May 25, 2020 / by 

 

Ron Wyden Hints at How the Intelligence Community Hides Its Web Tracking Under Section 215

Ron Wyden had an amendment to Section 215 that would have limited the use of that provision to obtain web traffic information that fell one vote short in the Senate, partly because Nancy Pelosi whipped Tom Carper against it and partly because two Senators (Bernie Sanders and Patty Murray) didn’t get back for a vote. In an effort to resuscitate the amendment in the House under Zoe Lofgren and Warren Davidson’s leadership (which would surely pass if Section 215 got bounced back to the Senate), Ron Wyden released a letter to Ric Grenell trying to force some transparency about how the IC hides the scope of the use of Section 215 to get web search and Internet traffic information.

The letter asks Grenell to explain how Section 215 orders served on IP addresses, rather than email addresses, might get counted in transparency provisions.

How would the government apply the public reporting requirements for Section 215 to web browsing and internet searches? In this context, would the target or “unique identifier” be an IP address?

If the target or “unique identifier” is an IP address, would the government differentiate among multiple individuals using the same IP address, such as family members and roommates using the same Wi-Fi network, or could numerous users appear as a single target or “unique identifier”?

If the government were to collect web browsing information about everyone who visited a particular website, would those visitors be considered targets or “unique identifiers” for purposes of the public reporting? Would the public reporting data capture every internet user whose access to that website was collected by the government?

If the government were to collect web browsing and internet searches associated with a single user, would the public reporting requirement capture the scope of the collection? In other words, how would the public reporting requirement distinguish between the government collecting information about a single visit to a website or a single search by one person and a month or a year of a person’s internet use?

Wyden here lays out three use cases for how the IC might (one should assume does) use Section 215 to get web traffic.

  • An order in which an IP address used by multiple people is the target
  • An order collecting all the people who visit a particular website
  • An order collecting all the web browsing and internet searches of a single user

The government is required to report:

(5)the total number of orders issued pursuant to applications made under section 1861(b)(2)(B) of this title and a good faith estimate of—

(A)the number of targets of such orders; and

(B)the number of unique identifiers used to communicate information collected pursuant to such orders;

Taking each of his three scenarios, here’s what I believe the government would report.

An order in which an IP address used by multiple people is the target

In the first scenario, the government is trying to obtain everyone who “uses” a particular IP address. The scenario laid out by Wyden is a WiFi router used by family or friends, but both because the House Report prohibited such things in 2015 and because DOJ IG has raised questions about targeting everyone who uses a Friends and Family plan, I doubt that’s what the IC really does.

Rather, I suspect this is about VPNs and other servers that facilitate operational security. The government could hypothetically obtain four orders a year getting “VPNs,” requiring providers of each of the 10 major VPNs in the country to provide the IP addresses of all the incoming traffic, which would show the IP addresses of everyone who was using their location obscuring traffic.

In such a case, the targeted VPN IP addresses wouldn’t be communicating information at all. The users would get no information back. Therefore, the IC would only report the number of targets of such orders. If the “target” were defined as VPN, the number would be reported as 4 (for each of the 4 orders); if the “target” were defined as the specific VPN providers, the number of targets would be reported as 10.

The IC would entirely hide the number of individual Americans affected.

An order collecting all the people who visit a particular website

This application would seek to learn who visited a particular website. The classic case would be Inspire magazine, the AQAP propaganda. But I could also see how the IC might want to collect people who visit WikiLeaks’ submission page, or any number of sites that would offer information of interest to foreign spies (even DNI’s report on surveillance collection!). In such a use case, the government might ask not for the information provided to the user, but instead the incoming IP addresses of every request to the website. Again, this would not reflect a communication of information (and certainly not to the end user), so would not be reported under 5B.

If the targets were defined as “AQAP propaganda sites,” Inspire and all its affiliates might be reported as just one target (or might even be counted on a more generalized 215 order targeting AQAP or WikiLeaks, and so not as a unique 215 order at all).

The end users here would, again, not be counted if the collection request deliberately asked for something that did not “communicate information,” though I’m not sure precisely what technical language the government would use to accomplish this.

An order collecting all the web browsing and internet searches of a single user

This use case would ask how a 215 order targeting an individualized target (like Carter Page) shows up in transparency reports. If this were an order served on Google targeting a single account identifier for Google (say, Page’s Gmail account), the government might treat that Gmail identifier as the unique identifier, even though the government was getting information on every time this unique identifier obtained information.

Even in the criminal context, prosecutors don’t always target Google histories (for example, they did not with Joshua Schulte, and so got Google searches going back to before he joined the CIA). In the intelligence context, the FBI is given even more leeway to obtain everything, based off the logic that it’s harder to find clandestine activity.

In other words, Wyden has pointed to three use cases, all of which the IC is surely using, which existing transparency reporting requirements would entirely obscure the impact of.


The Public Record Claims that Flynn Had No Permission from Trump to Undermine US Policy in Calling Kislyak

In the last several days, part time Director of National Intelligence and full time Twitter troll Ric Grennell declassified the names of people who unmasked Mike Flynn’s name in call transcripts with Sergey Kislyak. The public record already shows the FBI did so after they discovered his calls explained why Russia had not responded as expected after Barack Obama imposed sanctions on Russia on December 28, 2016.

The press has, predictably, chased this issue as a matter of partisan game, demonstrating utter disinterest in how obviously they are being chumps in a political ploy.

