by the WaPo’s editorial page and many, but not all, of its reporters — parroted Dick Cheney’s lies about Iraqi WMD are different than the means by which millions of people sought out the most outrageous claims about Hillary. The means by which the financial press claimed the housing market would never collapse are different than the means by which millions of people sought out conspiracy theories about the people who didn’t prosecute the banksters. The means by which Dana Milbank got to insinuate the Secretary of State might choose Mad Bitch beer are even different than the means by which millions of people sought out news that called the former Secretary of State #CrookedHillary. The means by which the traditional press focused more attention on Hillary’s email server than on Trump’s fraudulent business practices are different than the means by which millions of people sought out claims that Hillary’s email server was going to get her indicted. All of those traditional news examples of fake news included an editorial process designed to prevent the retelling of fake news.

The means by which traditional news media shares fake news are different than social media’s algorithm driven means of sharing fake news.

Until you remember that a week before the election, Fox’s Bret Baier, who eight months earlier had moderated a GOP primary debate, reported that the investigations into Hillary “will continue to likely an indictment.” While Baier retracted the claim just over a day later, the claim was among the most damaging pieces of fake news from the campaign, not least because it confirmed some of what the most inflammatory social media claims were saying and magnified the damage of Jim Comey’s irresponsible announcement about finding new emails.

Baier got manipulated by his sources who knew how to game the means the press uses to avoid fake news. Baier got manipulated into sharing fake news that served the goals of his sources. It turns out Baier was not any more immune from the manipulation of his biases than your average news consumer is.

Now, the NYT (though not, I think, the WaPo) apologized for their WMD coverage and Milbank apologized for his Mad Bitch podcast and Baier apologized for his indictment scoop. No one has yet apologized for focusing more attention on Hillary’s email server than Trump’s own corruption, but I’m sure that’s coming. I’m not aware that the financial press apologized for the cheerleading that ultimately led to millions of Americans losing their homes to foreclosure, but then it also hasn’t stopped the same kind of fake news cheerleading that led to the crash.

Indeed, while it shows remorse after some of the worst cases, the traditional news media still lapses into the habit of reporting fake news, often in a tone of authority and using an elite discourse. Such lapses usually happen when a kind of herd instinct or a rush to get the news first sets in, leading news professionals to tell fake news stories.

And, now that social media has given average news consumers the ability (and after financialization has led to the disappearance of reliable local news), average news consumers increasingly bypass news professionals, listening instead to the stories they want to hear, told in a way that leads them to feel they are assuming a kind of self-control, told in a language and tone they might use themselves. At its worst — as in the case of PizzaGate — a kind of herd instinct sets in, with news consumers reinforcing each others’ biases. On Sunday, that almost got a lot of innocent people — families like Milbank’s own — killed.

Elite commentators may view the herd instincts of average news consumers to be more crude than the herd instincts of professional news tellers. Perhaps they are. Across history, both types of herd instincts have led to horrible outcomes, including to the deaths of hundreds of thousands, even millions of people.

But as we try to deal with our herd instincts and the mistakes we all make (myself very much included), we might do well to exhibit a little less arrogance about it. That certainly won’t eliminate the mistakes; we are, ultimately, herd animals. But it might provide a basis to rebuild some trust, without which leads all of us — the professionals and the average news consumers — further into our own bubbles.

Update: This Current Affairs piece treats WaPo’s peddling of fake news — including the PropOrNot story — well.

The last paragraph of a 9th Circuit Judge John Owens opinion rejecting Mohamed Osman Mohamud’s appeal reads,

Many young people think and say alarming things that they later disavow, and we will never know if Mohamud—a young man with promise—would have carried out a mass attack absent the FBI’s involvement. But some “promising” young people—Charles Whitman, Timothy McVeigh, and James Holmes, to name a few from a tragically long list—take the next step, leading to horrific consequences. While technology makes it easier to capture the thoughts of these individuals, it also makes it easier for them to commit terrible crimes. Here, the evidence supported the jury’s verdict, and the government’s surveillance, investigation, and prosecution of Mohamud were consistent with constitutional and statutory requirements.

Mohamud had appealed on several grounds. Generally, he argued that he had been entrapped, that Section 702 was unconstitutional, and that that evidence should be thrown out because he was not informed in timely fashion.

The court was (as they had been in the hearing) most sympathetic to Mohamud’s entrapment case, but found that even though he was first approached before he turned 18 (Mohamud was 19 when he pressed a button believing it would set off a bomb at Portland’s Pioneer Square), the entrapment was less than what happened with James Cromitie, a case the 2nd Circuit upheld.

Nevertheless, the court found that a jury might reasonably find that Mohamud was predisposed to commit a bombing, even before government incitement.

In sum, viewing the evidence in the light most favorable to the government, we cannot say that “no reasonable jury could have concluded that [Mohamud was] predisposed to commit the charged offense[].” Davis, 36 F.3d at 1430. We therefore conclude that the district court properly rejected his defense of entrapment as a matter of law.

The court was less sympathetic to Mohamud’s FISA challenge.

But their argument on this front is pretty weird. The court dodges any ruling on a foreign intelligence exception that the government claimed.

Because the incidental collection excepts this search from the Fourth Amendment’s warrant requirement, we need not address any “foreign intelligence exception.”

Instead, it invokes the Third Party doctrine, suggesting that because Mohamud wrote to someone — anyone! —  to suggest he had a diminished expectation of privacy in his side of emails.

It is true that prior case law contemplates a diminished expectation of privacy due to the risk that the recipient will reveal the communication, not that the government will be monitoring the communication unbeknownst to the third party. See, e.g., United States v. Miller, 425 U.S. 435, 443 (1976); United States v. White, 401 U.S. 745, 752 (1971); Hoffa v. United States, 385 U.S. 293, 302 (1966). While these cases do not address the question of government interception, the communications at issue here had been sent to a third party, which reduces Mohamud’s privacy interest at least somewhat, if perhaps not as much as if the foreign national had turned them over to the government voluntarily. See also Hasbajrami, 2016 WL 1029500 at *11 & n.18 (observing same distinction).

