Admitted Former Foreign Agent Mike Flynn Demands More Classified Information

According to Mike Flynn’s Fox News lawyer, Sidney Powell, to “defend” himself in a guilty plea he has already sworn to twice under oath, he needs to obtain unredacted versions of a Comey memo showing he was not targeted with a FISA warrant and a FISA order showing that people who were targeted with FISA warrants might have been improperly scrutinized while they were overseas.

That’s just part of the batshittery included in a request for Brady material submitted to Emmet Sullivan last Friday.

The motion is 19 pages, most of which speaks in gross generalities about Brady obligations or repeats Ted Stevens Ted Stevens Ted Stevens over and over again, apparently a bid to convince Judge Emmet Sullivan that this case has been subject to the same kind of abuse that the late Senator’s was.

After several readings, I’ve discovered that Powell does make an argument in the motion: that if the government had provided Flynn with every damning detail it has on Peter Strzok, Flynn might not have pled guilty to lying to Strzok about his conversations with Russian Ambassador Sergey Kislyak or admitted that he used a kickback system to hide that he was a paid agent of Turkey while getting Top Secret briefings with candidate Trump.

They affirmatively suppressed evidence (hiding Brady material) that destroyed the credibility of their primary witness, impugned their entire case against Mr. Flynn, while at the same time putting excruciating pressure on him to enter his guilty plea and manipulating or controlling the press to their advantage to extort that plea. They continued to hide that exculpatory information for months—in direct contravention of this Court’s Order—and they continue to suppress exculpatory information to this day.

One of the things Powell argues Flynn should have received is unredacted copies of every text Strzok sent Lisa Page.

The government’s most stunning suppression of evidence is perhaps the text messages of Peter Srzok and Lisa Page. In July of 2017, (now over two years ago), the Inspector General of the Department of Justice advised Special Counsel of the extreme bias in the now infamous text messages of these two FBI employees. Mr. Van Grack did not produce a single text messages to the defense until March 13, 2018, when he gave them a link to then-publicly available messages. 14

Mr. Van Grack and Ms. Ahmad, among other things, did not disclose that FBI Agent Strzok had been fired from the Special Counsel team as its lead agent almost six months earlier because of his relationship with Deputy Director McCabe’s Counsel—who had also been on the Special Counsel team—and because of their text messages and conduct. One would think that more than a significant subset of those messages had to have been shared by the Inspector General of the Department of Justice with Special Counsel to warrant such a high-level and immediate personnel change. Indeed, Ms. Page left the Department of Justice because of her conduct, and Agent Strzok was terminated from the FBI because of it.

14 There have been additional belated productions. Each time more text messages are found, produced, or unredacted, there is more evidence of the corruption of those two agents. John Bowden, FBI Agent in Texts: ‘We’ll Stop’ Trump From Becoming President, THE HILL (June 14, 2018), https://thehill.com/policy/national-security/392284-fbi-agent-in-texts-well-stop-trumpfrom-becoming-president; see also U.S. Dept. of Justice, Office of the Inspector General, A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election. Redacted Ed. Washington, D.C. (2018) (https://www.justice.gov/file/1071991/download). But the situation is even worse. After being notified by the Inspector General of the Department of Justice of the extraordinary text communications between Strzok and Page (more than 50,000 texts) and of their personal relationship, which further compromised them, Special Counsel and DOJ destroyed their cell phones. U.S. Dept. of Justice, Office of the Inspector General, Report of Investigation: Recovery of Text Messages From Certain FBI Mobile Devices, Redacted Ed. Washington, D.C. (2018), https://www.justice.gov/file/1071991/download. This is why our Motion also requests a preservation order like the one this Court entered in the Stevens case.

As is true of most of this filing, Powell gets some facts wrong here. The public record says that as soon as Mueller got the warning from Michael Horowitz about the texts, he started moving Strzok off the team. He didn’t need to see the texts, that they were there was issue enough. And Lisa Page remained at FBI until May 2018, even after the texts were released to the public.

And while, if Sullivan had taken Flynn’s initial guilty plea rather than Rudy Contreras, one might argue that Van Grack should have alerted Flynn’s lawyer Rob Kelner of the existence of the Strzok-Page texts, DOJ was not required to turn them over before Flynn’s guilty plea. Moreover, the problem with claiming that withholding the Strzok-Page texts prevented Flynn from taking them into account, is that they were made public the say day Emmet Sullivan issued his Brady order and Flynn effectively pled guilty again a year after they were released, in sworn statements where he also reiterated his satisfaction with his attorney, Kelner. Any texts suggesting bias had long been released; what remains redacted surely pertains either to their genuine privacy or to other counterintelligence investigations.

Finally, at least as far as public evidence goes, Strzok was, if anything, favorable to Flynn for the period he was part of the investigation. He found Flynn credible in the interview, and four months later didn’t think anything would come of the Mueller investigation. So the available evidence, at least, shows that Flynn was treated well by Strzok.

The filing also complains about information just turned over on August 16.

For example, just two weeks ago, Mr. Van Grack, Ms. Curtis, and Ms. Ballantine produced 330 pages of documents with an abject denial the production included any Brady material.6 Yet that production reveals significant Brady evidence that we include and discuss in our accompanying Motion (filed under seal because the prosecutors produced it under the Protective Order).

6 “[T]he government makes this production to you as a courtesy and not because production of this information is required by either Brady v. Maryland, 373 U.S. 83 (1963), or the Court’s Standing Order dated February 16, 2018.” Letter from Mr. Brandon Van Grack to Sidney K. Powell, Aug. 16, 2019.

Given the timing, it may well consist of the unclassified materials showing that Turkey (and possibly Russia) believed Flynn to be an easy mark and expected to be able to manipulate Trump through him. I await either the unsealing of Powell’s sealed filing or the government response to see if her complaints are any more worthy than this filing.

That’s unlikely. Because the rest of her memo makes a slew of claims that suggest she’s either so badly stuck inside the Fox bubble she doesn’t understand what the documents in question actually say, or doesn’t care. In her demand for other documents that won’t help Flynn she,

  • Misstates the seniority of Bruce Ohr
  • Falsely claims Bruce Ohr continued to serve as a back channel for Steele intelligence when in fact he was providing evidence to Bill Priestap about its shortcomings (whom the filing also impugns)
  • Suggests the Ohr memos pertain to Flynn; none of the ones released so far have the slightest bit to do with Flynn
  • Falsely suggests that Andrew Weissmann was in charge of the Flynn prosecution
  • Claims that Weissman and Zainab Ahmad had multiple meetings with Ohr when the only known meeting with him took place in fall 2016, before Flynn committed the crimes he pled guilty to; the meeting likely pertained to Paul Manafort, not Flynn
  • Includes a complaint from a Flynn associate that pertains to alleged DOD misconduct (under Trump) to suggest DOJ prosecutors are corrupt

In short, Powell takes all the random conspiracy theories about the investigation and throws them in a legal filing without even fact-checking them against the official documents, or even, at times, the frothy right propaganda outlets that first made the allegations.

Things get far weirder when it comes to her demands relating to FISA information. In a bid to claim this is all very pressing, Powell demands she get an unredacted version of the Comey IG Report.

Since our initial request to the Department by confidential letter dated June 6, 2019, we have identified additional documents that we specify in our Motion. Now, with the impending and just-released reports of the Inspector General, there may be more. The Report of the Inspector General regarding James Comey’s memos and leaks is replete with references to Mr. Flynn, and some information is redacted. There may also be a separate classified section relevant to Mr. Flynn. U.S. Dept. of Justice, Office of the Inspector General, Report of Investigation of Former Federal Bureau of Investigation Director James Comey’s Disclosure of Sensitive Investigative Information and Handling of Certain Memoranda, Oversight and Review Division Report 19-02 (Aug. 29, 2019), https://oig.justice.gov/reports/2019/o1902.pdf

The only redacted bits in the report are in Comey’s memos themselves — the stuff that the frothy right is currently claiming was so classified that Comey should have been prosecuted for leaving them in a SCIF at work. Along with unclassified sections quoting Trump saying he has “serious reservations about Mike Flynn’s judgment” (the redacted bit explains that the President was pissed that Flynn didn’t tell him about Putin’s congratulatory call right away) and “he had other concerns about Flynn,” there’s this section that redacts the answer to Reince Priebus’ question about whether the FBI has a FISA order on Flynn (PDF 74).