Release of the list, which would be an unprecedented move, is likely to resurrect a partisan debate over an episode that had roiled the early days of Mr. Trump’s presidency and has taken on renewed urgency after the Justice Department moved to drop a criminal case against Mr. Flynn last week.

It takes enormous leaps of willful ignorance of the facts to treat this as the partisan spat that Trump wants it to be.

That’s true, for two reasons:

  • The public record shows that the Obama Administration did need to know Flynn’s identity to understand the Kislyak intercept and accorded Flynn deference as a result until such time that it appeared Flynn had acted without official sanction
  • The public record, over three years after the call, remains consistent with Mike Flynn making that call to Sergey Kislyak without permission from Trump himself, meaning the public record is consistent with Flynn acting on his own

Under FISA, the Executive Branch may not disseminate an American’s identity obtained from a FISA intercept, “unless such person’s identity is necessary to understand foreign intelligence information or assess its importance.” But if the Executive Branch needs that person’s identity to understand foreign intelligence, they can unmask the identity.

It matters that this call was made by the incoming National Security Advisor. At first, Flynn’s identity made the call look less suspicious. But within days of its discovery, Flynn’s own actions had created reason for far greater concern that the incoming NSA had made this call.

At first, the Flynn unmasking led to deference to him, albeit with concerns about sharing intelligence with (just) him

When Russia did not respond to the December 2016 sanctions, per Jim Comey’s testimony, the Intelligence Community tasked its members to learn why not.

And so the last couple days of December and the first couple days of January, all the Intelligence Community was trying to figure out, so what is going on here? Why is this — why have the Russians reacted the way they did, which confused us? And so we were all tasked to find out, do you have anything [redacted] that might reflect on this? That turned up these calls at the end of December, beginning of January.

Some days later, the FBI provided an answer: because someone had called up Russia and asked them not to escalate, and days later Russia had called up and told the same person that Vladimir Putin had not responded because of his call. Imagine the possible implications of this call without the identity. The call could reflect an amazingly powerful private individual who for some reason had the ability to make Vladimir Putin to take action against his stated interests. Or it could reflect something fairly routine. You had to know who made the call to figure out which it was.

In his testimony, Comey made it clear that, 1) they did unmask Flynn’s name but 2) the FBI issued no finalized report on this, meaning they were protecting the discovery from wider dissemination.

We did not disseminate this [redacted] in any finished intelligence, although our people judged was appropriate, for reasons that I hope are obvious, to have Mr. Flynn’s name unmasked. We kept this very close hold, and it was shared just as I described.

Sally Yates’ 302 describes how Obama responded. He stated specifically that he wanted no more follow-up information, but he did want advice on whether his White House should treat Flynn differently as a result.

After the briefing, Obama dismissed the group but asked Yates and Comey to stay behind. Obama started by saying he had “learned of the information about Flynn” and his conversation with Kislyak about sanctions. Obama specified he did not want any additional information on the matter, but was seeking information on whether the White House should be treating Flynn any differently, given the information.

[snip]

Yates recalled Comey mentioning the Logan Act, but can’t recall if he specified there was an “investigation.” Comey did not talk about prosecution in the meeting. It was not clear to Yates from where the President first received the information. Yates did not recall Comey’s response to the President’s question about how to treat Flynn.

A letter Congress sent to Susan Rice quoting from her own letter to the file makes it clear that Obama explicitly stated he wanted no involvement in any law enforcement matters. He just wanted to know whether the Administration should limit how they would share classified information with Flynn during the transition.

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 Corney and Deputy Attorney General Sally Yates in the Oval Office. Vice President Biden and I were also present.

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.

[redacted]

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.

As to DOJ, at first Mary McCord treated this just as Republicans would want: by assuming this was just the normal pre-inauguration outreach one would expect from an incoming National Security Advisor.

It seemed logical to her that there may be some communications between an incoming administration and their foreign partners.

There are several takeaways from this record. We don’t know exactly what the transcripts say (and neither did some of the people involved), but this reaction is entirely inconsistent with Flynn saying anything to Kislyak to indicate he was operating on Trump’s orders. If he had, then Obama would not have had a concern about sharing information with Flynn and only Flynn. If it was clear Trump was involved, Obama’s concerns would be mitigated because Trump constitutionally would be entitled to this anyway. There’s no evidence Flynn made it clear he had Trump’s sanction to make these calls.

These actions also make it clear that, while the FBI responded to this as they would any counterintelligence investigation, both Obama and Rice were very careful about respecting the transition of power. The redacted passage in Rice’s letter is consistent with Obama adopting some caution, but deferring any more drastic measures unless, “anything changes in the next few weeks.”

From January 15, 2017 to the present, the public record has always been consistent with Flynn deciding to make the call on his own — and possibly acting rogue

Ten days after the Obama Administration adopted a cautious response to learning of Flynn’s calls, something did change.

The Vice President went on Face the Nation and told a journalist that he had asked Mike Flynn and Flynn denied speaking about sanctions at all.

MIKE PENCE: I talked to General Flynn about that conversation and actually was initiated on Christmas Day he had sent a text to the Russian ambassador to express not only Christmas wishes but sympathy for the loss of life in the airplane crash that took place. It was strictly coincidental that they had a conversation. They did not discuss anything having to do with the United States’ decision to expel diplomats or impose censure against Russia.

JOHN DICKERSON: So did they ever have a conversation about sanctions ever on those days or any other day?

