Horowitz

It Turns Out Carter Page Was Not Special

DOJ’s IG released a Management Advisory Memorandum reporting on its results to date of the Woods File review promised in the wake of the DOJ IG Report that found (in part) that 8 (in the first) and 16 (in the last) claims made over the course of four FISA applications to surveil Carter Page were not backed by the Woods file meant to ensure the integrity of FISA applications. (The table starting on PDF 460 lists these errors.)

I’ll have more on its methodology and findings, but the key takeaway is that Carter Page was not special, nor specially targeted by a Deep State intent on taking down the President.

Of 29 FISA applications DOJ IG selected for review, the Woods File was missing for four applications.

And for the 25 Woods Files there were able to review, there were an average of 20 issues identified per application, a higher rate than that found in the Carter Page review.

Although all 29 FISA applications that we selected for review were required by FBI policy to have Woods Files created by the case agent and reviewed by the supervisory special agent, we have identified 4 applications for which, as of the date of this memorandum, the FBI either has been unable to locate the Woods File that was prepared at the time of the application or for which FBI personnel suggested a Woods File was not completed. We, therefore, make a recommendation below that the FBI take steps to ensure that a Woods File exists for every FISA application submitted to the FISC in all pending investigations.

Additionally, for all 25 FISA applications with Woods Files that we have reviewed to date, we identified facts stated in the FISA application that were: (a) not supported by any documentation in the Woods File, (b) not clearly corroborated by the supporting documentation in the Woods File, or (c) inconsistent with the supporting documentation in the Woods File. While our review of these issues and follow-up with case agents is still ongoing—and we have not made materiality judgments for these or other errors or concerns we identified—at this time we have identified an average of about 20 issues per application reviewed, with a high of approximately 65 issues in one application and less than 5 issues in another application.

It’s not that the Deep State was specifically targeting Page and candidate Donald Trump. It’s that the Woods Procedures weren’t working.

Adam Schiff Totally Gutted the Section 215 Notice Provision in the FISA Reauthorization Bill

I’m working on a series of posts about the bill reauthorizing Section 215 that will be pushed through Congress today. Effectively, Adam Schiff took the Jerry Nadler bill, watered down some key provisions, but added a bunch of symbolic certifications that would do nothing to eliminate the kinds of problems in the Carter Page application, probably are less effective than certifications presiding FISA judge James Boasberg required the other day, but give Republicans who are too stupid to understand FISA the ability to claim victory.

One of the ways that Schiff has watered down the Nadler bill is particular alarming. It effectively guts efforts to require notice to defendants for Section 215. Here’s the language in his bill:

(2) USE IN TRIALS, HEARINGS, OR OTHER PROCEEDINGS.—For purposes of subsections (b) through (h) of section 106—

(A) information obtained or derived from the production of tangible things pursuant to an investigation conducted under this section shall be deemed to be information acquired from an electronic surveillance pursuant to title I, unless the court or other authority of the United States finds, in response to a motion from the Government, that providing notice to an aggrieved person would harm the national security of the United States; and

(B) in carrying out subparagraph (A), a person shall be deemed to be an aggrieved person if

(i) the person is the target of such an investigation; and

(ii) the activities or communications of the person are described in the tangible things that the Government intends to use or disclose in any trial, hearing, or other proceeding.

Here’s Nadler’s original language:

(2) USE IN TRIALS, HEARINGS, OR OTHER PROCEEDINGS.—For purposes of subsections (b) through (h) of section 106—

(A) information obtained or derived from the production of tangible things pursuant to an investigation conducted under this section shall be deemed to be information acquired from an electronic surveillance pursuant to title I; and

(B) in carrying out subparagraph (A), a person shall be deemed to be an aggrieved person if—

(i) the person is the target of such an investigation; or

(ii) the activities or communications of the person are described in any tangible thing collected pursuant to such an investigation.

As it was, Nadler’s language had a loophole, in that it changed the definition of aggrieved person. Under 18 USC §1801, an aggrieved person is anyone who is either the target or who has been caught up in a wiretap or other collection targeting them.

“Aggrieved person” means a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance.

Under Nadler’s bill, someone is aggrieved only if they are the “target” of “such an investigation. But “investigation” there seems to pertain to the original 215 order, meaning that if someone started a second investigation into someone based off information discovered in 215 (which is often used for lead generation) it’s not even clear they would count as the target, even if they were the ones being prosecuted or put on a no-fly list or some such thing.

Still, under Nadler’s bill, that person would likely still get notice if their activities — say, buying a pressure cooker or access a certain website — would have been collected using the 215 order.

But Schiff’s bill utterly guts even that. He does so in three ways.

Working from the bottom, Schiff requires that you be both the target of the investigation and that your activities or communications got collected under 215. It appears to mean that only those who are the target of the original 215 order would be aggrieved (there are still a number of bulky orders that don’t target any person, so if an investigation arose out of a lead from such bulky orders, no one would ever be aggrieved under this definition).

Then, Schiff only counts someone as aggrieved if the government will introduce the evidence collected under 215 order. That is, if someone is targeted in part for buying a pressure cooker, but the pressure cooker lead led to a bunch of other evidence, that person might never count as aggrieved even if the original investigation into her came from purchasing a pressure cooker.

Plus, this language seems to invite parallel construction. If the government wanted to introduce evidence of that pressure cooker purchase, they could just subpoena the store directly.

Finally, and most outrageously, the government can still move not to give that notice based on a claim that providing it “would harm to the national security of the United States.” Outrageously, they don’t even have to convince a judge that such harm is real. A court “or other authority of the United States” could agree with such a finding. The Attorney General is “an authority of the United States.” So Attorney General Bill Barr — the father of the first subpoena based dragnet — could make a motion saying that notice of a dragnet would harm the national security of the United States, and Attorney General Bill Barr could agree with Bill Barr that that’s the case.

This is how the whole dragnet problem started in the first place, when, in 1992, Bill Barr decided that he could authorized secret dragnets.

It’s hard to believe the bill would make such ridiculous changes unless there were something DOJ is trying to hide. Whatever the reason, this language utterly guts the notice provision, while still pretending it actually does include one.

Amid Discussions of FISA Reform, James Boasberg Pushes for Greater Reform

It’s not entirely clear what will happen in a few weeks when several existing FISA provisions expire; there are ongoing discussions about how much to reform FISA in the wake of the Carter Page IG Report. But before anyone passes legislation, they would do well to read the order presiding FISA Judge James Boasberg issued yesterday.

On its face, Boasberg’s order is a response to DOJ’s initial response to FISC’s order to fix the process, Amicus David Kris’ response to that, and DOJ’s reply to Kris. The order ends by citing In re Sealed Case, the 2002 FISCR opinion that limited how much change the FISA Court can demand of DOJ, and “acknowledging that significant change can take time, and recognizing the limits of its authority.” By pointing to In re Sealed Case, Boasberg highlights the limits of what FISC can do without legislation from Congress — and, importantly, it highlights the limits of what FISC could do to improve the process if Bill Barr were to convince Congress that DOJ can fix any problems itself, without being forced to do so by Congress.