The answer, though, is almost certainly no. Even if the FBI obtained one later, there was no way that Comey would have told Priebus that Flynn was targeted; the FBI became more concerned about Flynn after this February 8 conversation, in part because of his continued lies about his work with Turkey.

Flynn’s team also demands an unredacted copy of this 2017 FISA 702 Rosemary Collyer opinion, though Powell’s understanding of it seems to based off Sara Carter’s egregiously erroneous reporting on it (here’s my analysis of the opinion).

Judge Rosemary Collyer, Chief Judge of the FISA court, has already found serious Fourth Amendment violations by the FBI in areas that likely also involve their actions against Mr. Flynn. Much of the NSA’s activity is in direct violation of the Fourth Amendment. Not only did the last administration—especially from late 2015 to 2016—dramatically increase its use and abuse of “about queries” in the NSA database, which Judge Collyer has noted was “a very serious Fourth Amendment issue,” it also expanded the distribution of the illegally obtained information among federal agencies.10 Judge Collyer determined that former FBI Director Comey gave illegal unsupervised access to raw NSA data to multiple private contractors. The court also noted that “the improper access granted the [redacted] contractors was apparently in place [redacted] and seems to have been the result of deliberate decision making” including by lawyers.11, 12

10 See also Charlie Savage, NSA Gets More Latitude to Share Intercepted Communications, THE N.Y. TIMES (Jan. 12, 2017) (reporting that Attorney General Loretta Lynch signed new rules for the NSA that permitted the agency to share raw intelligence with sixteen other agencies, thereby increasing the likelihood that personal information would be improperly disclosed), https://www.nytimes.com/2017/01/12/us/politics/nsa-gets-more-latitude-to-share-interceptedcommunications.html; See also Exec. Order No. 12,333, 3 C.F.R. 200 (1982), as amended by Exec. Order No. 13,284, 68 Fed. Reg. 4075 (Jan. 23, 2003).

11 FISC Mem. and Order, p. 19, 87 (Apr. 26, 2017) www.dni.gov/files/documents/icotr/51117/2016_Cert_FISC_Memo_Opin_Order_Apr_2017.pdf (noting that 85% of the queries targeting American citizens were unauthorized and illegal).

12 This classified and heavily redacted opinion is one of the documents for which defense counsel requests a security clearance and access.

As a threshold matter, Powell gets virtually everything about the Collyer memo wrong. Collyer didn’t track any increase in “about” searches (it was one of the problems with her memo, that she didn’t demand new numbers on what NSA was doing). It tracked a greater number of certain kinds of violations than previously known. The violation resulting in the 85% number she cited was on US persons targeted between November 2015 and May 2016, but the violation problem existed going back to 2012, when Flynn was still part of the Deep State. What Collyer called a Fourth Amendment violation involved problems with 704/705b targeting under FISA, which are individualized warrants usually tied to individualized warrants under Title I (that is, the kind of order we know targeted Carter Page), and probably a limited set of terrorism targets. Given that the Comey memo almost certainly hides evidence that Flynn was not targeted under FISA as of February 8, 2017, it means Flynn would have had to be a suspected terrorist to otherwise be affected. Moreover, the NSA claimed to have already fixed the behavioral problem by October 4, 2016, even before Carter Page was targeted. I had raised concerns that the problems might have led to problems with Page’s targeting, but since I’ve raised those concerns with Republicans and we haven’t heard about them, I’m now fairly convinced that didn’t happen.

At least some of the FBI violation — letting contractors access raw FISA information — was discontinued in April 2016, before the opening of the investigation into Trump’s flunkies, and probably all was discontinued by October 4, 2016, when it was reported. One specific violation that Powell references, however, pertains to 702 data, which could not have targeted Flynn.

Crazier still, some of the problems described in the opinion (such as that NSA at first only mitigated the problem on the tool most frequently used to conduct back door searches) cover things that happened on days in late January 2017 when a guy named Mike Flynn was National Security Advisor (see PDF 21).

Powell should take up her complaints with the guy running National Security at the time.

Craziest still, Powell describes data collected under EO 12333 as “illegally obtained information” (Powell correctly notes that the Obama Administration permitted sharing from NSA to other agencies, but that EO would not affect the sharing of FISA information at all). If EO 12333 data, which lifetime intelligence officer Mike Flynn used through his entire career, is illegally obtained, then it means lifetime intelligence officer Mike Flynn broke the law through his entire government career.

Sidney Powell is effectively accusing her client (incorrectly) of violating the law in a motion that attempts to argue he shouldn’t be punished for the laws he has already admitted breaking.

In short, most of the stuff we can check in this motion doesn’t help Flynn, at all.

And at least before Powell submitted this, Emmet Sullivan seemed unimpressed with her claims of abuse.

The government and Flynn also submitted a status report earlier on Friday. In the status report, the government was pretty circumspect. Flynn’s cooperation is done (which is what they said almost a year ago), they’d like to schedule sentencing for October or November, and they’ve complied with everything covered by Brady. Anything classified, like Powell is demanding, would be governed by CIPA and only then discoverable if it is helpful to the defense.

Powell made more demands in the status report, renewing her demand for a security clearance and insisting there are other versions of the Flynn 302.

To sort this out, the government suggested a hearing in early September, but Powell said such a hearing shouldn’t take place for another month (during which time some of the IG reports she’s sure will be helpful will come out).

The parties are unable to reach a joint response on the above topics. Accordingly, our respective responses are set forth separately below. Considering these disagreements, the government respectfully requests that the Court schedule a status conference. Defense counsel suggests that a status conference before 30 days would be too soon, but leaves the scheduling of such, if any, to the discretion of the Court. The government is available on September 4th, 5th, 9th or 10th of 2019, or thereafter as the Court may order. Defense counsel are not available on those specific dates.

Judge Sullivan apparently sided with the government (and scheduled the hearing for a date when Flynn’s attorneys claim to be unable to attend).

Every time Flynn has tried to get cute thus far, it has blown up in his face. And while Sullivan likely doesn’t know this, the timing of this status hearing could be particularly beneficial for the government, as they’ll know whether Judge Anthony Trenga will have thrown out Bijan Kian’s conviction because of the way it was charged before the hearing, something that would make it far more likely for the government to say Flynn’s flip-flop on flipping doesn’t amount to full cooperation.

And this filing isn’t even all that cute, as far as transparent bullshit goes.

There Were Two Dick-Waggings Directed at Iran This Week

By all appearances President Trump casually released highly classified information yesterday, as he has done repeatedly in the past.

Within hours of this tweet, CNBC confirmed that this image comes from one of Trump’s intelligence briefings, which led experts to assume Trump had been careless.

A U.S. defense official told CNBC that the picture in Trump’s tweet, which appeared to be a snapshot of a physical copy of the satellite image, was included in a Friday intelligence briefing.

[snip]

But the quality of the photograph quickly raised the eyebrows of national security experts, who say that images this clear are rarely made public.

“I’m not supposed to see stuff this good. He’s not supposed to share it. I’ve honestly never seen an image this sharp,” said Melissa Hanham, deputy director of the Open Nuclear Network and director of the Datayo Project at the One Earth Future Foundation.

Hanham suspected the shot was taken from a high-altitude aerial vehicle using tracking technology, such as an RC-135S Cobra Ball or a similar aircraft.

“This will have global repercussions,” said Joshua Pollack, a nuclear proliferation expert and editor of the Nonproliferation Review.

“The utter carelessness of it all,” Pollack said. “So reckless.”

Even before the NYT weighed in last night, I had my doubts whether this was reckless, or whether it was a calculated decision to dick-wag over the sabotage of a missile program the Iranians deny.

First, the tweet was almost certainly not written by Trump. It has no grammatical errors or typographical anomalies. It uses technical terms and consists of full sentences.

In other words, the tweet has none of the hallmarks of Trump’s reflexive tweeting. Someone helped him tweet this out.

Then there’s the fact that, earlier this week, the US dick-wagged about another successful operation against Iran, a cyberattack that took out the IRGC database that they were using to target western shipping.