MIKE PENCE: They did not have a discussion contemporaneous with U.S. actions on–

JOHN DICKERSON: But what about after–

MIKE PENCE: –my conversation with General Flynn. Well, look. General Flynn has been in touch with diplomatic leaders, security leaders in some 30 countries. That’s exactly what the incoming national security advisor–

JOHN DICKERSON: Absolutely.

MIKE PENCE: –should do. But what I can confirm, having spoken to him about it, is that those conversations that happened to occur around the time that the United States took action to expel diplomats had nothing whatsoever to do with those sanctions.

From that moment to this day, the record is consistent with Mike Flynn working without the knowledge of or prior sanction from Trump and Pence. I believe Flynn did have prior sanction from Trump, but I believe that only because I think Trump and Flynn have hidden that detail for years. But because Flynn and KT McFarland, at least, told Mueller’s prosecutors that they had no memory of consulting with Trump about what to say to Kislyak ahead of time and Trump has categorically denied it, the public record says that Flynn made the decision both to undermine the official policy of the United States and decide what policy to pursue after consulting with a few Transition aides, but not Trump himself, which was a key conclusion of this part of the Mueller Report.

Although transition officials at Mara-Lago had some concern about possible Russian reactions to the sanctions, the investigation did not identify evidence that the President-Elect asked Flynn to make any request to Kislyak.

To be clear, starting in November 2017 — ten months after Obama’s people got Flynn’s name unmasked — Flynn and KT McFarland for the first time started admitting that Flynn had consulted with Trump’s staff at Mar-a-Lago before calling Kislyak, after denying it for that time. (This passage is largely sourced to a November 17, 2017 Flynn interview and a December 22, 2017 McFarland interview.)

Flynn recalled that he chose not to communicate with Kislyak about the sanctions until he had heard from the team at Mar-a-Lago.1241 He first spoke with Michael Ledeen, 1242 a Transition Team member who advised on foreign policy and national security matters, for 20 minutes. 1243 Flynn then spoke with McFarland for almost 20 minutes to discuss what, if anything, to communicate to Kislyak about the sanctions. 1244 On that call, McFarland and Flynn discussed the sanctions, including their potential impact on the incoming Trump Administration’s foreign policy goals. 1245 McFarland and Flynn also discussed that Transition Team members in Mar-a-Lago did not want Russia to escalate the situation. 1246 They both understood that Flynn would relay a message to Kislyak in hopes of making sure the situation would not get out of hand.1247

Immediately after speaking with McFarland, Flynn called and spoke with Kislyak. 1248 Flynn discussed multiple topics with Kislyak, including the sanctions, scheduling a video teleconference between President-Elect Trump and Putin, an upcoming terrorism conference, and Russia’s views about the Middle East. 1249 With respect to the sanctions, Flynn requested that Russia not escalate the situation, not get into a “tit for tat,” and only respond to the sanctions in a reciprocal manner.1250

Multiple Transition Team members were aware that Flynn was speaking with Kislyak that day. In addition to her conversations with Bannon and Reince Priebus, at 4:43 p.m., McFarland sent an email to Transition Team members about the sanctions, informing the group that “Gen [F]lynn is talking to russian ambassador this evening.” 1251 Less than an hour later, McFarland briefed President-Elect Trump. Bannon, Priebus, Sean Spicer, and other Transition Team members were present. 1252 During the briefing, President-Elect Trump asked McFarland if the Russians did “it,” meaning the intrusions intended to influence the presidential election. 1253 McFarland said yes, and President-Elect Trump expressed doubt that it was the Russians.1254 McFarland also discussed potential Russian responses to the sanctions, and said Russia’s response would be an indicator of what the Russians wanted going forward. 1255 President-Elect Trump opined that the sanctions provided him with leverage to use with the Russians. 1256 McFarland recalled that at the end of the meeting, someone may have mentioned to President-Elect Trump that Flynn was speaking to the Russian ambassador that evening. 1257

So Flynn had the input of Michael Ledeen, McFarland, and through McFarland, the input of Transition Team members at Mar-a-Lago.

But — as I lay out in this post — the timeline laid out in Mueller’s deliberately unclear account shows no consultation between Flynn and Trump, or even McFarland and Trump, before the call. Someone may have mentioned that Flynn was making the call in a briefing Trump attended, but there’s no evidence Trump provided input on what he should say. Moreover, by the time of that briefing, Flynn appears to have already made the first call. McFarland reported to Flynn on the briefing in the same call where he told her what had transpired on his call.

1:53PM: McFarland and other Transition Team members and advisors (including Flynn, via email) discuss sanctions.

2:07PM: [Transition Team Member] Flaherty, an aide to McFarland, texts Flynn a link to a NYT article about the sanctions.

2:29PM: McFarland calls Flynn, but they don’t talk.

Shortly after 2:29PM: McFarland and Bannon discuss sanctions; according to McFarland’s clean-up interview, she may have told Bannon that Flynn would speak to Kislyak that night.

3:14PM: Flynn texts Flaherty and asks “time for a call??,” meaning McFarland. Flaherty responds that McFarland was on the phone with Tom Bossert. Flynn informs Flaherty in writing that he had a call with Kislyak coming up, using the language, “tit for tat,” that McFarland used on emails with others and that Flynn himself would use with Kislyak later that day.

Tit for tat w Russia not good. Russian AMBO reaching out to me today.

Sometime in here but the Report doesn’t tell us precisely when: Flynn talks to Michael Ledeen, KT McFarland, and then Kislyak. [my emphasis]

4:43PM: McFarland emails other transition team members saying that,  “Gen [F]lynn is talking to russian ambassador this evening.”