After invoking In Re Sealed Case, Boasberg orders reports (due March 27, May 4, May 22, June 30, and July 3) on the progress of a number of improvements. He orders that any DOJ or FBI personnel under disciplinary or criminal review relating to work on FISA applications may not participate in preparing applications for FISC, and he requires additional signoffs on applications, including Section 215 orders, which currently don’t require such affirmations.

Boasberg recognizes that DOJ, not just FBI, needs to change

Remarkably, Boasberg notes what I have — the IG Report provides evidence, its focus on FBI notwithstanding, that some of the blame for the Carter Page application belongs with DOJ, not FBI.

According to the OIG Report, the DOJ attorney responsible for preparing the Page applications was aware that Page claimed to have had some type of reporting relationship with another government agency. See OIG Rpt. at 157. The DOJ attorney did not, however, follow up to confirm the nature of that relationship after the FBI case agent declared it “outside scope.” Id. at 157, 159. The DOJ attorney also received documents that contained materially adverse information, which DOJ advises should have been included in the application. Id. at 169-170. Greater diligence by the DOJ attorney in reviewing and probing the information provided by the FBI would likely have avoided those material omissions.

As a result, Boasberg requires the DOJ attorney signing off on a FISA application to attest to the accuracy of it as well. He also suggests DOJ attorneys “participate in field-office visits to assist in the preparation of FISA applications.”

Boasberg recognizes that DOJ’s existing plan doesn’t address any root cause

Similarly, Boasberg recognizes that if the real problem with the Carter Page FISA applications involved information withheld from the application, improving the Woods procedure won’t fix the problem. In an extended section on oversight, Boasberg strongly suggested that DOJ needs to review whether information was withheld from the application.

Amicus agrees that reviews designed to elicit any pertinent facts omitted from the application, rather than merely verifying the facts that were included, would be extremely valuable, but also recognizes that such in-depth reviews would be extremely resource intensive. See Amicus Letter Br. at 12. He thus recommends that such reviews be conducted periodically at least in some cases and, echoing Samuel Johnson, advises that selection of cases for such reviews should be unpredictable because the possibility that any case might be reviewed “should help concentrate the minds of FBI personnel in all cases.” Id. In its response, the government advised that “it will expand its oversight to include additional reviews to determine whether, at the time an application is submitted to the FISC, there was additional information of which the Government was aware that should have been included and brought to the attention of the Court.” Resp. to Amicus at 13. DOJ advised, however, that given limited personnel to conduct such reviews, it is still developing a process for such reviews and a sampling methodology to select cases for review. ld. The Court sees value in more comprehensive completeness reviews, and random selection of cases to be reviewed should increase that value. As DOJ is still developing the necessary process and methodology, the Court is directing further reporting on this effort.

Amicus also encouraged the Court to require a greater number of accuracy reviews using the standard processes already in place. See Amicus Letter Br. at 12. He believes that the FBI and DOJ have the resources to ensure that auditing occurs in a reasonable percentage of cases and suggested that it might be appropriate to audit a higher percentage of certain types of cases, such as those involving U.S. persons, certain foreign-agent definitions, or sensitive investigative matters. Id. The government did not address Amicus’s recommendation that it increase the number of standard reviews.

Even though accuracy reviews are conducted after the Court has ruled on the application in question, the Court believes that they have some positive effect on future accuracy. In addition to guarding against the repetition of errors in any subsequent application for the same target, they should provide a practical refresher on the level of rigor that should be employed when preparing any FISA application. It is, however, difficult to assess to what extent accuracy reviews contribute to the process as a whole, partly because it is not clear from the information provided how many cases undergo such reviews. The Court is therefore directing further reporting on DOJ’s current practices regarding accuracy reviews, as well as on the results of such reviews.

Finally, the FBI has directed its Office of Integrity and Compliance to work with its Resource Planning Office to identify and propose audit, review, and compliance mechanisms to assess the effectiveness of the changes to the FISA process discussed above. See OIG Rpt. app. 2 at 429. Although the Court is interested in any conclusions reached by those entities, it will independently monitor the government’s progress in correcting the failures identified in the OIG Report.

Again, as I already noted, Boasberg himself found DOJ’s oversight regime inadequate in a 702 opinion written last year. He knows this is insufficient.

But as noted above, all Boasberg can do is order up reports and attestations.

At a minimum, Congress should put legal language behind the oversight he has now demanded twice.

A far better solution, however, would be to provide the oversight on FISA applications that other criminal warrant applications receive: review by defense attorneys in any cases that move to prosecution, which by itself would build in “unpredictabl[y] because the possibility that any case might be reviewed.”

James Boasberg, the presiding judge of the FISA court, issued an order in the middle of a debate about reform that points to several ways FISA should be improved, ways that the he can’t do on his own.

Congress would do well to take note.

Driving Carter Page: What the 302 Says

One of the seventeen Woods violations the DOJ IG Report cites in its list of errors in the Carter Page report involves a chauffeured car.

It involves a June 1, 2017 interview with Yuval Weber, who is the son of Shlomo Weber, the academic who invited Page to speak before the New Economic School. The IG Report seems to raise doubts about the more important allegation here — that Page was rumored to have met with Igor Sechin (which would match a claim made in the Steele dossier).

A June 2017 interview by the FBI of an individual closely tied to the President of the New Economic School in Moscow who stated that Carter Page was selected to give a commencement speech in July 2016 because he was candidate Trump’s “Russia-guy.” This individual also told the FBI that while in Russia in July 2016, Carter Page was picked up in a chauffeured car and it was rumored he met with Igor Sechin. However, the FD-302 documenting this interview, which was included in the Woods File for Renewal Application No. 3, does not contain any reference to a chauffeured car picking up Carter Page. We were unable to locate any document or information in the Woods File that supported this assertion. 371

This week’s release of Mueller 302s includes the 302 from this interview. It shows that, amid a broad discussion of the way that Russia tries to cultivate Americans (including using invitations such as the one offered to Mike Flynn), Weber described,

SA [redacted] later asked why would NES want a speaker [redacted] Weber said that it was because he was Trump’s Russia-guy. The university typically had heads of state and Nobel Laureates as commencement speakers; in fact, Weber claimed they could have any Nobel Laureate they wanted for the speech.

[redacted]

In July, when Page had traveled to give the commencement speech at NES, Weber recalled that it was rumored in Moscow that Page met with Igor Sechin. Weber said that Moscow is filled with gossip and people in Moscow were interested in Page being there. It was known that a campaign official was there.