The head of United States Cyber Command, Army Gen. Paul M. Nakasone, describes his strategy as “persistent engagement” against adversaries. Operatives for the United States and for various adversaries are carrying out constant low-level digital attacks, said the senior defense official. The American operations are calibrated to stay well below the threshold of war, the official added.

The strike on the Revolutionary Guards’ intelligence group diminished Iran’s ability to conduct covert attacks, said a senior official.

The United States government obtained intelligence that officials said showed that the Revolutionary Guards were behind the limpet mine attacks that disabled oil tankers in the Gulf in attacks in May and June, although other governments did not directly blame Iran. The military’s Central Command showed some of its evidence against Iran one day before the cyberstrike.

[snip]

The database targeted in the cyberattacks, according to the senior official, helped Tehran choose which tankers to target and where. No tankers have been targeted in significant covert attacks since the June 20 cyberoperation, although Tehran did seize a British tanker in retaliation for the detention of one of its own vessels.

Though the effects of the June 20 cyberoperation were always designed to be temporary, they have lasted longer than expected and Iran is still trying to repair critical communications systems and has not recovered the data lost in the attack, officials said.

Officials have not publicly outlined details of the operation. Air defense and missile systems were not targeted, the senior defense official said, calling media reports citing those targets inaccurate.

In the aftermath of the strike, some American officials have privately questioned its impact, saying they did not believe it was worth the cost. Iran probably learned critical information about the United States Cyber Command’s capabilities from it, one midlevel official said.

That story described the views of CyberCommand head General Nakasone, who did some dick-wagging in February over CyberCommand’s role in thwarting Russia’s efforts to tamper in the elections.

Whatever else Nakasone has done with his command, he seems to have made a conscious decision that taking credit for successful operations adds to its effectiveness. There certainly was some debate, both within the NYT story and in discussions of it, whether he’s right. But Nakasone is undoubtedly a professional who, when stories boasting of successful CyberCommand operations get released, has surely thought through the implications of it.

But as I said, last night NYT weighed in on the destroyed missile launch, with a story by long-standing scribes for the intelligence community, David Sanger and William Broad and — listed at the end in the actual story but given equal billing in Sanger’s tweet of it — Julian Barnes, the guy who broke Nakasone’s dick-wagging earlier in the week. It’s a funny story — as it was bound to be, given that virtually no one reported on the explosion itself and while this spends a line doing that, it’s really a story exploring what kind of denial this is.

Trump Denies U.S. Responsibility in Iranian Missile Base Explosion

[snip]

As pictures from commercial satellites of a rocket’s smoking remains began to circulate, President Trump denied Friday on Twitter that the United States was involved.

[snip]

Mr. Trump also included in his tweet a high-resolution image of the disaster, immediately raising questions about whether he had plucked a classified image from his morning intelligence briefing to troll the Iranians. The president seemed to resolve the question on Friday night on his way to Camp David when he told reporters, “We had a photo and I released it, which I have the absolute right to do.”

There is no denying that, even if it runs the risk of alerting adversaries to American abilities to spy from high over foreign territory. And there is precedent for doing so in more calculated scenarios: President John F. Kennedy declassified photographs of Soviet missile sites during the Cuban Missile Crisis in 1962, and President George W. Bush declassified pictures of Iraq in 2003 to support the faulty case that Saddam Hussein was producing nuclear and chemical weapons.

[snip]

Mr. Trump’s denial and the satellite image he released seemed meant to maximize Iran’s embarrassment over the episode.

[snip]

If the accident was linked to a covert action by the United States — one that Mr. Trump would have been required to authorize in a presidential “finding” — he and other American officials would be required by law to deny involvement.

The laws governing covert actions, which stretch back to the Truman administration, focus on obscuring who was responsible for the act, not covering up the action itself. Most American presidents have fulfilled that requirement by staying silent about such episodes, but Mr. Trump does not operate by ordinary rules — and may have decided that an outright denial was his best course. [my emphasis]

Not everyone agrees with the claim that Trump would be required by law to deny a covert operation. He’s the President. He can do what he wants with classified information.

That said, the story may be an attempt to use official scribes to reframe this disclosure to make it closer to the way the intelligence community likes to engage in plausible deniability, with a lot of wink wink and smirking. Amid all the discussion of deny deny deny, after all, the NYT points to several pieces of evidence that this explosion was part of a successful program to sabotage Iran’s missile capabilities.

Two previous attempts at launching satellites — on Jan. 15 and on Feb. 5 — failed. More than two-thirds of Iran’s satellite launches have failed over the past 11 years, a remarkably high number compared with the 5 percent failure rate worldwide.

[snip]

It was the third disaster to befall a rocket launching attempt this year at the Iranian space center, a desert complex east of Tehran named for the nation’s first supreme leader. The site specializes in rocket launchings meant put satellites into orbit.

Tehran announced its January rocket failure but said nothing the one in February that was picked up by American intelligence officials. It has also said nothing officially about Thursday’s blast. Like many closed societies, Iran tends to hide its failures and exaggerate its successes.

The NYT also helpfully links earlier stories on on Iran’s missile program, including one from February by Sanger and Broad that states as fact that the US has accelerated a program to sabotage Iran’s missile program.

The Trump White House has accelerated a secret American program to sabotage Iran’s missiles and rockets, according to current and former administration officials, who described it as part of an expanding campaign by the United States to undercut Tehran’s military and isolate its economy.

Officials said it was impossible to measure precisely the success of the classified program, which has never been publicly acknowledged. But in the past month alone, two Iranian attempts to launch satellites have failed within minutes.

Those two rocket failures — one that Iran announced on Jan. 15 and the other, an unacknowledged attempt, on Feb. 5 — were part of a pattern over the past 11 years. In that time, 67 percent of Iranian orbital launches have failed, an astonishingly high number compared to a 5 percent failure rate worldwide for similar space launches.

Every astute reader who read the earlier Sanger and Broad story would have assumed this explosion was part of the American operation they described. Trump’s tweet would not have changed the extent to which the US could plausibly deny its sabotage operation.

Which means, among all the coyness and winking, this is the most interesting line of the NYT story.

It was unclear if Mr. Trump was using the explosion and the lurking suspicions among Iranians that the United States was again deep inside their nuclear and missile programs to force a negotiation or to undermine one.

Not discussed, however, is the other risk to Trump’s tweet: it has effectively given Iran and our other adversaries a sense of what kind of imagery capabilities we’ve got. That’s what some of the proliferation experts are most troubled by, the possibility that by tweeting out the image, Trump will make it easier for others to evade our surveillance.

But that should be discussed in the same breath as the earlier dick-wagging. While Iran surely suspected the database strike was US work, the earlier NYT story confirms it.

Yes, it’s clear that Trump’s tweet yesterday was dick-wagging. But so was the earlier report on the database hack. So this could reflect a broader change in the US approach to deniability.

The Irony of Glenn Greenwald Cuddling Up with Bill Barr, the Grandfather of Ed Snowden’s Phone Dragnet

Glenn Greenwald, who has written two books about the abuse of Presidential power, continues to dig in on his factually ignorant claims about the Mueller report. For days, he and the denialists said that if Mueller’s report was being misrepresented by Bill Barr, Mueller would speak up. Now that Mueller’s team has done so, Glenn complains that these are anonymous leaks and nevertheless only address obstruction, not a conspiracy with Russia on the election.

Glenn and his lackeys in the denialist crowd who continue to willfully misrepresent the public evidence have yet to deal with the fact that Mueller has already presented evidence that Paul Manafort conspired with Russian Konstantin Kilimnik on the election, but that they weren’t able to substantiate and charge it because Manafort lied. Mueller’s team say they believe Manafort did so in hopes and expectation that if he helped Trump and denialists like Glenn sustain a “no collusion” line, he might get a pardon. That is, we know that Trump’s offers of pardons — his obstruction — specifically prevented Mueller from pursuing a fairly smoking gun incident where Trump’s campaign manager coordinated with Russians on the hack-and-leak.

As Glenn once professed to know with respect to Scooter Libby’s obstruction, if someone successfully obstructs an investigation, that may mean the ultimate culprit in that investigation escapes criminal charge.