Before 5:45PM: McFarland briefed President-Elect Trump, Steve Bannon, Reince Priebus, Sean Spicer, and others on the sanctions. McFarland remembers that someone at the briefing may have mentioned the upcoming Kislyak call.

After the briefing: McFarland and Flynn speak by phone. Flynn tells McFarland, “that the Russian response to the sanctions was not going to be escalatory because they wanted a good relationship with the incoming Administration,” and McFarland tells Flynn about the briefing with Trump.

Moreover, the record shows that, after Flynn reported back to McFarland after Kislyak told him Russia would not respond because of the call Flynn made, he sent an email specifically designed to cover up that Kislyak had said so.

Shortly thereafter, Flynn sent a text message to McFarland summarizing his call with Kislyak from the day before, which she emailed to Kushner, Bannon, Priebus, and other Transition Team members. 1265 The text message and email did not include sanctions as one of the topics discussed with Kislyak. 1266 Flynn told the Office that he did not document his discussion of sanctions because it could be perceived as getting in the way of the Obama Administration’s foreign policy.126

Not only did Trump say, shortly after he fired Flynn, that he did not direct Flynn to discuss sanctions with Kislyak (though he said he would have directed him to do so if he wasn’t already doing it), but according to the public record, Flynn claims to have first told Trump he may have spoken about sanctions on February 6.

The week of February 6, Flynn had a one-on-one conversation with the President in the Oval Office about the negative media coverage of his contacts with Kislyak. 193 Flynn recalled that the President was upset and asked him for information on the conversations. 194 Flynn listed the specific dates on which he remembered speaking with Kislyak, but the President corrected one of the dates he listed. 195 The President asked Flynn what he and Kislyak discussed and Flynn responded that he might have talked about sanctions.196

The record also shows that, after Trump asked Reince Priebus to get KT McFarland to write a statement asserting that Trump had not spoken with Flynn before the call, she declined to do so because she didn’t know whether it had or not and John Eisenberg advised she not do so because it would make her Ambassadorial appointment look like a quid pro quo (which recently released 302s makes it look like).

Priebus called McFarland into his office to convey the President’s request that she memorialize in writing that the President did not direct Flynn to talk to Kislyak.255 McFarland told Priebus she did not know whether the President had directed Flynn to talk to Kislyak about sanctions, and she declined to say yes or no to the request.256 P

255 KTMF _ 00000048 (McFarland 2/26/ 17 Memorandum for the Record); McFarland 12/22/ 17 302, at 17.

256 KTMF _00000047 (McFarland 2/26/ 17 Memorandum_ for the Record) (“I said I did not know whether he did or didn’t, but was in Maralago the week between Christmas and New Year’s (while Flynn was on vacation in Carribean) and I was not aware of any Flynn-Trump, or Trump-Russian phone calls”); McFarland 12/22/ 17 302, at 17.

In short, even today, there is no evidence that Flynn had any permission from Trump to make this call. For over three years, Flynn and Trump have insisted he did not, which makes the significance of the intercept very different.

The public record, over three years later, is that Mike Flynn called up the country that just attacked us and — with no permission from Trump to do so — undermined the foreign policy of the United States.

So two things happened with this intercept.

At first, the fact that it was made by the incoming National Security Advisor led top DOJ officials to treat it with deferral. That is, they decided the meaning and the context was that of an incoming NSA calling foreign countries, and therefore fairly routine.

But ten days later, the transcript would look like something entirely different, the incoming NSA — who had received direct payments from Russia in the years leading up to this action — acting on his own with the Russian Ambassador. The President specifically denied having any role in the calls and fired Flynn (though said he didn’t mind the call). He went to some lengths to create a record to substantiate that he had not spoken to Flynn about it.

It would take ten months before prosecutors would have testimony (they had call records reflecting calls by March and probably had emails by August 2017) reflecting any consultation on Flynn’s part with any of his colleagues. Until they got that testimony, Flynn would have looked like had gone rogue, and decided to not only undermine Obama’s policy, but to set Trump’s policy, all on his own.

Either of those situations would justify unmasking someone’s identity. In either one of those situations, the FBI and other national security officials would have an obligation to track who was undermining the punishment for an attack by a hostile government, whether they deferred to it (in the case for the period when it seemed routine outreach) or investigated it (once it became clear the official was lying about it).

To suggest or even parrot, as Trump’s lackeys are, that this was a partisan decision suggests the United States should ignore when top national security officials appear to go rogue, undermining the current Administration without any evidence of sanction from the incoming one.


The Nuances of the Carter Page Application

I’ve now finished a close read of the last Carter Page FISA application. I think the contents bring a lot more nuance to the discussion of it over the last three years. This post will try to lay out some of that nuance.

Hot and cold running Carter Page descriptions

In most ways, the declassified application tracks the DOJ IG Report and shows how the problems with the application in practice. One newly declassified example conservatives have pointed to shows that FBI Agents believed that Page’s media appearances in spring 2017 were just an attempt to get a book contract.