Page may have briefly met with Arkady Dvorkovich at the commencement speech, considering Dvorkovich was on the board at NES. But Weber was not aware of any special meeting.

[redacted] was not with Page 100% of the time, he met him for dinner, attended the first public presentation, but missed the commencement speech. They had a few other interactions. Page was very busy on this trip.

The 302 notes the follow-up call (but, as the IG Report correctly notes, does not mention the chauffeured car):

On 6/06/2017, SA [redacted] and SA [redacted] conducted a brief telephone follow-up interview of Weber. Weber provided the following information:

SA [redacted] asked a question specifying Weber’s previous statement that it was rumored in Moscow in July of 2016 that Page had met with Igor Sechin, as stated above, Weber said “I think so.” Weber described that Page mentioned in July that he previously met with the Prime Minister of India Narendra Modi. Weber was surprised that Page would meet a head of state, but it made him less surprised about the rumor of Page meeting Sechin.

Weber also told the agents that if they wanted to chase the rumor that Moscow had started monitoring Trump when oligarchs started “moving” money into NY real estate, they should,

…speak to nay billionaire who purchased real estate from Trump, including [redacted] and Kirill Dimitriev.

Dmitriev, of course, is the Russian who successfully reached out to the Trump Transition via Erik Prince and Rick Gerson.

Ultimately, this was still just a rumor, and the FBI accurately noted it as such in the FISA application. The detail about a chauffeured car — which in this day and age could be an Uber! — seems unnecessary to the application, but also did make it into the application in violation of Woods procedures.

Still, as always, the real problems with Page’s applications were not the Woods procedure violations; they involved the more substantive exculpatory information that didn’t make it into the application.

The Carter Page Clauses in the FISA Reform Bill Wouldn’t Help Carter Page

The House Judiciary Committee has released a mark-up for a bill that would reauthorize Section 215 and make some improvements. It’s not a bad bill. It would:

  • End the Call Detail Record program and prohibit prospective call record collection
  • Include notice for 215 collection
  • End FBI’s exemption for reporting requirements
  • Improve the FISA amicus
  • Impose deadlines for releasing FISA orders

But the bill almost certainly doesn’t accomplish the things it first set out to do, to provide added protections for someone like Carter Page. It does this in two ways.

First, it requires the Privacy and Civil Liberties Oversight Board to complete a report on how much First Amendment activities or race, ethnicity, national origin, religion, or sex are used in targeting decisions under FISA.

SEC. 303. REPORT ON USE OF FISA AUTHORITIES REGARDING PROTECTED ACTIVITIES AND PROTECTED CLASSES.

(a) REPORT.—Not later than one year after the date of the enactment of this Act, the Privacy and Civil Liberties Oversight Board shall make publicly available, to the extent practicable, a report on—

(1) the extent to which the activities and protected classes described in subsection (b) are used to support targeting decisions in the use of authorities pursuant to the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.); and

(2) the impact of the use of such authorities on such activities and protected classes.

(b) ACTIVITIES AND PROTECTED CLASSES DESCRIBED.—The activities and protected classes described in this subsection are the following:

(1) Activities and expression protected by the First Amendment to the Constitution of the United States.

(2) Race, ethnicity, national origin, religious affiliation, sex, and any other protected characteristic determined appropriate by the Board.

(c) FORM.—In addition to the report made publicly available under subsection (a), the Board may submit to the appropriate congressional committees a classified annex.

One would imagine that Carter Page, whom the Republicans think was targeted because he volunteered for the Trump campaign, would be among the people bill drafters had in mind for First Amendment protect activities.

Except he wouldn’t be included, for two reasons.

First, PCLOB’s mandate is limited to counterterrorism programs. That didn’t matter for their very good Section 215 report, because they were examining only the CDR program, which itself was limited to terrorism (and Iran).

But it did matter for the Section 702 report. In fact, PCLOB ignored some of the most problematic practices under Section 702, conducted under the guise of cybersecurity, because that’s outside their mandate! It also didn’t explore the impact of NSA’s too-broad definition of targeting under the Foreign Government certificate.

In this case, unless you expand the scope of PCLOB, then this report would only report on the targets of terrorism FISA activity, not foreign intelligence FISA activity, and so not people like Carter Page.

Carter Page would also not be covered under this and a clause attempting to ensure the FISA amicus reviews applications with any First Amendment component.

(a) EXPANSION OF APPOINTMENT AUTHORITY.— Subparagraph (A) of section 103(i)(2) (50 U.S.C. 1803(i)(2)) is amended to read as follows:

‘‘(A) shall appoint an individual who has been designated under paragraph (1) to serve as amicus curiae to assist such court in the consideration of any application for an order or review that, in the opinion of the court—

‘‘(i) presents a novel or significant interpretation of the law, unless the court issues a finding that such appointment is 16 not appropriate; or

‘‘(ii) presents significant concerns with respect to the activities of a United States person that are protected by the first amendment to the Constitution, unless the court issues a finding that such appointment is not appropriate; and’’.

Here, the problem has to do with the investigation into Carter Page, and the way I understand FISA was written originally.

As I note in this post, DOJ IG didn’t figure out until 11 days after it published the Carter Page IG Report that the FBI used (and may still use) the same investigative code for both FARA — which by definition has a political component — and 18 USC 951 — which doesn’t need to have. The report as a whole had a long discussion of the standard to get beyond First Amendment considerations, as if all four Trump flunkies targeted under Crossfire Hurricane would qualify.

FISA provides that a U.S. person may not be found to be a foreign power or an agent of a foreign power solely upon the basis of activities protected by the First Amendment. 129 Congress added this language to reinforce that lawful political activities may not serve as the only basis for a probable cause finding, recognizing that “there may often be a narrow line between covert action and lawful activities undertaken by Americans in the exercise of the [F]irst [A]mendment rights,” particularly between legitimate political activity and “other clandestine intelligence activities. “130 The Report by SSCI accompanying the passage of FISA states that there must be “willful” deception about the origin or intent of political activity to support a finding that it constitutes “other clandestine intelligence activities”:

If…foreign intelligence services hide behind the cover of some person or organization in order to influence American political events and deceive Americans into believing that the opinions or influence are of domestic origin and initiative and such deception is willfully maintained in violation of the Foreign Agents Registration Act, then electronic surveillance might be justified under [“other clandestine intelligence activities”] if all the other criteria of [FISA] were met. 131

129 See 50 U.S.C. §§ 1805(a)(2)(A), 1824(a)(2)(A).

130 H. Rep. 95-1283 at 41, 79-80; FISA guidance at 7-8; see also Rosen, 447 F. Supp. 2d at 547-48 (probable cause finding may be based partly on First Amendment protected activity).

131 See S. Rep. 95-701 at 24-25. The Foreign Agents Registration Act, 22 U.S.C. § 611 et seq., is a disclosure statute that requires persons acting as agents of foreign principals such as a foreign government or foreign political party in a political or quasi-political capacity to make periodic public disclosure of their relationship with the foreign principal, as well as activities, receipts and disbursements in support of those activities.