Glenn’s denialism is all the more remarkable, though, given that this same guy who wrote two books on abuse of presidential power is choosing to trust a memo from Bill Barr that was obviously playing legalistic games over what the public record says. As Glenn must know well, Barr has a history of engaging in precisely the kind of cover-up of presidential abuses Glenn once professed to oppose, fairly epically on Iran-Contra. The cover-up that Barr facilitated on that earlier scandal was the model that Dick Cheney used in getting away with leaking Valerie Plame’s identity and torture and illegal wiretapping, the kinds of presidential abuses that Glenn once professed to oppose.

I find Glenn’s trust of Bill Barr, one of the most authoritarian Attorneys General in the last half century, all the more ironic, coming as it does the same week that DOJ IG released this IG report on several DEA dragnets.

That’s because Glenn’s more recent opposition to abuse of power comes in the form of shepherding Edward Snowden’s leaks. Glenn’s recent fame stems in significant degree to the fact that on June 5, 2013, he published a document ordering Verizon to turn over all its phone records to the government.

The dragnet Snowden revealed with that document was actually just the second such dragnet. The first one targeted the phone calls from the US to a bunch of foreign countries claimed, with no court review, to have a drug nexus. Only, that term “drug nexus”  came to include countries with no significant drug ties but instead a claimed tie between drug money and financing terrorism, and which further came to be used in totally unrelated investigations. That earlier dragnet became the model for Stellar Wind, which became the model for the Section 215 dragnet that Glenn is now famous for having helped Edward Snowden expose.

Here’s what the IG Report released the same week that Glenn spent hours cuddling up to Bill Barr says about the original dragnet.

Bill Barr, the guy Glenn has spent 10 days nuzzling up to, is the grandfather of the dragnet system of surveillance.

The IG Report also shows that Bill Barr — the guy Glenn has spent 10 days trusting implicitly — didn’t brief Congress at all; the program wasn’t first briefed to Congress until years after Barr left office the first time.

This is the man that former critic of abusive presidential power Glenn Greenwald has chosen to trust over the public record.

This is, it seems, the strange plight of the denialist left, cozying up to the kind of authoritarians that their entire career, at least to this point, have vigorously opposed.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Brett Kavanaugh Called John Yoo His “Magic Bullet”

And Bill Burck thinks American citizens should not know that fact before Kavanaugh gets a lifetime appointment.

Brett Kavanaugh Was In the Loop on (Broader) Precursor to John Yoo’s Stellar Wind Memos

Patrick Leahy just had two key interactions with Brett Kavanaugh. In the first, he made it clear that Kavanaugh had received emails that Orrin Hatch staffer Manny Miranda stole from Democrats, including Leahy himself, in 2001 to 2003 during the period Kavanaugh worked at the White House, including on judicial nominations.

In the second, he asked Kavanaugh whether he still stood by his claim not to have been involved in the authorization for Stellar Wind, Bush’s illegal wiretap program. Kavanaugh almost immediately reverted to the dodge that George Bush used when denying he had ignored FISA — referring to just a subset of the program, for which the Bush White House invented the term “Terrorist Surveillance Program.

But Leahy persisted, asking specifically about this document (see page 13; significantly, Steven Bradbury left the document off a FOIA Vaughn Index about documents pertaining to the “TSP”).

From the context of Leahy’s questions, it’s clear that Kavanaugh was in the loop on this document, even if he wasn’t on the later documents. Leahy further made it clear that he couldn’t release the underlying documents making this clear because Chuck Grassley had deemed them Committee Confidential.

That’s important for several reasons. First, I’ve been told that the NSA started implementing Stellar Wind in response to a Finding (note, this document has the same date as the Gloves Come Off Memorandum of Notification that, according to Jane Meyer, included surveillance) before the October 4 OLC memo.

I’ve also been told that NSA conducted activities that are broader than what got covered by Yoo’s later memos under that Finding. That would make this Finding parallel to the July 13, 2002 John Yoo Fax under which CIA’s torture operated (which is how CIA claimed stuff that went beyond what was approved in the August 1, 2002 Bybee Memos still had DOJ authorization).

If that’s right, then Kavanaugh may not have been involved in authorizing illegal surveillance targeted at terrorists (and also potential culprits of the anthrax attack). But he would have been involved in authorizing even broader surveillance.

Leahy already asked to have the documents showing Kavanaugh’s involvement in this memo released publicly. He renewed that request today.

This underlying September 17 document has never been released, so we don’t know how extreme John Yoo got. But we may soon have the proof that Kavanaugh was involved in authorizing surveillance that goes beyond the scope of what we know got authorized as the Stellar Wind program.

Update: This story from Charlie Savage makes it clear that Kavanaugh was emailing John Yoo about the precursor to the memos authorizing Stellar Wind.

[I]n September 2001, after the terrorist attacks, Judge Kavanaugh engaged with a Justice Department lawyer about questions of warrantless surveillance at the time that lawyer wrote a memo an inspector general report later portrayed as the precursor to the Bush administration’s warrantless surveillance program.

Update: The email reads:

Any results yet on the 4A implications of random/constant surveillance of phone and e-mail conversations of non-citizens who are in the United States when the purpose of the surveillance is to prevent terrorist/criminal violence?

I Con the Record Transparency Bingo Part One: Consider the Full Surveillance Playing Hand

Several weeks ago, the government released its yearly transparency reports:

  • FISA Court’s report: This provides a very useful description of approvals viewed from the FISA Court’s perspective. While it is the least deceptive report, FISC has only released one full year (2016) and one partial year (2015) report before, so it can’t be used to study trends or history.
  • DOJ report: This is the mostly useless report, told from the government’s standpoint, reflecting how many final applications get approved. While it isn’t very useful for nuance, it is the only measure we can use to compare last year with the full history of FISA.
  • DNI report: This is the report started in the wake of the Snowden leaks and codified in the USA Freedom Act and last year’s FISA Amendments Act. Parts of this report are very useful, parts are horribly misleading (made worse by new reporting requirements pass in the FAA reauthorization). But it requires more kinds of data than the other two reports.

I’ve been meaning to write more on the transparency reports released some weeks ago (see this post debunking the claim that we can say the FISA Court has rejected more applications than in the past). But given some misunderstandings in this post, I thought it better to lay out some general principles about how to understand what the transparency reports show us.

Consider the full surveillance playing hand

FISA is just one way that the government can collect data used for national security investigations, and because it involves a secret court, it attracts more attention than the many other ways. Worse, it often attracts the focus in isolation from other surveillance methods, meaning even experts fail to consider how authorities work together to provide different parts of the government all the kinds of data they might want. Additionally, an exclusive focus on FISA may blind people to how new restrictions or permissions in one authority may lead to changes in how the government uses another authority.

National security surveillance currently includes at least the following:

  • FISA, including individualized orders, 702, and metadata collection
  • NSLs, providing some kind of metadata with little (albeit increasing) court oversight
  • Criminal investigative methods, collecting content, metadata, and business records; in 2016 this came to include Rule 41 hacking
  • Other means to collect business records, such as private sector contractors or mandated bank reporting
  • The Cybersecurity Information Sharing Act, permitting the private sector to share cyber data “voluntarily” with the government
  • EO 12333: spying conducted overseas under Article II authority; in 2017, the Obama Administration permitted the sharing of raw data within the intelligence community (which includes FBI)

Two examples of how FISA interacts with other authorities may help to demonstrate the importance of considering all these authorities together.

The Internet dragnet moves to PRISM and SPCMA

For virtually the entirety of the time the government collected Internet metadata as metadata domestically, it was breaking the law (because the concepts of metadata and content don’t apply neatly to packet based collection). From 2009 to 2011, the government tried to fake their way through this (in part by playing games with the distinction between collection and access). By the end of 2011, however, that game became legally untenable. Plus, the restrictions the FISA Court imposed on dissemination rules and purpose (NSA was only permitted to collect this data for counterterrorism purposes) made the program less useful. As a result, the government moved the function of chaining on Internet metadata to two different areas: metadata collected under PRISM (which because it was collected as content avoided the legal problems with Internet metadata collection) and metadata collected under EO 12333 and made accessible to analysts under Special Procedures approved in 2008 and extended throughout NSA in early 2011.