The court then admits that the sheer volume of incidental collection under Section 702 might be a problem, but suggests that minimization procedures thereby acquire more importance (while bracketing the problem of post-collection querying — also known as back door searches — the FBI conducts all the time).

Mohamud and Amici also contend that the “sheer amount of ‘incidental’ collection” separates § 702 from prior cases where courts have found such collection permissible. We agree with the district court’s observation that the most troubling aspect of this “incidental” collection is not whether such collection was anticipated, but rather its volume, which is vast, not de minimis. See PCLOB Report at 114 (“The term ‘incidental’ is appropriate because such collection is not accidental or inadvertent, but rather is an anticipated collateral result of monitoring an overseas target. But the term should not be understood to suggest that such collection is infrequent or that it is an inconsequential part of the Section 702 program.”). This quantity distinguishes § 702 collection from Title III and traditional FISA interceptions. However, the mere fact that more communications are being collected incidentally does not make it unconstitutional to apply the same approach to § 702 collection, though it does increase the importance of minimization procedures once the communications are collected.24

24 To the extent that Amici argue that the incidental overhear doctrine permits the unconstitutional and widespread retention and querying of the incidentally collected information, that issue is not before us.

Which brings us to this passage assessing the value of those minimization procedures with increased import.

While Executive Branch certification contributes some degree of further protection, it does not weigh heavily. Typically in the Fourth Amendment context, review from a neutral magistrate is considered the appropriate check on the Executive, which otherwise may be motivated by its interest in carrying out its duties. See, e.g., Leon, 468 U.S. at 913–14 (explaining that in obtaining a search warrant, a neutral magistrate is “a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer ‘engaged in the often competitive enterprise of ferreting out crime’” (citation omitted)). Under these circumstances, where the only judicial review comes in the form of the FISC reviewing the adequacy of procedures, this type of internal oversight does not provide a robust safeguard. The government notes that in In re Sealed Case, 310 F.3d 717, 739 (FISA Ct. Rev. 2002), the FISA Review Court observed that Congress recognized that certification by the AG in the traditional FISA context would “‘assure [ ] written accountability within the Executive Branch’ and provide ‘an internal check on Executive Branch arbitrariness.’” (citation omitted). However, as described above, § 702 differs in important ways from traditional FISA, and a mechanism that might provide additional protections above and beyond those already employed in a traditional FISA context provides far less assurance and accountability in the § 702 context, which lacks those baseline protections. See also Clapper, 133 S. Ct. at 1144–45.

Accordingly, although we do not place great weight on the oversight procedures, under the totality of the circumstnces, we conclude that the applied targeting and minimization procedures adequately protected Mohamud’s diminished privacy interest, in light of the government’s compelling interest in national security,

In other words, in the section assessing incidental collection, the court points to the import of minimization procedures. But when it comes to minimization procedures, it does “not place great weight” on them, because of the government’s compelling interest in national security. It is ultimately an argument about necessity based on national security.

Ultimately, then, the court argues that it was okay for the government to read Mohamud’s emails without a warrant, in spite of its admission of weaknesses in the government’s argument about a diminished expectation of privacy and minimization procedures. It does so by invoking three older (though still young) white mass killers, all of whom worked domestically.

While the court definitely relies on targeting rules limiting 702 to someone overseas, with its seeming admission that both its Third Party and its minimization procedure arguments are inadequate (as well as its decision that none of this has to do with a foreign intelligence exception), it gets frightfully close to making an argument that doesn’t distinguish foreign communications from domestic.

Perhaps Owens invokes those three white men to emphasize, unconvincingly, that that doesn’t mean Mohamud was targeted in a way a white non-Muslim wouldn’t be, but given the legal argument that’s left, the opinion is all the more troubling.

Update: Orin Kerr — who knows a lot more about law than I do — doesn’t like this opinion either. Among other common impressions, he’s not happy that Owens borrowed from a not really well written District opinion.

If you haven’t already, you should read this long story on how longtime US diplomat Robin Raphel came to have her life turned upside down based on a frivolous espionage investigation. The piece has earned a lot of praise both for the reporting that went into it and the writing.

I want to point to a few lessons from the piece.

The “Tip”

As the piece explains, Raphel served for decades in Pakistan and South Asia generally, developing a lot of close ties there (she also did a stint in Iraq at the beginning of the war).

Over the years, she was one of the few remaining people who would get out of US compounds to go meet with Pakistanis directly. Precisely because she was engaging directly (or collecting human intelligence, in the view of the spooks), she would be captured in a great deal of intercepts targeting her interlocutors, meaning anything that appeared amiss would elicit attention from the NSA analysts reviewing the intercepts.

The NSA regularly swept up Pakistani communications “to, from or about” senior U.S. officials working in the country. Some American officials would appear in Pakistani intercepts as often as once a week. What Raphel didn’t realize was that her desire to engage with foreign officials, the very skill set her supervisors encouraged, had put a target on her back.

By the time Raphel returned to Pakistan under the Obama Administration, the NSA included Pakistan’s ruling party by name in the Section 702 foreign government certificate, which provides some indication of how much NSA was vacuuming up.

As far back as the 1990s, intelligence agencies deemed Raphel to be too sympathetic to Pakistani views, a view which continued when she returned to Pakistan under Obama.

In 2013, FBI received a “tip” purportedly implicating Raphel based off intercepts targeted at Pakistanis.

In February 2013, according to law-enforcement officials, the FBI received information that made its agents think Raphel might be a Pakistani mole.

The tip came in the form of intercepted communications that suggested Raphel had shared sensitive inside information without authorization. Two officials said this included information collected on wiretaps of Pakistani officials in the U.S.