The FBI also notes that Page continues to be active in meeting with media outlets to promote his theories of how U.S. foreign policy should be adjusted with regard to Russia and also to refute claims of his involvement with Russian Government efforts to influence the 2016 U.S. Presidential election. [redacted–sensitive information] The believes this approach is important because, from the Russian Government’s point-of-view, it continues to keep the controversy of the election in the front of the American and world media, which has the effect of undermining the integrity of the U.S. electoral process and weakening the effectiveness of the current U.S. Administration. The FBI believes Page also may be seeking media attention in order to maintain momentum for potential book contracts. (57)

Even if Page were doing media to get a book contract, short of being charged and put under a court authorized gag, there’s nothing that prevents him from telling his story. He’s perfectly entitled to overtly criticize US foreign policy. And as so often happens when intelligence analysis sees any denials as a formal Denial and Deception strategy, the FBI allowed no consideration to the possibility that some of his denials were true.

Julian Sanchez argued when the IG Report came out that FBI’s biases were probably confirmation bias, not anti-Trump bias, and this is one of the many examples that supports that.

One specific Page denial that turned out to be true — that he was not involved in the Ukraine platform issue — is even more infuriating reading in declassified form. As the IG Report noted, by the time FBI filed this last application, there were several piece of evidence that JD Gordan was responsible for preventing any platform change.

An FBI March 20, 2017 Intelligence Memorandum titled “Overview of Trump Campaign Advisor Jeff D. [J.D.] Gordon” again attributed the change in the Republican Platform Committee’s Ukraine provision to Gordon and an unnamed campaign staffer. The updated memorandum did not include any reference to Carter Page working with Gordon or communicating with the Republican Platform Committee. On May 5, 2017, the Counterintelligence Division updated this Intelligence Memorandum to include open source reporting on the intervention of Trump campaign members during the Republican platform discussions at the Convention to include Gordon’s public comments on his role. This memorandum still made no reference to involvement by Carter Page with the Republican Platform Committee or with the provision on Ukraine.

On June 7, 2017, the FBI interviewed a Republican Platform Committee member. This interview occurred three weeks before Renewal Application No. 3 was filed. According to the FBI FD-302 documenting the interview, this individual told the FBI that J.D. Gordon was the Trump campaign official that flagged the Ukrainian amendment, and that another person (not Carter Page) was the second campaign staffer present at the July 11 meeting of the National Security and Defense Platform Subcommittee meeting when the issue was tabled.

Although the FBI did not develop any information that Carter Page was involved in the Republican Platform Committee’s change regarding assistance to Ukraine, and the FBI developed evidence that Gordon and another campaign official were responsible for the change, the FBI did not alter its assessment of Page’s involvement in the FISA applications. Case Agent 6 told us that when Carter Page denied any involvement with the Republican Platform Committee’s provision on Ukraine, Case Agent 6 “did not take that statement at face value.” He told us that at the time of the renewals, he did not believe Carter Page’s denial and it was the team’s “belief” that Carter Page had been involved with the platform change.

But the application’s treatment of this issue doesn’t just leave out that information. The utterly illogical explanation of why the FBI believed he had a role in the platform — which was quoted in the IG Report — appears worse in context.

During these March 2017 interviews, the FBI also questioned Page about the above-referenced reports from August 2016 that Candidate #1’s campaign worked to make sure Political Party #1’s platform would not call for giving weapons to Ukraine to fight Russian and rebel forces [this matter is discussed on pgs. 25-26]. According to Page, he had no part in the campaign’s decision. Page stated that an identified individual (who previously served as manager of Candidate #1’s campaign) more likely than not recommended the “pro-Russian” changes. As the FBI believes that Page also holds pro-Russian views and appears to still have been a member of Candidate #1’s campaign in August 2016, the FBI assesses that Page may have been downplaying his role in advocating for the change to Political Party #1’s platform. (55)

(Here’s the March 16, 2017 interview.)

It’s not just that the FBI had about five other pieces of evidence that suggested Page was not involved, but for the FBI, it was enough that he was pro-Russian to suggest Page would have had the influence and bureaucratic chops to make it happen, even in the absence of any evidence to the fact. Add in the fact that FBI obtained a pen register on Page as part of this application (as reflected by notations in the margin of redacted material), and the fact that FBI didn’t track what communications he did or did not have at any time is particularly inexcusable.

So there’s abundant evidence in the Page applications that FBI acted like they normally do, seeing in every denial yet more evidence of guilt.

That said, the application does show more to explain why the FBI suspected Page in the first place and continued to have questions about his veracity until the end. For example, here’s the full explanation of how Page came to tell a Russian minister he had been the guy that Viktor Podobnyy was recruiting.

Based on information provided by Page during this [March 2016] interview, the FBI determined that Page’s relationship with Podobnyy was primarily unidirectional, with Page largely providing Podobnyy open source information and contact introductions. During one interview, Page told the FBI that he approached a Russian Minister, who was surrounded by Russian officials/diplomats, and “in the spirit of openness,” Page informed the group that he was “Male-1” in the Buryakov complaint. (16-17)

The FBI took this both as Page’s own confirmation that he was the person in the complaint, which in turn meant that Page knew he was being recruited, and, having learned that, sought ought well-connected Russians to identify himself as such.

As the application laid out later, Page at first denied what he had previously told the FBI about this incident and the Russians who had previously tried to recruit him in his March 2017 interviews. (This occurred in his March 16, 2017 interview.)

In a reference to the Buryakov complaint, Page stated that “nobody knows that I’m Male-1 in this report,” and also added that he never told anyone about this. As discussed above, however, during a March 2016 interview with the FBI regarding his relationship with Podobnyy, Page told the FBI he informed a group of Russian officials that he (Page) was “Male-1” in the Buryakov complaint. Thus, during the March 2017 interview, the FBI specifically asked Page if he told any colleague that he (Page) was “Male-1.” In response, Page stated that there was a conversation with a Russian Government official at the United Nations General Assembly The FBI again asked Page if he had told anyone that he was “Male-1.” Page responded that he “forgot the exact statement.”