Some location collections moves to criminal context

As I’ve laid out, the FISC actually takes notice of rulings in the criminal context — even at the magistrate level — and adjusts FISC rulings accordingly. They’ve done this with both Post Cut Through Dialed Digits and location data. When the FISC adopted a highest common denominator for location collection, it meant that, in jurisdictions where FBI could still obtain location data with a d order, they might do that for national security purposes rather than obtain a PRTT under FISA (to say nothing of the additional paperwork). More recently, we’ve gotten hints that FBI had ways to access cell phones in a national security realm that were unavailable in a criminal realm.

This probably goes on all the time, as FBI Agents make trade offs of secrecy, notice to defendants, paperwork and oversight, and specific collection techniques to pursue national security investigations. We don’t get great numbers for FBI collection in any case, but what we do get will be significantly affected by these granular decisions made in secret.

Understand why surveillance law changes

Additionally, it’s important to understand why surveillance laws get passed.

CISA, for example, came about (among many other reasons) because Congress wouldn’t permit the government to conduct upstream collection using Section 702 for all cybersecurity purposes. Engaging in “voluntary” sharing with backbone providers gave the government data from all kinds of hostile actors (not just nation states), with fewer restrictions on sharing, no court oversight, and no disclosure requirements.

Similarly, to this day, many privacy activists and journalists misunderstand why the government was willing (nay, happy!) to adopt USA Freedom Act. It’s not that the government didn’t collect mobile data. On the contrary, the government had been obtaining cell data from AT&T since 2011, and that was probably a resumption of earlier collection incorporating FISA changed rules on location collection. Nor was it about calling card data; that had been explicitly permitted under the old program. Rather, USAF gave the government the ability to require assistance, just as it can under Section 702. While that was instrumental in getting access to Verizon cell data (which had avoided complying because it did not retain business records in the form that complied with FISA collection rules), that also gave the ability to get certain kinds of data under the “session identifier” definition of call records in the law.

Here’s a post on all the other goodies the government got with USA Freedom Act.

One more important detail virtually unmentioned in coverage of this authority: the 215 dragnet (both the old one and the USAF one) intersect with a far vaster dragnet of metadata collected under 12333. The “bulk” is achieved — and has been since 2009! — using EO 12333 data, data which doesn’t have the same restrictions on things like location data that FISA data does. Section 215 is about getting records (and correlations) that aren’t available overseas, effectively filling in the holes in data collected overseas.

All that is necessary background to understanding numbers that track just FISA (and NSL authorities). FISA is just one part of the always evolving national security collection the government does. And as permissive as a lot of people think FISA is, in many ways it is the most closely regulated part of national security collection.

Did Trump Modify PPD-28 Last Year before Retaining It?

In a series of questions for the record about whether CIA will continue to publicly post its surveillance procedures, CIA Director nominee Gina Haspel suggested she wouldn’t note changes if doing so would expose sources and methods.

Yes, subject only to my duty to protect classified information and intelligence sources and methods.

One question to which she gave that answer pertained to PPD-28, the Obama directive that provided some protections to foreign citizens.

The CIA’s PPD-28 Section 4 policies and procedures are publicly available. Will you ensure that the CIA continues to post these procedures as well as any modifications, superseding policies and procedures, or significant interpretations?

When Wyden asked about the importance of PPD-28 to bilateral relationships, Haspel explained that the Trump Administration had reviewed and retained it last year (Mike Pompeo had floated ditching it in his confirmation hearing). But in discussions about modifications, she envisioned only substantial modifications might interest allies.

PPD-28 underlies the US commitment to the EU/US Privacy Shield. This administration reviewed PPD-28 last year and decided to retain it. If PPD-28 were substantially modified or eliminated, our European partners might re-evaluate their commitment to the Privacy Shield that support trans-Atlantic commercial data flows.

The answers certainly leave the possibility that, in reviewing PPD-28 last year, the Trump Administration did make classified modifications, but did not consider them major enough to tell our European friends about.

Graham and Grassley Are Seeing Christopher Steele’s Ghost Where Mike Flynn Lurks

I get it. Trump is making us all crazy. But Chuck “Ethanol flipflop” Grassley and Lindsey “Trump’s best golfing buddy” Graham are going nuts not because of Trump but because of Christopher Steele. They’ve just written a letter to Susan Rice asking her why she emailed herself a letter, memorializing a January 5, 2017 meeting about the Russian hack, just before she left the White House.

In this email to yourself, you purport to document a meeting that had taken place more than two weeks before, on January 5, 2017. You wrote:

On January 5, following a briefing by IC leadership on Russian hacking during the 2016 Presidential election, President Obama had a brief follow-on conversation with FBI Director Jim Comey and Deputy Attorney General Sally Yates in the Oval Office. Vice President Biden and I were also present.

That meeting reportedly included a discussion of the Steele dossier and the FBI’ s investigation of its claims. 1 Your email continued:

President Obama began the conversation by stressing his continued commitment to ensuring that every aspect of this issue is handled by the Intelligence and law enforcement communities “by the book”. The President stressed that he is not asking about, initiating or instructing anything from a law enforcement perspective. He reiterated that our law enforcement team needs to proceed as it normally would by the book. From a national security perspective, however, President Obama said he wants to be sure that, as we engage with the incoming team, we are mindful to ascertain if there is any reason that we cannot share information fully as it relates to Russia.

The next part of your email remains classified. After that, you wrote:

The President asked Comey to inform him if anything changes in the next few weeks that should affect how we share classified information with the incoming team. Comey said he would.

It strikes us as odd that, among your activities in the final moments on the final day of the Obama administration, you would feel the need to send yourself such an unusual email purporting to document a conversation involving President Obama and his interactions with the FBI regarding the Trump/Russia investigation. In addition, despite your claim that President Obama repeatedly told Mr. Comey to proceed “by the book,” substantial questions have arisen about whether officials at the FBI, as well as at the Justice Department and the State Department, actually did proceed “by the book.”

It pains me that two top Republicans on the Senate Judiciary Committee are too fucking stupid to see that, in fact, the FBI proceeded quite cautiously with the Russia investigation, not inappropriately, as they suggest. It pains me still more that they think this is all about the dossier.

7. During the meeting, did Mr. Comey or Ms. Yates mention potential press coverage of the Steele dossier? If so, what did they say?

8. During the meeting, did Mr. Comey describe the status of the FBI’s relationship with Mr. Steele, or the basis for that status?

9. When and how did you first become-aware of the allegations made by Christopher Steele?

10. When and how did you first become aware that the Clinton Campaign and the Democratic National Committee funded Mr. Steele’s efforts?

It’s certainly possible, given what I laid out here, that DOJ was prepping the second FISA application for Carter Page (though if the reauthorization were dated January 9, the application would have had to have been submitted by January 2).

But there are other reasons why you’d expect to have this meeting on January 5 and why Rice would want a record of it for posterity (the meeting generally probably relates to this story about the way Obama protected information on the investigation in the last days of the Administration).

As reporting on the discovery of Mike Flynn’s conversations about Russian sanctions with Sergey Kislyak make clear, the conversation wasn’t discovered in real time. Rather, after Putin didn’t respond to the December sanctions against Russia, analysts sought to figure out why. Only after that did they discover the conversation and Flynn’s role in it.

For Yates and other officials, concerns about the communications peaked in the days after the Obama administration on Dec. 29 announced measures to punish Russia for what it said was the Kremlin’s interference in the election in an attempt to help Trump.

After the sanctions were rolled out, the Obama administration braced itself for the Russian retaliation. To the surprise of many U.S. officials, Russian President Vladimir Putin announced on Dec. 30 that there would be no response. Trump praised the decision on Twitter.

Intelligence analysts began to search for clues that could help explain Putin’s move. The search turned up Kislyak’s communications, which the FBI routinely monitors, and the phone call in question with Flynn, a retired Army lieutenant general with years of intelligence experience.

So it would be right around this time when law enforcement concerns about the incoming National Security Advisor would have arisen.

Update: This story confirms that the January 5 meeting was partly about the Flynn phone call.

On Jan. 5, FBI Director James B. Comey, CIA Director John Brennan and Director of National Intelligence James R. Clapper Jr. briefed Obama and a small group of his top White House advisers on the contents of a classified intelligence report showing that Russia intervened in the 2016 election to help Trump. That’s when White House officials learned that the FBI was investigating the Flynn-Kislyak calls. “The Flynn-Kislyak relationship was highlighted,” a former senior U.S. official said, adding that the bureau made clear “that there was an actual investigation” underway.