The description of this tip suggests Raphel was talking with Pakistanis located in the US. Even there, there is room for ambiguity; it could also suggest (but probably doesn’t) that the wiretaps, not the Pakistani officials, were in the US.

The article also suggests Raphel’s conversations with a Pakistani woman named Maleeha Lodhi were among the most interesting to spies. When Raphel was Assistant Secretary of South Asian Affairs in the mid-1990s, Lodhi was Ambassador to the US, but she had been a journalist before and returned to journalism after that post; she is now Pakistan’s representative to the UN.

[Lodhi] had returned to the news business, writing a regular column and appearing as a commentator on Pakistani television. American officials said they had no doubt that Lodhi was more than an ordinary journalist, however.

In her six years in Washington as Pakistan’s ambassador, Lodhi had earned a reputation as a reliable source for what Pakistani officials were thinking, and in particular, as a trusted conduit for relaying messages to Pakistan’s senior military leadership in Rawalpindi, U.S. officials said. She was, in State Department parlance, an “influencer.” One reason U.S. officials trusted her: The NSA had long been monitoring her communications.

In other words, the NSA was targeting a journalist’s communications. The story presents conflicting viewpoints about how much of Lodhi’s information got back to the Pakistani government, with US sources insinuating that because she shared a lot of information with the Pakistani government, she wasn’t really a journalist. To a great degree that’s just a rationalization.Not only does the same kind of information sharing between journalists and government officials happen here. But the US targeted Lodhi not because she was deemed a threat, but because she was a good source of information. I suspect WSJ’s sources shared those competing claims in an attempt to obscure, from both Congress and FISA Court observers, how broadly the NSA targets off foreign government 702 certificates, such that it can include journalists with close ties but no formal relationship with a foreign government.

Moreover, the two versions of the basis of the tip on Raphel — Pakistani officials in the US versus Lodhi — may also serve to obscure what authority she first got targeted under. That is, if she was targeted under Section 702 but the government didn’t tell her that, then WSJ’s sources would have reason to invent a traditional FISA source of her targeting.

WSJ’s sources are probably also engaging in misdirection with the details offered in this passage.

Investigators began what they call “circling the target,” which means examining the parts of Raphel’s life they could explore without subpoenas or warrants. Sitting in their cubicles on the fourth floor of the FBI’s Washington Field Office, a modern sandstone-colored building on the edge of Chinatown, the agents began to map her network of contacts and search for signs of disloyalty.

One of the first things they looked at was her “metadata”—the electronic traces of who she called or emailed, and also when and for how long. Her metadata showed she was in frequent contact with a host of Pakistan officials that didn’t seem to match what the FBI believed was her rank and role.

After all, the NSA would have already had every bit of metadata reflecting a conversation between Raphel and a targeted official, and the story makes it clear elsewhere a great many of Raphel’s interlocutors were targeted. Indeed, in court filings, the NSA has made it clear that it prioritizes intercepts that reflect a conversation with an American. So the NSA analysts who first alerted the FBI to Raphel’s conversations would have based that alert, in significant part, on precisely that kind of metadata analysis. Sure, the FBI would recollect that metadata, laundering the original source, but the government would have already have analyzed a great deal of it before tipping Raphel to FBI.

Spooks making claims about classified information

Across decades, because NSA and then FBI were collecting intercepts of Raphel’s conversations, she fell afoul of spooks who claimed information she learned on her own could only have come from intelligence agencies and therefore must be classified.

This actually happened twice, with the first time happening almost two decades before she was targeted personally. The first time came in the mid-1990s.

Not long after the amendment passed, Deputy Secretary of State Strobe Talbott sent an aide to Raphel’s office with a disturbing message.

According to officials, the aide told Raphel U.S. spy agencies had intercepted communications in which Pakistani officials suggested that Raphel had revealed sensitive information to them about what the U.S. knew about Pakistan’s nuclear work. U.S. intelligence officials said the information was classified and the disclosure wasn’t authorized.

Raphel denied disclosing too much. She consulted with top officials at the State Department’s internal intelligence branch, who recommended she ask Diplomatic Security—the security and law enforcement arm of the State Department—to investigate the matter.

Diplomatic Security agents interviewed Raphel about the alleged disclosures. They found no evidence of wrongdoing and took no disciplinary action against her.

The story suggests this 1990s incident arose, at least in part, out of animus on the part of spooks over her close ties and seeming empathy with the Pakistanis. The inquiry into her communications led her to keep records of her conversations, which she then took home with her when she first retired from State in 2004. When the FBI did a sneak and peek warrant on her home, they found these records and considered them mishandled classified information.

The CIA increasingly claimed readily available information belonged exclusively to them after Cameron Munter started objecting to drone strikes.

After Cameron Munter took over as the U.S. ambassador to Pakistan in 2010, the competing forces of intelligence and diplomacy began to collide. When Munter pushed the CIA to be more “judicious” in its drone strikes in the tribal areas, the CIA’s station chief responded by telling diplomats not to discuss the drone program even in private meetings with senior Pakistani officials. If asked, he told them, they should change the subject.

Senior diplomats in Islamabad knew this was impossible. The drone program came up all the time. There was no way to avoid the topic.

Raphel didn’t know the key details because her Top Secret clearance didn’t include access to the “compartment” that covered the covert program. When her Pakistani contacts complained about the strikes, Raphel told them what other diplomats would say—that the U.S. wouldn’t need to do so many if the Pakistani army did more to rein in militants in the tribal areas, according to people she spoke with.

Unsurprisingly, drone strikes were one of the topics that the FBI latched onto in her conversations with Lodhi, along with rumors of a coup and discussions of negotiations with the Taliban. Raphel was learning of such information independent of spy sources, yet because it replicated the information learned via spy sources, they claimed it was highly classified.