Note, Page’s 302 quotes Page as telling the Minister, “I didn’t do anything [redacted],” but it’s unclear (given the b3 redaction) whether that relays what Page said in March 2017 or if the b3 suggests FBI learned this via other means. But the redacted bit remains one of the sketchier parts of this.

The application also describes how Page denied having a business relationship with Aleksandr Bulatov, the first presumed time Russia tried to recruit him, claiming he may have had lunch with him in New York. That Page claimed only to have had lunch with him is all the more absurd since this was the basis for his supposed cooperation with the CIA.

Having seen how Page handled his HPSCI interview and TV interviews, it’s not surprising to see he denied ties he earlier bragged about (which, in any case, undermines any claim he was operating clandestinely). But at best, Page didn’t deny the key thing he could have to avert suspicion: to admit (as George Papadopoulos readily did) that he was overselling his access in Russia to the Trump campaign, in emails the FBI presumably obtained using FISA. Nothing in the IG Report rebuts the claim that Page claimed things in communications that provided basis to believe he was lying (the actual communications are redacted in the applications because all of the FISA collection targeted at Page has been sequestered). So while the FBI did a bunch of inexcusable things with Page, there were things that Page did — and never explained — that explain the FBI’s sustained suspicion of him.

An explanation for some of the GOP’s core beliefs about the dossier and the investigation

The release of the full application also helps to explain how Republicans came to have certain beliefs about the Steele dossier and the Russian investigation. Take this passage:

Source #1 reported the information contained herein to the FBI over the course of several meetings with the FBI from in or about June 2016 through August 2016.

The passage is slightly inaccurate: Mike Gaeta first got reports from Christopher Steele in early July.

Shortly before the Fourth of July 2016, Handling Agent 1 told the OIG that he received a call from Steele requesting an in-person meeting as soon as possible. Handling Agent 1 said he departed his duty station in Europe on July 5 and met with Steele in Steele’s office that day. During their meeting, Steele provided Handling Agent 1 with a copy of Report 80 and explained that he had been hired by Fusion GPS to collect information on the relationship between candidate Trump’s businesses and Russia.

Since initial details of Steele’s reporting have been made public, the frothy right has been unable to understand that information doesn’t necessarily flow instantaneously inside of or between large bureaucracies. And having read this line, I assume Kash Patel would have told Devin Nunes and Trey Gowdy that it was proof that the FBI predicated the investigation on the Steele dossier, because “the FBI” had Steele’s reports a month before opening the investigation into Trump’s aides (though, in fact, that was months after NYFO had opened an investigation into Page). The IG Report, however, explains in detail about how there was a bit of a delay before Steele’s handler sent his reports to the NY Field Office, a delay there for a while, and a further delay after a member of the Crossfire Hurricane team asked NYFO to forward anything they had. As a result, the CH team didn’t receive the first set of Steele reports until September 19, over a month after the investigation started.

On August 25, 2016, according to a Supervisory Special Agent 1 (SSA 1) who was assigned to the Crossfire Hurricane investigation, during a briefing for then Deputy Director Andrew McCabe on the investigation, McCabe asked SSA 1 to contact NYFO about information that potentially could assist the Crossfire Hurricane investigation. 225 SSA 1 said he reached out to counterintelligence agents and analysts in NYFO within approximately 24 hours following the meeting. Instant messages show that on September 1, SSA 1 spoke with a NYFO counterintelligence supervisor, and that the counterintelligence supervisor was attempting to set up a call between SSA 1 and the ADC. On September 2, 2016, Handling Agent 1, who had been waiting for NYFO to inform him where to forward Steele’s reports, sent the following email to the ADC and counterintelligence supervisor: “Do we have a name yet? The stuff is burning a hole.” The ADC responded the same day explaining that SSA 1 had created an electronic sub-file for Handling Agent 1 in the Crossfire Hurricane case and that he

In any other world, this delay — as well as a delay in sharing derogatory information freely offered by Bruce Ohr and Kathleen Kavalec — would be a scandal about not sharing enough information. But instead, this passage about when FBI received the files likely plays a key part of an unshakeable belief that the dossier played a key role in predicating the investigation, which it does not.

Similarly, declassification of the application helps to explain why the frothy right believes that claims George Papadopoulos made to Stefan Halper and another informant in fall 2016 should have undermined the claims FBI made.

To be clear: the frothy right is claiming Papadopoulos’s denials should be treated as credible even after he admitted to a second informant that he told the story he did to Halper about Trump campaign involvement in the leaked emails because he believed if he had said anything else, Halper would have gone to the CIA about it. The FBI, however, believed the claims to be lies in real time, and on that (unlike Carter Page’s denials) the record backs them. There’s even a footnote (on page 11) that explicitly said, “the FBI believes that Papadopoulos provided misleading or incomplete information to the FBI” in his later FBI interviews.

That said, the way Papadopoulos is used in this application is totally upside down. A newly declassified part of the footnote describing Steele’s partisan funding claims that Papadopoulos corroborates Steele’s reporting (the italicized text is newly declassified).