And, in a very significant way, the investigation did not proceed by the book, almost certainly because of Mike Flynn’s (and possibly even Jeff Sessions’) potential compromise. Back in March, Jim Comey admitted to Elise Stefanik that the FBI had delayed briefing Congress about the counterintelligence investigation into Trump because it had, in turn, delayed telling the Executive Branch until February.

Stefanik returned to her original point, when Congress gets briefed on CI investigations. Comey’s response was remarkable.

Stefanik: It seems to me, in my first line of questioning, the more serious a counterintelligence investigation is, that would seem to trigger the need to update not just the White House, the DNI, but also senior congressional leadership. And you stated it was due to the severity. I think moving forward, it seems the most severe and serious investigations should be notified to senior congressional leadership. And with that thanks for your lenience, Mr. Chairman, I yield back.

Comey could have been done with Stefanik yielding back. But instead, he interrupted, and suggested part of the delay had to do with the practice of briefing within the Executive Branch NSC before briefing Congress.

Comey: That’s good feedback, Ms. Stefanik, the challenge for is, sometimes we want to keep it tight within the executive branch, and if we’re going to go brief congressional leaders, the practice has been then we brief inside the executive branch, and so we have to try to figure out how to navigate that in a good way.

Which seems to suggest one reason why the FBI delayed briefing the Gang of Four (presumably, this is the Gang of Eight) is because they couldn’t brief all Executive Branch people the White House, and so couldn’t brief Congress without first having briefed the White House.

Which would suggest Mike Flynn may be a very central figure in this investigation.

Because the National Security Advisor was suspected of being compromised (and because the Attorney General had at least a conflict), the FBI couldn’t and didn’t proceed normally.

Plus, there’s one other issue about which Obama should have discussed normal procedure with Yates and Comey on January 5. Two days earlier, Loretta Lynch signed an order permitting, for the first time, the sharing of EO 12333 data in bulk. Among the first things I’m sure FBI would have asked for would have been EO 12333 data to support their Russian investigation. Yet doing so would expose Trump’s people. That’s all the more true given that the rules permit the retention of entirely domestic communications if they have significant counterintelligence value.

So one of the first things that would have happened, after signing data sharing rules the government had been working to implement since Stellar Wind, would have been the prospect that the very first Americans directly affected weren’t going to be some powerless Muslims or relatively powerless Chinese-Americans, but instead the President’s closest associates. Given what we’ve seen from the George Papadopoulos case, the FBI likely bent over backwards to insulate Trump aides (indeed, it’s hard to understand how they wouldn’t have known of Ivan Timofeev’s outreach to Papadopoulos before his interviews if they hadn’t).

Just before this meeting, FBI and DOJ had discovered that Trump’s most important national security aide had had surprising conversations with Russia. That clearly raised the prospect of necessary deviations from normal practices with regards to intelligence sharing.

Yet Grassley and Graham are seeing Christopher Steele’s ghost behind every single solitary action. Rather than the real challenges posed when top officials pose real counterintelligence concerns.

Update: Kathryn Ruemmler, representing Rice, pretty much confirms Grassley and Graham have gone on a wild Steele chase.

“There is nothing ‘unusual’ about the National Security Advisor memorializing an important discussion for the record,” Kathryn Ruemmler, a counsel for Rice, said in a statement. “The Obama White House was justifiably concerned about how comprehensive they should be in their briefings regarding Russia to members of the Trump transition team, particularly Lt. General Michael Flynn, given the concerning communications between him and Russian officials.”
Ruemmler added: “The discussion that Ambassador Rice documented did not involve the so-called Steele dossier. Any insinuation that Ambassador Rice’s actions in this matter were inappropriate is yet another attempt to distract and deflect from the importance of the ongoing investigations into Russian meddling in America’s democracy.”

Christopher Wray Departs from Jim Comey’s “Balance” on Encryption

In his statement before the House Judiciary Committee last week, FBI Director Christopher Wray raised encryption, as FBI Directors do when they go before Congress.

His comments on encryption have a really bizarre line, complaining that, “The more we as a society rely on electronic devices to communicate and store information, the more likely it is that information that was once found in filing cabinets, letters, and photo albums will now be stored only in electronic form.” The reverse is really the issue: our electronic devices now make it really easy to get and search through what previously might be hidden in a (locked!) filing cabinet. They also encourage us to write in texts what we used to say in phone or direct conversations. So the reality is all this digitalization just makes it easier to engage in one stop evidence shopping with someone’s phone.

The more interesting thing, to me, is the way in which Wray’s rhetoric deviates sharply from that of Jim Comey.

Comey, you’ll remember, always liked to talk about the “balance” between security and privacy. He used that formulation most times he discussed back doors in encryption.

And he gave an entire speech on it last year in the wake of the San Bernardino phone challenge.

In America we’ve always balanced privacy and security. It can be messy, it can be painful, but we’ve always worked through the three branches of government to achieve that balance in a sensible way.

[snip]

We have to find thoughtful, productive ways to talk about issues of privacy and security, and here’s the thing, by thoughtful I don’t mean that I’m right, and you’re wrong. I could be wrong about the way I assess, the way I perceive, the way I balance, the way I reason, but I think all productive conversations start from a place of humility. I could be wrong.

[snip]

[L]itigation is a terrible place to have any discussion about a complicated policy issue, especially one that touches on our values, on the things we care about most, on technology, on trade-offs, and balance.

[snip]

We are all people trying to do the right thing as we see the right. It is not for the FBI to decide how this country should govern itself.

It’s not for the FBI to decide what the right approach is here. Our job is to investigate. Our job is to tell you, the people who pay for us, when the tools you count on us to use aren’t working so much anymore, so you can figure out what to do about that. It’s also not the job of the technology companies to tell us—to tell you—what to do about this. Their job is to innovate and come up with the next great thing, and they’re spectacular at that, which is to be treasured. How we move forward needs to be resolved by the American people, and especially the young who know technology so well, and who care so deeply about getting the hard things right.

In his statement, Wray seems to be invoking this Comey formulation when he rejects the entire notion.

Some observers have conceived of this challenge as a trade-off between privacy and security. In our view, the demanding requirements to obtain legal authority to access data—such as by applying to a court for a warrant or a wiretap—necessarily already account for both privacy and security. The FBI is actively engaged with relevant stakeholders, including companies providing technological services, to educate them on the corrosive effects of the Going Dark challenge on both public safety and the rule of law, and with the academic community and technologists to work on technical solutions to this problem.

Wray appears to be rejecting Comey’s (usually false) show of seeking the right balanced between access and encryption, and instead saying a warrant is all it needs. That, in spite of the fact that Congress has specifically stopped short of requiring technical access for some of the applications that Wray and Comey were complaining about. Not to mention the fact that FBI doesn’t ever get a warrant to get to US person content via back door searches or the 2014 exception.

Ultimately, of course, the effect is the same: FBI is going to continue demanding back doors into encryption.

But Wray, apparently, doesn’t even feel the need to feign an interest in the debate.

A Dragnet of emptywheel’s Most Important Posts on Surveillance, 2007 to 2017

Happy Birthday to me! To us! To the emptywheel community!

On December 3, 2007, emptywheel first posted as a distinct website. That makes us, me, we, ten this week.

To celebrate, the emptywheel team has been sharing some of our favorite work from the last decade. This is my massive dragnet of surveillance posts.

For years, we’ve done this content ad free, relying on donations and me doing freelance work for others to fund the stuff you read here. I would make far more if I worked for some free-standing outlet, but I wouldn’t be able to do the weedy, iterative work that I do here, which would amount to not being able to do my best work.

If you’ve found this work valuable — if you’d like to ensure it remains available for the next ten years — please consider supporting the site.

2007

Whitehouse Reveals Smoking Gun of White House Claiming Not to Be Bound by Any Law

Just days after opening the new digs, I noticed Sheldon Whitehouse entering important details into the Senate record — notably, that John Yoo had pixie dusted EO 12333 to permit George Bush to authorize the Stellar Wind dragnet. In the ten years since, both parties worked to gradually expand spying on Americans under EO 12333, only to have Obama permit the sharing of raw EO 12333 data in its last days in office, completing the years long project of restoring Stellar Wind’s functionalities. This post, from 2016, analyzes a version of the underlying memo permitting the President to change EO 12333 without providing public notice he had done so.