Except it miscited the reference to the Senate Report. The citation, as written, goes to a passage of the Senate Report that says that if a potential target is acting under the direction of an intelligence service of a foreign power, they can be targeted even for their political activities.

It is the intent of this requirement that even if there is some substantial contact between domestic groups or individual citizens and a foreign power, as defined in this bill, no electronic surveillance wider this subparagraph may be authorized unless the American is acting under the direction of an intelligence service of a foreign power.

The investigation into Carter Page started because he kept sharing non-public economic information with people he knew to be Russian intelligence officers (it was probably started as some kind of economic espionage case).

That is, even before he joined the campaign, FBI had gotten beyond the bar that would treat Page’s targeting as a First Amendment concern, because the entire suspicion stemmed from Page’s explicit willingness to act at the direction of Russia’s intelligence service.

Don’t get me wrong. These are both improvements, with the amicus review for First Amendment activities especially (indeed, I suspect that’s what some of the applications that FBI withdrew in recent years pertained to).

But to do what this bill wants to do on the PCLOB report, you’d have to expand the mandate of PCLOB to cover hacking and spying — something that should happen in any case. That’s especially crucial in this case, given that one of the ethnicities most affected by FISA are Chinese Americans, but as suspected spies, not as suspected terrorists.

And if you want Carter Page to get these enhanced protections, you’d need to change how working for a foreign country affects the First Amendment calculation on FISA.

[Photo: National Security Agency, Ft. Meade, MD via Wikimedia]

The Geostrategic and Historic Implications of Crypto

If you haven’t already, you should read the superb WaPo story on Crypto, the Swiss encryption company that German and US intelligence agencies secretly owned, allowing them to degrade the encryption used by governments all over the world. The story relies on classified CIA and BND histories obtained by the paper and a German partner.

The decades-long arrangement, among the most closely guarded secrets of the Cold War, is laid bare in a classified, comprehensive CIA history of the operation obtained by The Washington Post and ZDF, a German public broadcaster, in a joint reporting project.

[snip]

The Post was able to read all of the documents, but the source of the material insisted that only excerpts be published.

The CIA and the BND declined to comment, though U.S. and German officials did not dispute the authenticity of the documents. The first is a 96-page account of the operation completed in 2004 by the CIA’s Center for the Study of Intelligence, an internal historical branch. The second is an oral history compiled by German intelligence officials in 2008.

From the 1970s until the early 2000s, the company ensured its encryption had weaknesses that knowing intelligence partners — largely the NSA — exploited. CIA retained control of the company until 2018.

The WaPo correctly puts Crypto in a lineage that includes later spying and politicized fights over which corporations run the global telecommunications system. But it curiously suggests that the US “developed an insatiable appetite for global surveillance” from the project, as if that’s a uniquely American hunger.

Even so, the Crypto operation is relevant to modern espionage. Its reach and duration helps to explain how the United States developed an insatiable appetite for global surveillance that was exposed in 2013 by Edward Snowden. There are also echoes of Crypto in the suspicions swirling around modern companies with alleged links to foreign governments, including the Russian anti-virus firm Kaspersky, a texting app tied to the United Arab Emirates and the Chinese telecommunications giant Huawei.

Any nation-state or powerful non-state actor is going to want access to as much information as it can obtain. Russia, the Gulf states, and China, as well as the unmentioned Israel, are no different.

The story is better understood, in my opinion, as a lesson in how the US, Cold War partner Germany, and several key individuals and companies who could be motivated by Cold War ideology accomplished its spying. It absolutely provides important background to current US efforts to prevent rivals from achieving hegemony over communication structures. But if you didn’t know the US is so worried about Huawei’s dominance because it gives China a way to supplant the US spying footprint, you’re not paying attention.

Some particular features:

  • Crytpo was a Swiss company. That gave it some plausible deniability.
  • The operation struggled to find cryptologists who were good, but not too good. People who could identify weaknesses in the algorithms Crypto used either had to be fired or bought off.
  • The entire scheme worked off a corruption of market forces. The predecessor to Crypto sold shitty encryption to disfavored countries, but the US made up for the lost profits. Then, as integrated circuits presented a challenge for the business, the US leveraged that to get ongoing cooperation. Then CIA and BND bought out the company via a shell company set up in Lichtenstein. To sustain its customer base, Crypto would smear competitors and bribe customers with gifts and prostitutes.
  • The US leveraged its power in the US-German partnership at the core of the operation, forcing the Germans to sell degraded products to allied governments.
  • The ideology of the Cold War proved a powerful motive for some of the key participants, leading them to work for what ultimately was the CIA for no additional funds.

Those features are worth noting as you consider where this capability moved to as Crypto became less valuable:

  • AT&T and other US backbone providers
  • Silicon Valley companies compelled under Section 702 of FISA
  • Various products supported by CIA’s investment arm, In-Q-Tel
  • SWIFT

702 is the big outlier — in that the US government leveraged existing market dominance and actually didn’t hide what was going on to those who paid attention. But that’s changing. The US government is increasingly demanding that its 702 partners — notably both Apple and Facebook — make choices dictated not by a market interest in security but by their demands.

The WaPo story cites some “successes:” nearly complete visibility on Iran, a critical advantage for the UK in the Falklands war, and visibility on Manuel Noriega as he started to outgrow his client role. One wonders what would have happened if the US or its allies had lost visibility on all those key strategic points.

WaPo focuses its challenge to this spying, however, on what the US had to have known about but overlooked: assassination, ethnic cleansing, and atrocities.

The papers largely avoid more unsettling questions, including what the United States knew — and what it did or didn’t do — about countries that used Crypto machines while engaged in assassination plots, ethnic cleansing campaigns and human rights abuses.

The revelations in the documents may provide reason to revisit whether the United States was in position to intervene in, or at least expose, international atrocities, and whether it opted against doing so at times to preserve its access to valuable streams of intelligence.

Nor do the files deal with obvious ethical dilemmas at the core of the operation: the deception and exploitation of adversaries, allies and hundreds of unwitting Crypto employees. Many traveled the world selling or servicing rigged systems with no clue that they were doing so at risk to their own safety.

I’m actually more interested in the latter case, though (though after all, the US was overlooking atrocities in Iran, Panama, and Argentina, in any case).

These atrocities were known in real time, but ideology — largely, the same Cold War ideology that convinced some of the engineers to play along quietly — served to downplay them. The ideology that excuses much of our current spying, terrorism, likewise leads many to excuse Americans and allies overlooking atrocities by our allies (but that, too, is evident without proving they’re reading the SIGINT proving it).

But the solutions to this problem have as much to do with fixing ideology and market forces behind the power structures of the world as it does with protecting the encryption that people around the world can access.