Notwithstanding Source #1’s reason for conducting the research into Candidate #1’s ties to Russia, based on Source #1’s previous reporting history with the FBI, whereby Source #1 provided reliable information to the FBI, the FBI believes Source #1’s herein to be credible. Moreover, because of outside corroborating circumstances discussed herein, such as the reporting from a friendly foreign government that a member of Candidate #1’s team received a suggestion from Russia that Russia could assist with the release of information damaging to Candidate #2 and Russia’s believed hack and subsequent leak of the DNC e-amils, the FBI assesses that Source #1’s reporting contained herein is credible.

This is the reverse of how the IG Report describes things, which explains that the DNC emails came out, Australia decided to alert the US Embassy in London about what Papadopoulos had said three months earlier, which led the FBI to predicate four different investigations (Page, Papadopoulos, Mike Flynn, and Paul Manafort; though remember that NYFO had opened an investigation into Page in April) to see if any of the most obvious Trump campaign members could explain why Russia thought it could help the Trump campaign beat Hillary by releasing emails. The Steele dossier certainly seemed to confirm questions raised by the Australia report (which explains why the FBI was so susceptible, to the extent this was disinformation, to believing it, and why, to the extent it was disinformation, it was incredibly well-crafted). The Steele dossier seemingly confirmed the fears raised by the Australia report, not vice versa. It seems like circular logic to then use Papadopoulos to “corroborate” the Steele dossier. That has, in turn, led the right to think undermining the original Australian report does anything to undermine the investigation itself, even though by the end of October Papadopoulos had sketched out the outlines of what happened with Joseph Mifsud and discussed wanting to cash in on it, and Papadopoulos continued to pursue this Russian relationship, including a secret back channel meeting in London, well into the summer.

Finally, I’m more sympathetic, having read this full application, to complaints about the way FBI uses media accounts — though for an entirely different reason than the frothy right. The original complaint on this point misread the way the FBI used the September 23 Michael Isikoff article reporting on Page, suggesting it was included for the facts about the meeting rather than the denials from Page and the campaign presented in it. The discussion appears in a section on “Page’s denial of cooperation.”  And — as I’ve noted before — the FBI always sourced that story to the Fusion GPS effort, even if they inexcusably believed that Glenn Simpson, and not Steele, was the “well-placed Western intelligence source” cited in the article.

But with further declassification, the way the application relied on two articles about the Ukraine platform to establish what the campaign had actually done (see page 25), rather than refer to the platform itself — or, more importantly, Trump’s own comments about policy, which I’ll return to — appears more problematic (not least because FBI confused the timing of one of those reports with the actual policy change.

Steele and Sergei Millian as uniquely correct about WikiLeaks

There’s another thing about sourcing in this application (which carries over to what I’ve often seen in FBI affidavits). While there are passages discussing the larger investigation into Russia’s 2016 operation that remain redacted (and indeed, there’s a substitution of a redaction with “FBI” on page 7 which probably hides that the IC as a whole continued to investigate Russian hacking), key discussions of that investigation cite to unclassified materials, even in a FISA application that would have under normal circumstances never been shared publicly. For example, the discussion describing attribution of the operation to Russia from pages 6 to 10 largely relies on the October 7 joint statement and Obama’s sanctions statement, not even the January 2017 Intelligence Community Assessment, much less (with the exception of two redacted passages) anything more detailed.

Even ignoring secret government sources, there was a whole lot more attributing Russia and WikiLeaks’s role in the hack-and-leak, especially by June 2017. Yet the Page application doesn’t touch any of that.

And that makes the way the application uses the allegations — attributed to Sergei Millian — to make knowable information about the WikiLeaks dump tie to unsupported information in the dossier all the more problematic. As parroted in the application, this passage interlaces true, public, but not very interesting details with totally unsupported allegations:

According to information provided by Sub-Source [redacted] there was a well-developed conspiracy of co-operation between them [assessed to be individuals involved in Candidate #1’s campaign] and the Russian leadership.” Sub-Source [redacted] reported that the conspiracy was being managed by Candidate #1’s then campaign manager, who was using, among others, foreign policy advisor Carter Page as an intermediary. Sub-Source [redacted] further reported that the Russian regime had been behind the above-described disclosure of DNC e-mail messages to WikiLeaks. Sub-Source [redacted] reported that WikiLeaks was used to create “plausible deniability,” and that the operation had been conducted with the full knowledge and support of Candidate #1’s team, which the FBI assessed to include at least Page. In return, according to Sub-Source [redacted], Candidate #1’s team, which the FBI assessed to include at least Page, agreed to sideline Russian intervention in Ukraine as a campaign issue and to raise U.S.NATO defense commitments in the Baltics and Eastern Europe to deflect attention away from Ukraine.

The DOJ IG report describes how FBI responded to this report by (purportedly) examining the reliability of Steele and his sources closely.

The FISA application stated that, according to this sub-source, Carter Page was an intermediary between Russian leadership and an individual associated with the Trump campaign (Manafort) in a “well-developed conspiracy of co-operation” that led to the disclosure of hacked DNC emails by Wikileaks in exchange for the Trump campaign team’s agreement, which the FBI assessed included at least Carter Page, to sideline Russian intervention in Ukraine as a campaign issue. The application also stated that this same sub-source provided information contained in Steele’s Report 80 that the Kremlin had been feeding information to Trump’s campaign for an extended period of time and that the information had reportedly been “very helpful,” as well as information contained in Report 102 that the DNC email leak had been done, at least in part, to swing supporters from Hillary Clinton to Donald Trump. 300 Because the FBI had no independent corroboration for this information, as witnesses have mentioned, the reliability of Steele and his source network was important to the inclusion of these allegations in the FISA application.