2008

McConnell and Mukasey Tell Half Truths

In the wake of the Protect America Act, I started to track surveillance legislation as it was written, rather than figure out after the fact how the intelligence community snookered us. In this post, I examined the veto threats Mike McConnell and Michael Mukasey issued in response to some Russ Feingold amendments to the FISA Amendments Act and showed that the government intended to use that authority to access Americans’ communication via both what we now call back door searches and reverse targeting. “That is, one of the main purposes is to collect communications in the United States.”

9 years later, we’re still litigating this (though, since then FISC has permitted the NSA to collect entirely domestic communications under the 2014 exception).

2009

FISA + EO 12333 + [redacted] procedures = No Fourth Amendment

The Government Sez: We Don’t Have a Database of All Your Communication

After the FISCR opinion on what we now know to be the Yahoo challenge to Protect American Act first got declassified, I identified several issues that we now have much more visibility on. First, PAA permitted spying on Americans overseas under EO 12333. And it didn’t achieve particularity through the PAA, but instead through what we know to be targeting procedures, including contact chaining. Since then we’ve learned the role of SPCMA in this.

In addition, to avoid problems with back door searches, the government claimed it didn’t have a database of all our communication — a claim that, narrowly parsed might be true, but as to the intent of the question was deeply misleading. That claim is one of the reasons we’ve never had a real legal review of back door searches.

Bush’s Illegal Domestic Surveillance Program and Section 215

On PATRIOTs and JUSTICE: Feingold Aims for Justice

During the 2009 PATRIOT Act reauthorization, I continued to track what the government hated most as a way of understanding what Congress was really authorizing. I understood that Stellar Wind got replaced not just by PAA and FAA, but also by the PATRIOT authorities.

All of which is a very vague way to say we probably ought to be thinking of four programs–Bush’s illegal domestic surveillance program and the PAA/FAA program that replaced it, NSLs, Section 215 orders, and trap and trace devices–as one whole. As the authorities of one program got shut down by exposure or court rulings or internal dissent, it would migrate to another program. That might explain, for example, why Senators who opposed fishing expeditions in 2005 would come to embrace broadened use of Section 215 orders in 2009.

I guessed, for example, that the government was bulk collecting data and mining it to identify targets for surveillance.

We probably know what this is: the bulk collection and data mining of information to select targets under FISA. Feingold introduced a bajillion amendments that would have made data mining impossible, and each time Mike McConnell and Michael Mukasey would invent reasons why Feingold’s amendments would have dire consequences if they passed. And the legal information Feingold refers to is probably the way in which the Administration used EO 12333 and redacted procedures to authorize the use of data mining to select FISA targets.

Sadly, I allowed myself to get distracted by my parallel attempts to understand how the government used Section 215 to obtain TATP precursors. As more and more people confirmed that, I stopped pursuing the PATRIOT Act ties to 702 as aggressively.

2010

Throwing our PATRIOT at Assange

This may be controversial, given everything that has transpired since, but it is often forgotten what measures the US used against Wikileaks in 2010. The funding boycott is one thing (which is what led Wikileaks to embrace Bitcoin, which means it is now in great financial shape). But there’s a lot of reason to believe that the government used PATRIOT authorities to target not just Wikileaks, but its supporters and readers; this was one hint of that in real time.

2011

The March–and April or May–2004 Changes to the Illegal Wiretap Program

When the first iteration of the May 2004 Jack Goldsmith OLC memo first got released, I identified that there were multiple changes made and unpacked what some of them were. The observation that Goldsmith newly limited Stellar Wind to terrorist conversations is one another reporter would claim credit for “scooping” years later (and get the change wrong in the process). We’re now seeing the scope of targeting morph again, to include a range of domestic crimes.

Using Domestic Surveillance to Get Rapists to Spy for America

Something that is still not widely known about 702 and our other dragnets is how they are used to identify potential informants. This post, in which I note Ted Olson’s 2002 defense of using (traditional) FISA to find rapists whom FBI can then coerce to cooperate in investigations was the beginning of my focus on the topic.

2012

FISA Amendments Act: “Targeting” and “Querying” and “Searching” Are Different Things

During the 2012 702 reauthorization fight, Ron Wyden and Mark Udall tried to stop back door searches. They didn’t succeed, but their efforts to do so revealed that the government was doing so. Even back in 2012, Dianne Feinstein was using the same strategy the NSA currently uses — repeating the word “target” over and over — to deny the impact on Americans.

Sheldon Whitehouse Confirms FISA Amendments Act Permits Unwarranted Access to US Person Content

As part of the 2012 702 reauthorization, Sheldon Whitehouse said that requiring warrants to access the US person content collected incidentally would “kill the program.” I took that as confirmation of what Wyden was saying: the government was doing what we now call back door searches.

2013

20 Questions: Mike Rogers’ Vaunted Section 215 Briefings

After the Snowden leaks started, I spent a lot of time tracking bogus claims about oversight. After having pointed out that, contrary to Administration claims, Congress did not have the opportunity to be briefed on the phone dragnet before reauthorizing the PATRIOT Act in 2011, I then noted that in one of the only briefings available to non-HPSCI House members, FBI had lied by saying there had been no abuses of 215.

John Bates’ TWO Wiretapping Warnings: Why the Government Took Its Internet Dragnet Collection Overseas

Among the many posts I wrote on released FISA orders, this is among the most important (and least widely understood). It was a first glimpse into what now clearly appears to be 7 years of FISA violation by the PRTT Internet dragnet. It explains why they government moved much of that dragnet to SPCMA collection. And it laid out how John Bates used FISA clause 1809(a)(2) to force the government to destroy improperly collected data.

Federated Queries and EO 12333 FISC Workaround

In neither NSA nor FBI do the authorities work in isolation. That means you can conduct a query on federated databases and obtain redundant results in which the same data point might be obtained via two different authorities. For example, a call between Michigan and Yemen might be collected via bulk collection off a switch in or near Yemen (or any of the switches between there and the US), as well as in upstream collection from a switch entering the US (and all that’s assuming the American is not targeted). The NSA uses such redundancy to apply the optimal authority to a data point. With metadata, for example, it trained analysts to use SPCMA rather than PATRIOT authorities because they could disseminate it more easily and for more purposes. With content, NSA appears to default to PRISM where available, probably to bury the far more creative collection under EO 12333 for the same data, and also because that data comes in structured form.

Also not widely understood: the NSA can query across metadata types, returning both Internet and phone connection in the same query (which is probably all the more important now given how mobile phones collapse the distinction between telephony and Internet).

This post described how this worked with the metadata dragnets.

The Purpose(s) of the Dragnet, Revisited

The government likes to pretend it uses its dragnet only to find terrorists. But it does far more, as this analysis of some court filings lays out.

2014

The Corporate Store: Where NSA Goes to Shop Your Content and Your Lifestyle

There’s something poorly understood about the metadata dragnets NSA conducts. The contact-chaining isn’t the point. Rather, the contact-chaining serves as a kind of nomination process that puts individuals’ selectors, indefinitely, into the “corporate store,” where your identity can start attracting other related datapoints like a magnet. The contact-chaining is just a way of identifying which people are sufficiently interesting to submit them to that constant, ongoing data collection.

SPCMA: The Other NSA Dragnet Sucking In Americans

I’ve done a lot of work on SPCMA — the authorization that, starting in 2008, permitted the NSA to contact chain on and through Americans with EO 12333 data, which was one key building block to restoring access to EO 12333 analysis on Americans that had been partly ended by the hospital confrontation, and which is where much of the metadata analysis affecting Americans has long happened. This was my first comprehensive post on it.

The August 20, 2008 Correlations Opinion

A big part of both FBI and NSA’s surveillance involves correlating identities — basically, tracking all the known identities a person uses on telephony and the Internet (and financially, though we see fewer details of that), so as to be able to pull up all activities in one profile (what Bill Binney once called “dossiers”). It turns out the FISC opinion authorizing such correlations is among the documents the government still refuses to release under FOIA. Even as I was writing the post Snowden was explaining how it works with XKeyscore.