The Very Limited Republican Concern about FISA

There are a number of FISA submissions made by the Trump Administration that the FISA Court has found problematic. They include:

March 24-27, 2017: FBI conducts queries on FISA data using identifiers for over 70,000 facilities associated with persons with access to FBI facilities and systems (noticed to the court on November 22, 2017)

April 7, 2017: Reauthorization of Carter Page FISA, signed by Jim Comey and Dana Boente, at a time when probable cause was thin and contrary evidence mounting

June 29, 2017: Reauthorization of Carter Page FISA, signed by Andrew McCabe and Rod Rosenstein, at a time when few believed the order was producing valuable intelligence and abundant contrary evidence was known

October 11, 2017: FBI conducts queries to identify cleared personnel on whom to serve process (noticed to the court on February 21, 2018)

November 22, 2017: FBI takes 8 months before notifying FISC of the March 2017 queries

December 1, 2017: FBI conducts over 6,800 queries using a group of social security numbers (noticed to the court on April 27, 2018)

December 7-11, 2017: FBI conducts queries on the identifiers of 1,600 people (noticed to the court on April 12, 2018)

Unknown date: FBI conducts queries of 57,000 identifiers (or individuals) that may not have been designed to return foreign intelligence information (noticed to the court on April 13, 2018)

February 5 and 23, 2018: FBI conducts 30 queries on potential sources (noticed to the court on June 7, 2018)

February 21, 2018: FBI conducts 45 queries on persons being considered as sources (noticed to the court on May 21, 2018)

March 27, 2018: Submission of FBI 702 querying procedures, accompanying an application that included a declaration from Christopher Wray, that fell far short of what Congress recently required

September 18, 2018: Submission of FBI 702 querying procedures that still fall short of standards mandated by Congress, including a supplemental declaration from Wray that relies, in part, on FBI’s “strong culture that places great emphasis on personnel consistently conveying true and accurate information”

Not only did both the Carter Page applications from which DOJ withdrew its probable cause claim come under the Trump Administration, but a slew of fairly alarming uses of FISA data happened under Trump as well. A bunch of them occurred under Chris Wray. Indeed, Chris Wray submitted a declaration to the FISC in September 2018 — long after there were questions about the Carter Page FISAs — suggesting the FBI shouldn’t have to write stuff down as it queries 702 data, in spite of what Congress required by law.

The Director anticipates that approach would divert resources from investigative work, delay assessment of threat information, and discourage its personnel from querying unminimized FISA information, to the detriment of public safety. Id. at 9-12. He also describes an alternative approach whereby personnel would be allowed to forgo such research and rely solely on their “personal knowledge” in making those assessments. Id. at 12. The Director expects that practice would “result in inconsistent and unreliable information in FBI systems,” id., thereby complicating other aspects of the FBI’s work – e.g., implementing its Section 702 targeting procedures. Id. at 13-14. The Director also expresses concern that such an approach would be inconsistent with the FBJ’s “strong culture that places great emphasis on personnel consistently conveying true and accurate information.” Id. at 14.

[snip]

The government further objects that requiring a written justification to examine the contents provided in response to U.S.-person queries of Section 702 information “would substantially hinder the FBI’s ability to investigate and protect against threats to national security.” Supplemental FBI Declaration at 17. Different fo1ms of hindrance are claimed.

[snip]

[At the heart of the government’s objections to the documentation requirement proposed by amici is an understandable desire to ensure that FBI personnel can] perform their work with the utmost efficiency and “connect dots” in an effort to protect the national security. Given the lessons learned following 9/11 and the Fort Hood shooting, as well as the FBI’s significant reliance on queries to effectively and efficiently identify threat streams in its holdings, the FBI is extremely concerned about anything that would impede, delay, or create a disincentive to querying FBI databases. Supplemental FBI Declaration at 7 (emphasis added).

Yet in spite of the fact that Chris Wray, himself, participated in a 18-month effort to ignore the will of Congress with respect to 702 queries, no one raised that in yesterday’s oversight hearing. Not to mention the GOP got plenty of facts wrong, such as treating FISA as a terrorism thing, and not, increasingly, the very same counterintelligence purpose used with Page.

To be sure, aside from some comments acknowledging that IG Report, Democrats weren’t raising any questions about FISA (though Jerry Nadler did thank Jim Sensenbrenner for agreeing to delay consideration of Section 215 reauthorization to allow for consideration of the IG Report).

Here’s the thing, though: The FISA Court has complained about FBI surveillance practices all occurring under Trump affecting up to 135,476 Americans.

And Republicans claiming to give a goddamn about FISA are really just concerned about one of those Americans.

Which is a pretty good indication they’re not really concerned about the surveillance at all.

Mike Flynn Seizes the Rope to Hang Himself With: Flynn’s Motion to Dismiss Carter Page’s Non-Existent Plea

As I noted yesterday, Mike Flynn’s legal team and the government submitted a bunch of filings yesterday.

I’m collectively titling my posts on them, “Mike Flynn Seizes the Rope to Hang Himself,” which is the advice Rob Kelner gave his then-client in December 2018 when Judge Emmet Sullivan swore him in to reallocute his guilty plea, effectively arguing that if Flynn withdrew his plea, it would lead to worse consequences. Flynn’s current lawyer, Sidney Powell, argues that advice was objectively incompetent. I predict the outcome of the next few weeks will show Kelner had the better judgment.

This post from yesterday covers the government reply to Flynn’s sentencing memo.

This post will focus on Flynn’s motion to dismiss for misconduct, a 27-page motion that Flynn submitted yesterday with neither warning nor pre-approval from Sullivan. Flynn has made much of this argument before (and Sullivan has rejected it) in a filing that argued,

The government works hard to persuade this Court that the scope of its discovery obligation is limited to facts relating to punishment for the crime to which Mr. Flynn pleaded guilty. However, the evidence already produced or in the public record reveals far larger issues are at play: namely, the integrity of our criminal justice system and public confidence in what used to be our premier law enforcement institution. When the Director of the FBI, and a group of his close associates, plot to set up an innocent man and create a crime—while taking affirmative steps to ensnare him by refusing to follow procedures designed to prevent such inadvertent missteps—this amounts to conduct so shocking to the conscience and so inimical to our system of justice that it requires the dismissal of the charges for outrageous government conduct.

[snip]

As new counsel has made clear from her first appearance, Mr. Flynn will ask this Court to dismiss the entire prosecution based on the outrageous and un-American conduct of law enforcement officials and the subsequent failure of the prosecution to disclose this evidence— which it had in its possession all along—either in a timely fashion or at all.