As the agents listened to the back-and-forth, they would check with U.S. intelligence officials to see if the topics which Raphel discussed with Lodhi— drones, coups and reconciliation talks with the Taliban—were classified. They were repeatedly told that yes, they were.

[snip]

During her visit, Raphel was in regular phone contact with Lodhi, who invited her to come to her home library to talk privately over tea. Officials briefed on the investigation said the information they exchanged during the trip about the prospects of a coup was similar to what U.S. spy agencies were picking up—the same kind of information that intelligence officials were putting in the President’s Daily Brief.

This is, of course, the same thing that happened with some, though not all, of Hillary’s emails (and unsurprisingly, some of Raphel’s communications were shared via aides with Hillary): the CIA claimed that they owned such information, and as such, any discussion outside of secure channels must be evidence of sharing classified information. In both cases, the information was readily available elsewhere.

Particularly when exacerbated by turf sensitivities and jealousy over Raphel’s access to top Pakistani officials, however, this can be a lethal combination. The CIA gets to criminalize officials for sharing information it deems its exclusive purview, even if those officials discovered the information independently.

The WSJ tells a story about the double edged sword of America’s dragnet: the degree to which it can implicate honest people because it captures so much, as well as the gaps in knowledge that result from overdependence on SIGINT.

This is a striking article in the WaPo. It deals extensively with setbacks rebels in Syria have already suffered at the hand of Russia’s campaign. But it bears this headline, as if Trump’s administration, not Russian intervention (and Obama’s mixed commitment), is the key change.

Fearing abandonment by Trump, CIA-backed rebels in Syria mull alternatives

As I said, the story provides plenty of evidence the real change here stems from Russian involvement, not Trump’s election. But Trump’s election provides a way for a bunch of people to issue threats about what rebels might do in response to their fading fortunes.

The story quotes some anonymous US officials which likely includes Adam Schiff, who is also quoted by name, as well as an anonymous “U.S.-vetted rebel commander” who apparently speaks for the thousands the article claims to represent, and Qatar’s foreign minister Mohammed bin Abdulrahman Jassim al-Thani, suggesting that if rebels aren’t helped more America’s alliance with the Gulf States may be in trouble. It also lays out what Trump’s incoming team, including Mike Flynn and James Mattis, might feel about how a Syrian win would help Iran.

I’m most interested in this part of the article, in which a single US official lays out a certain narrative about the US backed rebels — basically pretending that the covert program has worked.

The possibility of cutting loose opposition groups it has vetted, trained and armed would be a jolt to a CIA already unsettled by the low opinion of U.S. intelligence capabilities that Trump had expressed during his presidential campaign.

From a slow and disorganized start, the opposition “accomplished many of the goals the U.S. hoped for,” including their development into a credible fighting force that showed signs of pressuring Assad into negotiations, had Russia not begun bombing and Iran stepped up its presence on the ground, said one of several U.S. officials who discussed the situation on the condition of anonymity because they were not authorized to speak publicly.

The United States estimates that there are 50,000 or more fighters it calls “moderate opposition,” concentrated in the northwest province of Idlib, in Aleppo and in smaller pockets throughout western and southern Syria, and that they are not likely to give up.

“They’ve been fighting for years, and they’ve managed to survive,” the U.S. official said. “Their opposition to Assad is not going to fade away.”

Not only does this passage far overstate the success of US efforts, but it — like Qatar’s foreign minister — threatens that these armed men won’t go away if the US backs Assad.

No matter what you think of US efforts in Syria, this kind of narrative from the people who’ve backed an unsuccessful covert program is fairly disturbing, as if even the US officials in the story are siding with the more explicit threats from Qatar against the US.

Yes, if Trump really remains committed to his promised partnership with Russia (assuming he and the nutjobs he has hired can manage that relationship, which I doubt), the rebels will side with Qatar (and the Saudis and who knows what Erdogan will do?) against Assad — which has basically been what they’ve been doing all this time anyway. Yes, if that happens, the US will lose its leverage over Qatar, with potentially dangerous consequences.

But this sounds awfully close to Americans turning against American policy, no matter how untutored Trump is.

During the uproar over Jim Comey’s role in the Hillary email investigation, a lot of commentators figured it’d all come out in an Inspector General report. But as I noted, DOJ exempts its lawyers from normal kind of oversight, subjecting them instead to Office of Professional Responsibility investigations without statutory independence. The problem has been debated at least since 2007, but Congress squelched efforts to change it in 2008. That, helped by the interference of the now-deceased David Margolis, was how John Yoo got off after writing shoddy memos authorizing torture.

Last month, DOJ’s IG released its yearly review of top management challenges. And, as Michael Horowitz’s predecessor Glenn Fine had done before him, he made a bid for being able to review the conduct of DOJ’s lawyers. The report argues that the oversight for lawyers should be the same as it is for agents.

The OIG, however, does not have authority to investigate allegations of misconduct against Department attorneys when the allegations are related to their work as lawyers. Those allegations fall under the exclusive jurisdiction of the Department’s Office of Professional Responsibility. The OIG has long believed that there is no principled basis for this continued limitation on our jurisdiction, and no reason to treat the investigation of misconduct by prosecutors differently than misconduct by agents. Under the current system, misconduct allegations against agents are handled by a statutorily independent OIG, while misconduct allegations against prosecutors are handled by a Department component that lacks statutory independence and whose leadership is both appointed by and removable by the Department’s leadership.

As Horowitz has done with IG statutory independence with respect to accessing evidence, the report focuses on bills to address the problem.

Bipartisan bills pending in both the U.S. House of Representatives and the U.S. Senate would remove this limitation on the OIG’s jurisdiction. The legislation, as now proposed, would allow the OIG to investigate these important matters, where appropriate, with the independence and transparency that is the touchstone of all of the OIG’s work, thereby providing the public with confidence regarding the handling of these matters. The Department’s attorneys should be held to the same standards of oversight as other Department components, and the OIG should have oversight over all Department employees, just like every other OIG.