A Yahoo! Lesson for USA Freedom Act: Mission Creep

This is another post I refer back to constantly. It shows that, between the time Yahoo first discussed the kinds of information they’d have to hand over under PRISM in August 2007 and the time they got directives during their challenge, the kinds of information they were asked for expanded into all four of its business areas. This is concrete proof that it’s not just emails that Yahoo and other PRISM providers turn over — it’s also things like searches, location data, stored documents, photos, and cookies.

FISCR Used an Outdated Version of EO 12333 to Rule Protect America Act Legal

Confession: I have an entire chapter of the start of a book on the Yahoo challenge to PRISM. That’s because so much about it embodied the kind of dodgy practices the government has, at the most important times, used with the FISA Court. In this post, I showed that the documents that the government provided the FISCR hid the fact that the then-current versions of the documents had recently been modified. Using the active documents would have shown that Yahoo’s key argument — that the government could change the rules protecting Americans anytime, in secret — was correct.

2015

Is CISA the Upstream Cyber Certificate NSA Wanted But Didn’t Really Get?

Among the posts I wrote on CISA, I noted that because the main upstream 702 providers have a lot of federal business, they’ll “voluntarily” scan on any known cybersecurity signatures as part of protecting the federal government. Effectively, it gives the government the certificate it wanted, but without any of the FISA oversight or sharing restrictions. The government has repeatedly moved collection to new authorities when FISC proved too watchful of its practices.

The FISA Court’s Uncelebrated Good Points

Many civil libertarians are very critical of the FISC. Not me. In this post I point out that it has policed minimization procedures, conducted real First Amendment reviews, taken notice of magistrate decisions and, in some cases, adopted the highest common denominator, and limited dissemination.

How the Government Uses Location Data from Mobile Apps

Following up on a Ron Wyden breadcrumb, I figured out that the government — under both FISA and criminal law — obtain location data from mobile apps. While the government still has to adhere to the collection standard in any given jurisdiction, obtaining the data gives the government enhanced location data tied to social media, which can implicate associates of targets as well as the target himself.

The NSA (Said It) Ate Its Illegal Domestic Content Homework before Having to Turn It in to John Bates

I’m close to being able to show that even after John Bates reauthorized the Internet metadata dragnet in 2010, it remained out of compliance (meaning NSA was always violating FISA in obtaining Internet metadata from 2002 to 2011, with a brief lapse). That case was significantly bolstered when it became clear NSA hastily replaced the Internet dragnet with obtaining metadata from upstream collection after the October 2011 upstream opinion. NSA hid the evidence of problems on intake from its IG.

FBI Asks for at Least Eight Correlations with a Single NSL

As part of my ongoing effort to catalog the collection and impact of correlations, I showed that the NSL Nick Merrill started fighting in 2004 asked for eight different kinds of correlations before even asking for location data. Ultimately, it’s these correlations as much as any specific call records that the government appears to be obtaining with NSLs.

2016

What We Know about the Section 215 Phone Dragnet and Location Data

During the lead-up to the USA Freedom Debate, the government leaked stories about receiving a fraction of US phone records, reportedly because of location concerns. The leaks were ridiculously misleading, in part because they ignored that the US got redundant collection of many of exactly the same calls they were looking for from EO 12333 collection. Yet in spite of these leaks, the few figured out that the need to be able to force Verizon and other cell carriers to strip location data was a far bigger reason to pass USAF than anything Snowden had done. This post laid out what was known about location data and the phone dragnet.

While It Is Reauthorizing FISA Amendments Act, Congress Should Reform Section 704

When Congress passed FISA Amendments Act, it made a show of providing protections to Americans overseas. One authority, Section 703, was for spying on people overseas with help of US providers, and another was for spying on Americans overseas without that help. By May 2016, I had spent some time laying out that only the second, which has less FISC oversight, was used. And I was seeing problems with its use in reporting. So I suggested maybe Congress should look into that?

It turns out that at precisely that moment, NSA was wildly scrambling to get a hold on its 704 collection, having had an IG report earlier in the year showing they couldn’t audit it, find it all, or keep it within legal boundaries. This would be the source of the delay in the 702 reauthorization in 2016, which led to the prohibition on about searches.

The Yahoo Scan: On Facilities and FISA

The discussion last year of a scan the government asked Yahoo to do of all of its users was muddled because so few people, even within the privacy community, understand how broadly the NSA has interpreted the term “selector” or “facility” that it can target for collection. The confusion remains to this day, as some in the privacy community claim HPSCI’s use of facility based language in its 702 reauthorization bill reflects new practice. This post attempts to explain what we knew about the terms in 2016 (though the various 702 reauthorization bills have offered some new clarity about the distinctions between the language the government uses).

2017

Ron Wyden’s History of Bogus Excuses for Not Counting 702 US Person Collection

Ron Wyden has been asking for a count of how many Americans get swept up under 702 for years. The IC has been inventing bogus explanations for why they can’t do that for years. This post chronicles that process and explains why the debate is so important.

The Kelihos Pen Register: Codifying an Expansive Definition of DRAS?

When DOJ used its new Rule 41 hacking warrant against the Kelihos botnet this year, most of the attention focused on that first-known usage. But I was at least as interested in the accompanying Pen Register order, which I believe may serve to codify an expansion of the dialing, routing, addressing, and signaling information the government can obtain with a PRTT. A similar codification of an expansion exists in the HJC and Lee-Leahy bills reauthorizing 702.

The Problems with Rosemary Collyer’s Shitty Upstream 702 Opinion

The title speaks for itself. I don’t even consider Rosemary Collyer’s 2017 approval of 702 certificates her worst FISA opinion ever. But it is part of the reason why I consider her the worst FISC judge.

It Is False that Downstream 702 Collection Consists Only of To and From Communications

I pointed out a number of things not raised in a panel on 702, not least that the authorization of EO 12333 sharing this year probably replaces some of the “about” collection function. Most of all, though, I reminded that in spite of what often gets claimed, PRISM is far more than just communications to and from a target.

UNITEDRAKE and Hacking under FISA Orders

A document leaked by Shadow Brokers reveals a bit about how NSA uses hacking on FISA targets. Perhaps most alarmingly, the same tools that conduct such hacks can be used to impersonate a user. While that might be very useful for collection purposes, it also invites very serious abuse that might create a really nasty poisonous tree.

A Better Example of Article III FISA Oversight: Reaz Qadir Khan

In response to Glenn Gerstell’s claims that Article III courts have exercised oversight by approving FISA practices (though the reality on back door searches is not so cut and dry), I point to the case of Reaz Qadir Khan where, as Michael Mosman (who happens to serve on FISC) moved towards providing a CIPA review for surveillance techniques, Khan got a plea deal.

The NSA’s 5-Page Entirely Redacted Definition of Metadata

In 2010, John Bates redefined metadata. That five page entirely redacted definition became codified in 2011. Yet even as Congress moves to reauthorize 702, we don’t know what’s included in that definition (note: location would be included).

FISA and the Space-Time Continuum

This post talks about how NSA uses its various authorities to get around geographical and time restrictions on its spying.

The Senate Intelligence Committee 702 Bill Is a Domestic Spying Bill

This is one of the most important posts on FISA I’ve ever written. It explains how in 2014, to close an intelligence gap, the NSA got an exception to the rule it has to detask from a facility as soon as it identifies Americans using the facility. The government uses it to collect on Tor and, probably VPN, data. Because the government can keep entirely domestic communications that the DIRNSA has deemed evidence of a crime, the exception means that 702 has become a domestic spying authority for use with a broad range of crimes, not to mention anything the Attorney General deems a threat to national security.

“Hype:” How FBI Decided Searching 702 Content Was the Least Intrusive Means

In a response to a rare good faith defense of FBI’s back door searches, I pointed out that the FBI is obliged to consider the least intrusive means of investigation. Yet, even while it admits that accessing content like that obtained via 702 is extremely intrusive, it nevertheless uses the technique routinely at the assessment level.

Other Key Posts Threads

10 Years of emptywheel: Key Non-Surveillance Posts 2008-2010

10 Years of emptywheel: Key Non-Surveillance Posts 2011-2012

10 Years of emptywheel: Key Non-Surveillance Posts 2013-2015

10 Years of emptywheel: Key Non-Surveillance Posts 2016-2017

10 Years of emptywheel: Jim’s Dimestore

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