In a footnote in yesterday’s filing, Flynn lawyer Sidney Powell explains that, no, the last time she tried this argument, which Sullivan rejected in an unbelievably meticulous 92 page opinion, wasn’t actually her motion to dismiss, this is,

Contrary to a suggestion in this Court’s recent opinion, Mr. Flynn did not previously move to dismiss the case against him. ECF No. 144 at 2. As the docket sheet and this Court’s recital of motions show, this is Mr. Flynn’s only Motion to Dismiss. In Mr. Flynn’s previous filings, he made clear he would ultimately move for dismissal, that the evidence requested in his Brady motion would further support the basis for dismissal, and that the case should be dismissed.

Particularly given that much of this repeats what Powell said in the earlier motion, the claim that this is the real motion to dismiss probably won’t sit well with Judge Sullivan. But Powell has to try again, because (as I’ll show) her motion to dismiss doesn’t actually claim that Flynn is innocent of lying to the FBI about his call with Sergey Kislyak — he says the opposite. So this motion to dismiss appears designed to explain why Flynn should not be held accountable for that lie.

Powell justifies doing so because she claims she found new damning information in the IG Report on Carter Page. (She also complains that she received Flynn’s 302s since the prior motion, but presents not a single piece of evidence from them; as I’ll show in my third post on these filings, she’s probably going to regret raising them.)

Such exculpatory evidence and outrageous misconduct includes that on December 9, 2019, the Inspector General of the Department of Justice (“DOJ”) issued its 478-page report on the “Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation” (“IG Report”).2 The IG Report illustrates the misconduct by the government as further detailed below.

[snip]

Additionally, the IG Report shows that the government long suppressed evidence of shocking malfeasance by the leadership of the FBI and Supervisory Special Agent 1 (“SSA 1”) that was favorable to Mr. Flynn’s defense. For these reasons, and those outlined in prior briefing, Mr. Flynn moves to dismiss this entire prosecution for outrageous government misconduct and in the interest of justice.

In a probably ill-considered move, Powell blames Sullivan for not considering the IG Report in his previous opinion.

Despite the defense, the government, and this Court agreeing to abate the schedule in this case because of the pending and admittedly-relevant IG Report (ECF No. 140 and this Court’s Minute Order of November 27, 2019), this Court denied Mr. Flynn’s Motion to Compel Production of Brady Evidence without allowing for additional briefing in light of that report or considering any of the deliberate government misconduct it disclosed. ECF Nos. 143 and 144. Mr. Flynn now moves to dismiss the indictment for the additional egregious misconduct documented in the IG Report, other recently produced materials, all previously briefed issues, and in the interest of justice.

A week passed between the time the IG Report came out — which has just one small section relating to Flynn — and the date Sullivan issued his opinion. It is Powell’s job to ask him to consider any new information in it, not his job to cull through the report and find out if anything is relevant. She did not do so. Which is one of many reasons why Sullivan would be in his right to just dismiss this as untimely.

As I note in this thread, much of what follows is either a repetition of complaints that Sullivan already rejected or a claim that Mike Flynn, honored General of thirty years, is actually Carter Page, maligned gadfly, because they describe things that did injure Page but did not injure Flynn and are utterly irrelevant to the lies Flynn told on January 24, 2017.

  • Asks that Sullivan rely on a Ninth Circuit opinion on the Bundy family to reconsider Brady violations he already ruled did not happen.
  • Revisits a Jim Comey comment that was briefed before Flynn pled guilty the last time and Powell’s conspiracy theories about a draft 302 that she claims differs from the notes and the released 302s which are all consistent.
  • Invokes Ted Stevens by invoking the Henry Shuelke report, which laid out problems with the Senators prosecution, but which Sullivan has already said is an inapt comparison.
  • Mixes up the 2017 FISA order that shows (in part) that Flynn, personally, presided over FISA abuses with the 2018 FISA order that shows Chris Wray’s FBI committed querying violations that affected thousands (quite possibly in an attempt to find out who leaked details of Flynn’s comments to Sergei Kislyak).
  • Claims that the Carter Page FISA allowed the FBI to illegally obtain the communications of “hundreds of people, including Mr. Flynn,” which is a claim that doesn’t show up in the IG Report (Powell cites to it “generally,” which is her tell in this motion that she’s making shit up); while it’s possible emails from the campaign (possibly group emails on National Security) involving both Page and Flynn were collected, there is zero chance any of them pertain to the lies Flynn told on January 24, 2017. Moreover, there is virtually no chance that Flynn was communicating with Carter Page after April 2017 via encrypted messaging apps — months after both had been ousted from Trump’s circles because of their problematic interactions with Russians — which is what it likely would have taken to have been collected under the applications deemed problematic by FBI.
  • Twice claims that Flynn’s obligation (which he fulfilled) to tell DIA when he went traipsing off to RT Galas in Russia equates to CIA’s designation of Carter Page as an acceptable contact and notes that Sullivan already ruled that wasn’t exculpatory on the charges before him (the government has made it clear Flynn’s DIA briefing was actually inculpatory).
  • Claims SSA1 — whom Powell asserts, probably but not necessarily correctly, is the second Agent who interviewed Flynn — supervised Crossfire Hurricane, but doesn’t note that was only until December 2016, at least four weeks before Flynn lied to FBI agents on January 24, 2017; Powell repeatedly claims, falsely, that SSA1 supervised Crossfire Hurricane during the entire period when Carter Page was under surveillance.
  • Insinuates, with no evidence, that SSA1 knew that Case Agent 1 had excluded comments from George Papadopoulos that the frothy right believes are exculpatory but which the FBI judged correctly at the time were just a cover story.
  • Claims falsely that Lisa Page had a role in opening an investigation into Flynn.
  • Complains that the FISA applications made statements about Stefan Halper that were true but not backed by paperwork in the Woods File, even though (contrary to Flynn’s conspiracy theories) Halper never spoke with Flynn as part of tihs investigation.

Pages and pages into this, Powell admits that actually all of this would matter if she were representing Carter Page, but she claims (with no evidence, and given the scope of the Page warrants, there would be none) that it nevertheless injures her client.

While Mr. Flynn’s case is not even the focus of the IG Report, the Report reveals illegal, wrongful, and improper conduct that affected Mr. Flynn, and is the subject of an ongoing criminal investigation by United States Attorney John Durham.

Even where the IG Report does describe something that affected Flynn directly — in SSA1’s inclusion in Trump’s first briefing, in part, to see what kinds of questions he was asking — Powell manages to lard it with false claims. On top of misrepresenting how long SSA1 oversaw the investigation into Trump’s flunkies (noted above and exhibited specifically below), Powell suggests that SSA1 snuck into the August 17, 2016 intelligence briefing Flynn attended as Trump’s top national security advisor and had no purpose but to observe her client.