Most interesting, however, is the way that DOJ claimed this long-established problem doesn’t exist. Unbelievably, “the Department” claimed that OPR has the same independence as OIG.

In response to a draft of this report, the Department questioned our position that the OIG should have the same authority as every other federal Inspector General to review allegations of misconduct by Department attorneys in connection with their work as lawyers. Among other things, the Department took issue with our description of OPR’s relative lack of independence as compared to the OIG by asserting that (1) OPR’s Counsel “remains unchanged with successive Attorneys General and presidential administrations,” (2) the OIG has not “criticized OPR’s work, the thoroughness of its investigations, or the soundness of its findings,” and (3) the OIG has not “identified a single OPR investigation that failed to appropriately hold accountable . . . Department attorneys.”

The report calls bullshit on the claim that the department hasn’t replaced OPR officials, noting that Holder did replace OPR Counsel Marshall Jarret in 2009 in the midst of the Ted Stevens scandal (Jarret was also backing off promises he would make the results of the Yoo investigation with Congress).

On the first point, the same could be said of supervisory attorneys throughout the Department and, in fact, contrary to the Department’s claim with regard to OPR, in April 2009, less than 4 months after the last change in presidential administrations, the new Attorney General replaced the OPR Counsel without any public explanation.

Holder actually replaced the OPR Counsel one more time, in 2011.

The report goes on to note that we can’t assess OPR’s work because, unlike most IG Reports, it is not public.

On the second and third points, neither the OIG nor the public are in a position to fully assess the thoroughness and soundness of OPR’s work precisely because OPR does not disclose sufficient information to allow for such an assessment.

The report then lists off a bunch of people — including the judge in the Ted Stevens case, Emmet Sullivan — who have complained about OPR’s work.

However, federal judges, the American Bar Association, and the Project on Government Oversight (POGO) have all questioned the level of independence, transparency, and accountability of OPR. See, e.g., Order by Hon. Emmet G. Sullivan Appointing Henry F. Schuelke Special Counsel in United States v. Stevens, No. 08-cr-231 (Apr. 7, 2009), p. 46. (“the events and allegations in this case are too serious and too numerous to be left to an internal investigation that has no outside accountability”) ; “Criminal Law 2.0,” by Hon. Alex Kozinski, 44 Geo. L.J. Ann. Rev. Crim. Proc. iii (2015); ABA Recommendation urging the Department of Justice to release “as much information regarding individual investigations as possible,” Aug. 9-10, 2010, available here; “Hundreds of Justice Department Attorneys Violated Professional Rules, Laws, or Ethical Standards: Administration Won’t Name Offending Prosecutors,” Report by POGO, March 13, 2014, available here.

The report ends with a reassertion that the Inspector General Act requires far more of inspectors general than OPR provides.

Moreover, whatever the soundness of OPR’s work, the Department’s efforts to equate OPR’s independence and transparency with that of the OIG flies directly in the face of the Inspector General Act, which fundamentally exists to create entities with an enhanced degree of independence and transparency so that they can credibly conduct investigations and reviews where there would be an expectation that more independent and transparent oversight is required. That is the very reason why Attorney General Ashcroft expanded the OIG’s jurisdiction in 2001 to include the FBI and the DEA, and there simply is no reason why Department attorneys continue to be protected from the possibility that their conduct may warrant independent review by the OIG in appropriate cases.

Frankly, there is evidence that OPR’s investigation has been inadequate, starting with both the Yoo and the Stevens investigations.

But there have also been a slew of cases of prosecutors withholding evidence from defendants, cases that ought to merit some real review (to say nothing of the Clinton email case). For example, just this week, Ross Ulbricht’s lawyers revealed they had discovered evidence of a third corrupt agent, the evidence of which had been withheld from the defense team.

There’s no hint of why Horowitz is making this point now. But there sure are a number of cases that might elicit actual independent review.

As I’ve noted in bmaz’ posts opposing Jill Stein’s recounts in WI, MI, and PA (comment, comment), I did not start out opposed to the recounts. While I agree that the recounts are unlikely to change the outcome, I think getting in the habit of doing unexpected recounts is a necessary thing to ensure the integrity of the counting software.

I got more interested in the recount when I learned former MI Democratic Chair Mark Brewer was representing Stein in her challenge in MI. Brewer is a serious lawyer and a numbers genius. His involvement gave me confidence that it will be legally competent.

I also think the recount may help explain the big jump in undervotes this year. As Charles Gaba demonstrated, ballots in this year’s presidential election showed far more ballots in which there was no vote cast for President than in previous years.

While I think the historic unpopularity of the candidates may explain this, such an explanation would be more convincing if MI had had an important statewide election this year that might explain why people took the trouble to vote but didn’t vote for President. But we didn’t — we’re on the off-cycle for Senator, for example.

Add in the state’s effort to eliminate straight ticket voting and the way that voters are supposed to be able to vote a straight ticket but with one counter-party vote, along with Hillary’s underperformance in swing suburbs, and I think it possible the recount may show something of interest.

Plus, Trump won by less than 11,000 votes, so it wouldn’t take too much to flip the outcome.

Then I saw the reaction of both parties. Both the Republicans and Democrats are taking this recount more seriously than I expected, leading me to believe that both parties have some unstated reason to believe this recount may reveal problems with the election. There were also a few other details about the actions of GOP Secretary of State Ruth Johnson that I have questions about. So my interest grew.

But I was always a bit lukewarm on the recount, at least considering the objections of people like bmaz.

Until now.

Michigan Attorney General Bill Schuette just filed a motion to have the courts force the Board of Canvassers not to count the vote. Schuette cited the risk that the recount might not be finished within the safe harbor period (though any delay and lawsuit just makes that more likely). But he also claimed the recount might cost the state “millions of dollars.”

Schuette’s intervention is, by itself, enough to convince me the recount is a good thing. The man is always on the wrong side of history. Plus, his choice to be on the wrong side of history has itself cost Michigan millions of dollars. We know his efforts to prevent loving couples from marrying cost the state almost $2 million. I don’t think we yet know the full cost of his failed effort to prevent Michiganders from voting a straight ticket, which he also argued all the way to the Supreme Court.

Bill Schuette should not attempt to argue that a legal challenge will cost the state too much money with a straight face, because he has already squandered millions of our tax dollars on his own challenges.

Meanwhile, Schuette is issuing this challenge even as his party is in the middle of rushing through a strict new voter suppression bill that — because it was written to avoid a poll tax challenge — will cost the state undetermined funds, all to combat a voter fraud problem that doesn’t exist. The MI GOP is arguing that the costs of suppressing the vote are worthwhile, while costs of counting it are not.

Finally, all this is taking place even as the MI legislature is rushing through $300 million in new tax cuts for businesses. If we can’t afford to recount the vote, we surely can’t afford to give businesses new giveaways.

So all that has convinced me. If Schuette is opposed to this recount — and if he wants to make up transparently bullshit excuses about costs to make that argument — then I’m now an enthusiastic supporter of it.

With the news of Donald Trump’s deal to keep 1,100 of 2,100 Carrier jobs in Indiana, coastal elites appear to have just discovered tax-supported Midwestern manufacturing jobs, even as they continue to ignore tax-supported defense contractor (manufacturing) jobs.

As best as I can understand it from the details released so far, the deal may be best understood as a mix of typical state-level efforts combined with the leverage of a federal level effort. Over 25% of the jobs saved will be engineer and headquarter jobs — important for retaining technological capacity in the US, but not a big help to blue collar workers.

The package is reportedly substantially similar to one IN Governor and soon to be Vice President Mike Pence already offered.

UTC agreed to retain approximately 800 manufacturing jobs at the Indiana plant that had been slated to move to Mexico, as well as another 300 engineering and headquarters jobs. In return, the company will get roughly $700,000 a year for a period of years in state tax incentives.

Some 1,300 jobs will still go to Mexico, which includes 600 Carrier employees, plus 700 workers from UTEC Controls in Huntington, Ind.

That has commentators on all sides — from economists to Bernie Sanders — complaining that Trump just made it more likely companies will demand bribes to retain US based jobs in the future.

That’s of course a fantasy. Companies already demand bribes to keep jobs in particular states (or in the US generally).* This is just a typical deal — indeed, it was a typical failed deal until the guy making it became Vice President-elect thanks in part to his new boss’ running on making a better deal.

The way companies arbitrage states and countries to get the best deal to preserve jobs is not a good thing — at all. But it’s one that must be solved at a systematic level, a point Jared Bernstein made in the WaPo.

This sort of production cannot be sustained as some sort of non-competitive museum model, where we push back on trade-induced job losses through tax breaks and government contracts. True, governors and mayors commonly dole out such goodies as bribes to factories to settle in one state vs. another, but that’s a zero-sum game, and often ends up as a big waste of precious resources. Meanwhile, it’s also a game of corporate whack-a-mole. While Trump et al. were brokering this deal, nearby factories were packing up for Mexico.

As I recently wrote, we’ve generally failed to even try to implement a solution to this problem of global competition eroding our manufacturing base. A systemic approach, as opposed to what Trump is up to here, will require reducing our trade deficit in manufactured goods by pushing back against countries that manage their currencies to make our exports expensive and their exports cheap. It will require investments in advanced manufacturing so we can close the wage gap with productivity. It will require systemic state and older city economic development of the type economist Tim Bartik describes here and here. It may require direct job creation to employ displaced workers when none of the above comes through.

The key twist on this story, however, is that Carrier was convinced to deal when Trump started threatening that federal contracts with Carrier’s parent company, United Technologies, might be at risk if they didn’t.

John Mutz, a former Indiana lieutenant governor who sits on the [Indiana Economic Development Corporation’s] 12-member board, told POLITICO that Carrier turned down a previous offer from IEDC before the election. He said he thinks the choice is driven by concerns from Carrier’s parent company, United Technologies, that it could lose a portion of its roughly $6.7 billion in federal contracts.

“This deal is no different than other deals that we put together at the IEDC to retain jobs, but the fact is that the difference is that United Technologies depends on the federal government for lots of business,” Mutz said.

Kevin Drum — while citing a lot of health care and finance jobs (both heavily supported by federal policy) as the true job leaders in Indianapolis — considers the pressure on United Technologies to be an outrage.

This would be a massive abuse of power, of course, but who wants to take a chance that Trump cares? Probably not UT.

I actually think the deal ought to elicit a more interesting discussion of industrial policy — the kind of systematic intervention that Bernstein talks about that might actually do something about the hollowing out of America’s manufacturing base.

Such a discussion has long been forbidden in American political discourse, in part because the same economists pretending such whack-a-mole bribes haven’t become the norm in American political life also pretend that an unfettered “free” market (always defined to include mobile capital and goods, but not labor) will benefit everyone.

Yet even during the period when any discussion of industrial policy has been forbidden, we’ve had one.

Our industrial policy consists of massive US investments in manufacturing war and intelligence toys that we then sell to foreign governments. When done with Middle Eastern petro-states like Saudi Arabia, that trade goes a long way to equalize our foreign trade deficit, but it contributes directly to instability that then requires us to intervene and build more war toys. That investment in war leads, in turn, to a disinvestment in publicly funded infrastructure that could also provide jobs in the heartland.