There were two FBI agents who interviewed Mr. Flynn in the White House on January 24, 2017—Agent Peter Strzok and SSA 1. The IG Report confirms both participated in government misconduct. As explained in further detail below, not only was Strzok so biased, calculated, and deceitful he had to be terminated from Mueller’s investigation and then the FBI/DOJ, but it has also now been revealed that SSA 1 was surreptitiously inserted in the mock presidential briefing on August 17, 2016, to collect information and report on Mr. Trump and Mr. Flynn. Moreover, SSA 1 was involved in every aspect of the debacle that is Crossfire Hurricane and significant illegal surveillance resulting from it. Further, SSA 1 bore ultimate responsibility for four falsified applications to the FISA court and oversaw virtually every abuse inherent in Crossfire Hurricane— including suppression of exculpatory evidence. See generally IG Report.

[snip]

Shockingly, as further briefed below, SSA 1 also participated surreptitiously in a presidential briefing with candidate Trump and Mr. Flynn for the express purpose of taking notes, monitoring anything Mr. Flynn said, and in particular, observing and recording anything Mr. Flynn or Mr. Trump said or did that might be of interest to the FBI in its “investigation.” IG Report at 340

[snip]

More specifically, as the Inspector General explained further in his testimony to Congress on December 11, 2019, SSA 1 surreptitiously interviewed and sized-up Mr. Flynn on August 17, 2016, under the “pretext” of being part of what was actually a presidential briefing but reported dishonestly to others as a “defensive briefing.”

[snip]

Strzok and Lisa Page texted about an “insurance policy” on August 15, 2016.20 They opened the FBI “investigation” of Mr. Flynn on August 16, 2016. IG Report at 2. The very next day, SSA 1 snuck into what was represented to candidate Trump and Mr. Flynn as a presidential briefing. IG Report at 340. [my emphasis]

The overwhelming bulk of her complaint about this is that — she claims — SSA1’s participation was secret. Reading this motion, you’d think he was hidden under the couch while the briefing was conducted. His presence, of course, was in no way surreptitious. What was secret was that Flynn was under investigation and SSA1 was overseeing it.

In one of her discussions of the briefing, Powell quotes the part of the IG Report that refutes her suggestions that SSA1 was only in this briefing to observe Flynn.

In August 2016, the supervisor of the Crossfire Hurricane investigation, SSA 1, participated on behalf of the FBI in an ODNI strategic intelligence briefing given to candidate Trump and his national security advisors, including Flynn, and in a separate briefing given to candidate Clinton and her national security advisors. The stated purpose of the FBI’s participation in the counterintelligence and security portion of the briefing was to provide the recipients ‘a baseline on the presence and threat posed by foreign intelligence services to the National Security of the U.S.’ However, we found the FBI also had an investigative purpose when it specifically selected SSA 1, a supervisor for the Crossfire Hurricane investigation, to provide the FBI briefings. SSA 1 was selected, in part, because Flynn, who would be attending the briefing with candidate Trump, was a subject in one of the ongoing investigations related to Crossfire Hurricane. SSA 1 told us that the briefing provided him ‘the opportunity to gain assessment and possibly some level of familiarity with [Flynn]. So, should we get to the point where we need to do a subject interview…I would have that to fall back on.’

As the passage she quotes makes clear, that was just part of the reason why he was selected. She doesn’t mention that, as a senior counterintelligence agent, SSA1 was appropriate to give the briefing in any case, and in fact did give the equivalent first briefing to Hillary, as well.

In one place, however, Powell totally misrepresents what the purpose of this briefing was claiming that it was the defensive briefing about specific threats to the candidate.

While SSA 1’s stated purpose of the presidential briefing on August 17, 2016, was “to provide the recipients ‘a baseline on the presence and threat posed by foreign intelligence services to the National Security of the U.S,’” IG Report at xviii (Executive Summary), the IG Report confirmed that, in actuality, the Trump campaign was never given any defensive briefing about the alleged national security threats. IG Report at 55. Thus, SSA 1’s participation in that presidential briefing was a calculated subterfuge to record and report for “investigative purposes” anything Mr. Flynn and Mr. Trump said in that meeting. IG Report at 408. The agent was there only because Mr. Flynn was there. IG Report at 340. Ironically, Mr. Flynn arranged this meeting with ODNI James Clapper for the benefit of candidate Trump.

As the IG Report makes clear, these are different things. The IG Report even provides several different explanations for why the FBI did not give Trump a defensive briefing that Russia was trying to influence his campaign, but which Powell doesn’t include. Andrew McCabe’s explanation was particularly prescient.

[T]he FBI did not brief people who “could potentially be the subjects that you are investigating or looking for.” McCabe told us that in a sensitive counterintelligence matter, it was essential to have a better understanding of what was occurring before taking an overt step such as providing a defensive briefing.

You couldn’t brief Trump on a potential Russian threat with Flynn present because Flynn was considered — because of his past close ties to the GRU and his paid appearances with Russian entities, including one where he met Putin — one of the most likely people for Russia to have alerted about the email hack-and-dump plan. And, as I noted, there was a bunch of language about counterintelligence issues in the government’s original sentencing memo specifically pertaining to Flynn that should concern him if he weren’t so busy producing fodder for the frothy right. So, in fact, the FBI was right to worry (and I suspect we may hear more about this).

Moreover, as this entire effort to blow up the plea deal emphasizes, Flynn turned out to be an egregious counterintelligence risk for other reasons, as well: the secret deal he was arranging with Turkey even as this briefing occurred, which he explained, at length, under oath, to the grand jury. That is, this proceeding makes it clear that the FBI was right not to trust Mike Flynn, because, days before this briefing, his firm had committed, in secret to working on a frenemy government’s payroll.

This is tangential to Powell’s trumped up complaints about the only thing the IG Report says that directly affected her client. But — as with so much of this stunt — my suspicion is that if she presses this issue it will backfire in spectacular fashion.

In any case, the main takeaway from this motion to dismiss the plea is that virtually all the new stuff that Judge Sullivan hasn’t already ruled was irrelevant in meticulous fashion doesn’t affect Mike Flynn, it affects Carter Page. And the stuff that does affect Flynn directly is probably not something he wants to emphasize before Sullivan weighs the gravity of his lies.

More importantly, for the motion to withdraw his plea, nothing here undercuts the fact that Mike Flynn pled guilty to his lies about Russia.

Joshua Schulte Spoke Positively of Edward Snowden the Day Snowden Came Forward

Here I thought that Joshua Schulte’s lawyers had finally come up with a decent argument, that Paul Rosenzweig’s testimony would be pointless to prove that Schulte, in choosing to leak to WikiLeaks, intended to damage the US because the government would have to prove Schulte knew of WikiLeaks when he allegedly first stole the CIA documents in May 2016.

But after pointing out that Schulte’s lawyers already blew their chance to make that argument, in a response the government  then pointed out how bad this argument is: because Schulte’s lawyers have already admitted that, “of course, Mr. Schulte knew” about Chelsea Manning’s leaks.

As an initial matter, the defendant’s Reconsideration Motion directly contradicts the argument he made in his original motions in limine concerning Mr. Rosenzweig’s testimony. The defendant argues in the instant motion that Mr. Rosenzweig’s testimony should not be admitted because there is no evidence that the defendant knew of, for example, Chelsea Manning’s disclosures to WikiLeaks. In his original opposition to the Government’s motions in limine, however, the defendant argued the exact opposite:

Next, the government says that it intends to introduce evidence of Mr. Schulte’s “knowledge of [Ms.] Manning’s leak.” Gov. Res. 11. The release of documents by Ms. Manning was front page news in every major news publication for numerous days. Of course, Mr. Schulte knew about it; so did everyone else who picked up a newspaper. It is not clear what the expert would have to add to this information. (Dkt. 242 at 44).

Worse, the government lays out not just that Schulte wrote about both Manning’s leaks to WikiLeak and Edward Snowden’s leaks, but discloses that they intend to introduce those chats at trial.

Moreover, even setting aside the dubious assertion that a member of the U.S. intelligence community could have been completely unaware of WikiLeaks’ serial disclosures of classified and sensitive information and the resulting harm, the Government’s proof at trial will include evidence that the defendant himself was well aware of WikiLeaks’ actions and the harms it caused. For example, WikiLeaks began to disclose classified information Manning provided to the organization beginning in or about April 2010, including purported information about the United States’ activities in Afghanistan. In electronic chats stored on the defendant’s server, the defendant discussed these disclosures. For example, on August 10, 2010, the defendant wrote in a chat “you didn’t read the wikileaks documents did you?” and, after that “al qaeda still has a lot of control in Afghanistan.” In addition, on October 18, 2010, the defendant had another exchange in which he discussed Manning’s disclosures, including the fact that the information provided was classified, came from U.S. military holdings, and that (according to the defendant) it was easy for Manning to steal the classified information and provide it to WikiLeaks. Similarly, in a June 9, 2013 exchange, the defendant compared Manning to Edward Snowden, the contractor who leaked classified information from the National Security Agency, and stated, in substance and in part, that Snowden, unlike Manning, “didnt endanger in [sic] people.”

Effectively, the government is going to show that Schulte — who like Snowden worked at both CIA and NSA (though in reverse order) — had decided the day that Snowden revealed himself that he hadn’t endangered someone.

I suggested in this post that the government appears to be preparing to use Schulte as an exemplar of an ongoing conspiracy, complete with their reliance on organized crime precedents.

[T]he government is preparing to argue that Schulte intended to harm the United States when he leaked these files to WikiLeaks, a stronger level of mens rea than needed to prove guilt under the Espionage Act (normally the government aims to prove someone should have known it could cause harm, relying on their Non-Disclosure Agreements to establish that), and one the government has, in other places, described as the difference between being a leaker and a spy.

To make that argument, the government is preparing to situate Schulte’s leaks in the context of prior WikiLeaks releases, in a move that looks conspicuously like the kind of ongoing conspiracy indictment one might expect to come out of the WikiLeaks grand jury, one that builds off some aspects of the existing Assange indictment.

That is, the government appears to be using Schulte to lay out their theory — rolled out in the wake of the Vault 7 leaks — that WikiLeaks is a non-state hostile intelligence service.

To be sure, there’s nothing in the least bit incriminating about talking about Snowden in real time. But it will make it a lot easier to hold Schulte accountable for leaking stuff in a far more damaging way in 2016 than Snowden did in 2013.

As I disclosed in 2018, I provided information to the FBI in 2017.

FISC Reveals DOJ Has Withdrawn Probable Cause Assertion for Two of Carter Page Applications

The FISA Court just declassified an order — issued on January 7 — revealing that along with the previously released December 9 order listing problems with the Carter Page applications, DOJ also reassessed its previous probable cause assessment.

DOJ assesses that with respect to the applications in Docket Number 17-375 and 17-679, “if not earlier, there was insufficient predication to establish probable cause to believe that [Carter] Page was acting as an agent of a foreign power.”

[snip]

The Court understands the government to have concluded, in view of the material misstatements and omissions, that the Court’s authorizations in Docket Numbers 17-375 and 17-679 were not valid. The government apparently does not take a position on the validity of the authorizations in Docket Numbers 16-1182 and 17-52, but intends to sequester information acquired pursuant to those dockets in the same manner as information acquired pursuant to the subsequent dockets.

The function of this January 7 order is to demand that FBI follow up on a previous agreement to “sequester all collection the FBI acquired pursuant to the Court’s authorizations in the above-listed four docket numbers targeting [Carter] Page pending further review of the OIG Report and the outcome of related investigations and any litigation,” to explain how it is doing so, how it has chased down all information collected pursuant to the Page orders, and why it needs to keep the data at all.

The reason it needs to keep the data, incidentally, is in case it is sued or John Durham decides to prosecute someone (including Kevin Clinesmith, who altered an email that was used as back-up to the final renewal application) or Page decides to sue. Indeed, one of the most unprecedented aspects of this order is that the docket numbers have been declassified, which will make FOIAing the records far easier.

Which is probably what the only substantive redaction remaining in the order pertains to: the possibility that someone will be held liable under FISA for illegal surveillance.

A lot of people are assuming that DOJ took this stance only because Bill Barr wanted to prove that Trump was illegally wiretapped (which would only be true if he was in direct contact with Page, which everyone has denied). That’s certainly possible!

But it’s quite possible that DOJ and FBI feel the need to be proactive on this point and FISC — particularly given the letters it has received from Congress — feels the need to look stern. Moreover, it is in everyone’s interest for DOJ to withdraw at least the last application (the one influenced by Clinesmith’s actions). It’s an important precedent, and there’s no reason Carter Page’s personal data should be floating around the FBI after discovering he was improperly surveilled. This doesn’t mean the FBI didn’t have reason to investigate Page. In a March 23, 2017 interview, after all, Carter Page was quite clear he knew he was being recruited by Russian intelligence officers and he believed the more immaterial non-public information he gives them, the better off we are.

But, first of all, he wasn’t hiding his happiness to share information with Russian spies, meaning he wasn’t acting in the clandestine matter that would merit a FISA order. And by April 2017, it was pretty clear that the Russians had lost all interest in recruiting Page.

In any case, FISC’s demand for what the government is doing with the data is not unusual. Similar things have happened virtually every other time the government did something improper.

There’s one more important lesson, though: Even from the start, people raised questions about whether the applications targeting Page were prudential. By the third application — the first one being withdrawn — there were not only real questions about whether it would yield anything more, but whether Page was central enough to their investigation to want to surveil him. Had the FBI simply not pursued surveillance it questioned whether it really needed, the worst revelations of the IG Report would have been avoided.

So one of the lessons of this whole fiasco is that the FBI would benefit from giving greater consideration about whether its most intrusive methods are necessary.

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