The most obvious symbol of our unacknowledged industrial policy is the F-35, a trillion dollar federal investment for a plane that has yet to meet basic requirements, one beset by years of rework. As it happens, one of many causes of problems with the F-35 is big reliability problems with engines used in the plane. That makes those faulty engines, made by United Technologies subsidiary Pratt & Whitney, just another direct taxpayer investment in UTC jobs. Yet reliability problems didn’t prevent P&W from getting another contract for the F-35 engine earlier this year. Nor did P & W’s provision of attack helicopter technology to the Chinese via a Canadian subsidiary.

Our current industrial policy, you see, feeds so few prime contractors that they are virtually immune from the competition that might pressure them to deliver quality goods. Which leads, in turn, to rework, contract overruns, and contractors walking out of the building with our government’s most closely guarded secrets, all with no consequences.

Let’s stop pretending (as this piece does) that America’s manufacturing, increasingly dominated by the production of war toys, exists in a a real market, shall we?

Once we do that, we might begin to address the diseases of our defense contracting and — more importantly — rediscover the value of investing in other kinds of manufacturing that our country needs to have. Justify these investments by some future defense need, I don’t give a damn (though there are military officials who will soberly explain the risks of the hollowing out of our manufacturing base). But invest in the technologies the US needs to stay competitive and retain a manufacturing base.

There was a brief moment when Obama tried to do this by investing in battery factories in MI and other Rust Belt states, an investment justified because the US lagged so far behind South Korea on this critical technology. The investments were badly executed, and then later undermined by the KORUS trade deal. Republicans made them toxic with the Solyndra faux scandal. And so, rather than siting one after another killer app in locales whose older economies had failed, such efforts largely ended.

Imagine how the climate change negotiations might have changed, though, if they came with key investments in alternative energies in coal mining areas of West Virginia and Kentucky?

But this Carrier deal — no matter how much of a gimmick — should be an opportunity to shift the discussion. Trump (and Pence) just federalized the kind of deal every state makes out of desperation, pitting states against each other and Mexico and China. If they can do that, in part by leveraging federal contracting, then they can also pursue an honest industrial policy, one not dependent on selling war toys to our belligerent authoritarian friends overseas.

I doubt Trump will do that. But his Carrier deal ought to at least invite a debate about it.

Update: Added a link to the deferred prosecution for when Pratt & Whitney dodged export restrictions to provide technology to China.

Update: The other day Bloomberg did a review of the Department of Energy’s Loan Program Office, which funded Solyndra (but which, as was covered at the time, actually dates to W’s Administration) actually has been very successful.

Not only has the program’s loan portfolio generated about $1.65 billion in interest payments to date, its mission to support major energy projects fits into Trump’s goal of stimulating investment in the U.S., said Jonathan Silver, a former head of the loan programs office.

“The President-elect was talking directly about significant investments in infrastructure,” Silver said in an interview Monday at Bloomberg headquarters in New York. The program is intended to support not just clean-energy projects, but also industries Trump championed during the campaign, including coal, among other advanced fossil fuels. “This is infrastructure. It doesn’t get any more infrastructure-ish than this.”

The office dates to the George W. Bush administration and was designed to offer loan guarantees to innovative energy projects that struggle to get financing from commercial and investment banks. In some cases it also approved loans funded through the Federal Financing Bank.

It supported the first big solar farms in the country and helped commercialize solar-thermal systems, advanced nuclear designs, molten-salt storage and other technologies. It has yet to finance an advanced fossil-fuel project.

*Disclosure: My spouse works for a manufacturing company often touted, locally and nationally, as a huge success; it receives state tax credits.

I keep thinking back to this story, in which people in the immediate vicinity of Ash Carter and James Clapper told Ellen Nakashima that they had wanted to fire Admiral Mike Rogers, the dual hatted head of CyberCommand and NSA, in October. The sexy reason given for firing Rogers — one apparently driven by Clapper — is that NSA continued to leak critical documents after Rogers was brought in in the wake of the Snowden leaks.

But further down in the story, a description of why Carter wanted him fired appears. Carter’s angry because Rogers’ offensive hackers had not, up until around the period he recommended to Obama Rogers be fired, succeeded in sabotaging ISIS’ networks.

Rogers has not impressed Carter with his handling of U.S. Cyber Command’s cyberoffensive against the Islamic State. Over the past year or so, the command’s operations against the terrorist group’s networks in Syria and Iraq have not borne much fruit, officials said. In the past month, military hackers have been successful at disrupting some Islamic State networks, but it was the first time they had done that, the officials said.

Nakashima presents this in the context of the decision to split CYBERCOM from NSA and — click through to read that part further down in the piece — with Rogers’ decision to merge NSA’s Information Assurance Directorate (its defensive wing) with the offensive spying unit.

The expectation had been that Rogers would be replaced before the Nov. 8 election, but as part of an announcement about the change in leadership structure at the NSA and Cyber Command, a second administration official said.

“It was going to be part of a full package,” the official said. “The idea was not for any kind of public firing.” In any case, Rogers’s term at the NSA and Cyber Command is due to end in the spring, officials said.

The president would then appoint an acting NSA director, enabling his successor to nominate their own person. But a key lawmaker, Sen. John McCain (R-Ariz.), the chairman of the Senate Armed Services Committee, threatened to block any such nominee if the White House proceeded with the plan to split the leadership at the NSA and Cyber Command.

I was always in favor of splitting these entities — CYBERCOM, NSA, and IAD — into three, because I believed that was one of the only ways we’d get a robust defense. Until then, everything will be subordinated to offensive interests. But Nakashima’s article focuses on the other split, CYBERCOM and NSA, describing them as fundamentally different missions.

The rationale for splitting what is called the “dual-hat” arrangement is that the agencies’ missions are fundamentally different, that the nation’s cyberspies and military hackers should not be competing to use the same networks, and that the job of leading both organizations is too big for one person.

They are separate missions: CYBERCOM’s job is to sabotage things, NSA’s job is to collect information. That is made clear by the example that apparently irks Carter: CYBERCOM wasn’t sabotaging ISIS like he wanted.

It is not explicit here, but the suggestion is that CYBERCOM was not sabotaging ISIS because someone decided it was more important to collect information on it. That sounds like an innocent enough trade-off until you consider CIA’s prioritization for overthrowing Assad over eliminating ISIS, and its long willingness to overlook that its trained fighters were fighting with al Qaeda and sometimes even ISIS. Add in DOD’s abject failure at training their own rebels, such that the job reverted to CIA along with all the questionably loyalties in that agency.

There was a similar debate way back in 2010, when NSA and CIA and GCHQ were fighting about what to do with Inspire magazine: sabotage it (DOD’s preference, based on the understanding it might get people killed), tamper with it (GCHQ’s cupcake recipe), or use it to information gather (almost certainly with the help of NSA, tracking the metadata associated with the magazine). At the time, that was a relatively minor turf battle (though perhaps hinting at a bigger betrayed by DOD’s inability to kill Anwar al-Alwaki and CIA’s subsequent success as soon as it had built its own drone targeting base in Saudi Arabia).

This one, however, is bigger. Syria is a clusterfuck, and different people in different corners of the government have different priorities about whether Assad needs to go before we can get rid of ISIS. McCain is clearly on the side of ousting Assad, which may be another reason — beyond just turf battles — why he opposed the CYBERCOM/NSA split.

Add in the quickness with which Devin Nunes, Donald Trump transition team member, accused Nakashima’s sources of leaking classified information. The stuff about Rogers probably wasn’t classified (in any case, Carter and Clapper would have been the original classification authorities on that information). But the fact that we only just moved from collecting intelligence on ISIS to sabotaging them likely is.

CYBERCOM and NSA do have potentially conflicting missions. And it sounds like that was made abundantly clear as Rogers chose to prioritize intelligence gathering on ISIS over doing things that might help to kill them.

A lot of people are bitching about the sheer snottiness of this passage in a Vox piece arguing that fighting for $15 minimum wage will lead, instead, to the automation of those minimum wage jobs.

The McDonald’s experiment with touchscreen ordering systems illustrates the potential problem with making high minimum wages effective across big states like California and New York — both of which passed minimum wage increases this year. If McDonald’s automates its locations in Manhattan, San Francisco, and Silicon Valley, displaced workers shouldn’t have too much trouble finding alternative work in the booming economies of these cities as barbers, servers at full-service restaurants, nannies, and so forth. With lots of wealthy customers around, there’s a robust demand for unskilled service workers there.

But the outlook might not be so rosy in cities like Fresno, California, or Rochester, New York, where the economy is not booming and average wages are much lower. If a $15 minimum wage causes fast-food jobs to be automated in these cities, workers may not be able to find alternate work. A law designed to put more money in workers’ pockets could wind up putting a lot less money in their pockets instead.

It’s easy to get people fired up about an alliterative slogan like “Fight for $15.” But alliteration isn’t necessarily a good way to choose a policy goal. The implicit idea here — that people everywhere should get the same minimum wage whether they live in a booming, expensive metropolis or a struggling town with a low cost of living — doesn’t make a lot of sense. [my emphasis]

The Fight for 15 has more to do with what is a living wage than poetic devices. Indeed, even $15 actually doesn’t pay enough to rent an apartment, even in the hinterlands.

But I’m just as disgusted by the suggestion that if people live in booming economies, they can get jobs making $15 an hour as a barber or a restaurant server.

They also could, with some prior experience, apply to be Vox’s “race and identities” writing fellow for … $15 an hour.

And that’s to live in NYC or DC, cities where $15 an hour is well below a living wage.

Maybe Vox just plans on automating their race coverage if no one will take this job?

Update: Vox’s Managing Editor just announced on Twitter they will be increasing the rate for this and other fellowships. Good!

Ron Wyden, five other Democrats, and Dem caucusing Independent Angus King just wrote Obama a cryptic letter. The entire body of the letter reads:

We believe there is additional information concerning the Russian Government and the U.S. election that should be declassified and released to the public. We are conveying specifics through classified channels.

Thank you for your attention to this important matter.

Aside from the fact that this suggests (as Wyden’s cryptic letters always d0) there is something meaty that we really ought to know, I find the list of signers rather curious. In addition to Wyden, the following Senators signed the letter:

• Jack Reed
• Mark Warner
• Barb Mikulski
• Martin Heinrich
• Angus King
• Mazie Hirono

That is, every Democratic SSCI member except current Chair Dianne Feinstein, plus Senate Armed Services Chair Jack Reed, signed the letter. So every Democrat except DiFi and Majority Leader Harry Reid signed the letter, suggesting it is something that got briefed to the full Senate Intelligence Committee as well as the Ranking Members of SASC (the latter of which suggests NSA or CYBERCOM may be involved).

I’m as interested in the fact that DiFi and Reid didn’t sign as that the others did sign. It can’t be that Reid is retiring and DiFi is heading to SJC (it’s still unclear whether she’ll remain on SSCI or not). After all, Mikulski is retiring as well.

Plus, Harry Reid wrote a far more explicit letter last month to Jim Comey — apparently following up on a non-public letter send months earlier — alluding to direct coordination between Trump and Russia.

In my communications with you and other top officials in the national security community, it has become clear that you possess explosive information about close ties and coordination between Donald Trump, his top advisors, and the Russian government – a foreign interest openly hostile to the United States, which Trump praises at every opportunity. The public has a right to know this information. I wrote to you months ago calling for this information to be released to the public. There is no danger to American interests from releasing it. And yet, you continue to resist calls to inform the public of this critical information.

Finally, what to make of the fact that not even John McCain signed onto this letter? Reed’s inclusion makes it clear that McCain, too, must have been briefed. He has been outspoken about Trump’s moves to cozy up to Putin. If he has seen — and objects to — such coordination, why not sign onto this letter and give it the patina of bipartisanship?