Except there would seem to be another necessary step: to first identify how much of this report cobbled together stuff that was already public — which included Russia’s role, the purpose of using WikiLeaks, Carter Page’s trip to Russia (but not specifics of his meetings there), and — though the application got details of what happened with Ukraine in the platform wrong — the prevention of a change to the platform. On these details, Steele was not only not predictive, he was derivative. Putting aside the problems with the three different levels of unreliable narrators (Steele, his Primary Subsource, and Millian), all of whom had motives to to package this information in a certain way, the fact that these claims clearly included stuff that had been made available weeks earlier should have raised real questions (and always did for me, when I was reading this dossier). Had the FBI separated out what was unique and timely in these allegations, they would have looked significantly different (not least because they would have shown Steele’s network was following public disclosures on key issues).

This is not the kompromat you’re looking for

Which brings me to perhaps the most frustrating part of this application.

As I started arguing at least by September 2017 (and argued again and again and again), to the extent the dossier got filled with disinformation, it would have had the effect of leading Hillary’s campaign to be complacent after learning they had been hacked, because according to the dossier, the Russians planned to leak years old FSB intercepts from when Hillary visited Russia, not contemporaneous emails pertaining to her campaign and recent history. It might even have led the Democrats to dismiss the possibility that the files Guccifer 2.0 was releasing were John Podesta files, delaying any response to the leak that would eventually come in October.

To the extent the dossier was disinformation, it gave the Russian operation cover to regain surprise for their hack-and-leak operation. At least with respect to the Democrats, that largely worked.

And, even though the Australians apparently believed the DNC release may have confirmed Papadopoulos prediction that Russia would dump emails, it appears to have partly worked with the FBI, as well. This passage should never appear in an application that derived from a process leading from the DNC emails to the shared tip about Papadopoulos to a request to wiretap Page:

According to reporting from Sub-Source [redacted] this dossier had been compiled by the RIS over many years, dating back to the 1990s. Further, according to Sub-Source [redacted] his dossier was, by the direct instructions of Russian President Putin, controlled exclusively by Senior Kremlin Spokesman Dmitriy Peskov. Accordingly, the FBI assesses that Divyekin received direction by the Russian Government to disclose the nature and existence of the dossier to Page. In or about June 2016, Sub-Source [redacted] reported that the Kremlin had been feeding information to Candidate #1’s campaign for an extended period of time. Sub-Source [redacted] also reported that the Kremlin had been feeding information to Candidate #1’s campaign for an extended period of time and added that the information had reportedly been “very helpful.” The FBI assesses the information funneled by the Russians to Page was likely part of Russia’s efforts to influence the 2016 U.S. Presidential election.

Note, the FBI contemporaneously — though not after December 9, 2016 — would not have had something Hillary’s team did, the July Steele report on Russia’s claimed lack of hacking success that the FBI should have recognized as utterly wrong. Still, the earliest Steele reports they did have said the kompromat the Russians were offering was stale intercepts. At the very least, one would hope that would raise questions about why someone with purported access to top Kremlin officials didn’t know about the hack-and-leak operation. But the FBI seems to have expected there might be something more.

Trump clearly was not, but should have been, the target earlier than he was

There’s an irony about the complaints I lay out here: they suggest that Trump should have been targeted far earlier than he was.

The Page application rests on the following logic: One of the notably underqualified foreign policy advisors that Trump rolled out to great fanfare in March 2016 told someone, days later, that Russia had offered to help Trump by releasing damaging information on Hillary. The July dump of DNC emails suggested that Papadopoulos’ knowledge foreknowledge may have been real (and given Mifsud’s ties to someone with links to both the IRA and GRU people behind the operation, it probably was). The temporal coincidence of his appointment and that knowledge seemed to tie his selection as an advisor and that knowledge (and in his case, because Joseph Mifsud only showed an interest in Papadopoulos after learning he was a Trump advisor, that turned out to be true). That made the trip to Russia by another of these notably underqualified foreign policy advisors to give a speech he was even more underqualified to give, all the more interesting, especially the way the Trump people very notably reversed GOP hawkishness on Ukraine days after Page’s return.

In other words, the FBI had evidence — some of it now understood to be likely disinformation, and was trying to understand, how, after Trump shifted his focus to foreign policy, he shifted to a more pro-Russian stance in seeming conjunction with Russia delivering on their promise (shared with foreign policy advisor Papadopoulos) to help Trump by releasing the DNC emails.

It turns out the change in policy was real. And JD Gordan attributed his intervention on the RNC platform, in contravention of direction from policy director John Mashburn, to Trump’s own views.

Gordon reviewed the proposed platform changes, including Denman’s.796 Gordon stated that he flagged this amendment because of Trump’s stated position on Ukraine, which Gordon personally heard the candidate say at the March 31 foreign policy meeting-namely, that the Europeans should take primary responsibility for any assistance to Ukraine, that there should be improved U.S.-Russia relations, and that he did not want to start World War III over that region.797 Gordon told the Office that Trump’s statements on the campaign trail following the March meeting underscored those positions to the point where Gordon felt obliged to object to the proposed platform change and seek its dilution.798

[snip]

According to Denman, she spoke with Gordon and Matt Miller, and they told her that they had to clear the language and that Gordon was “talking to New York.”803 Denman told others that she was asked by the two Trump Campaign staffers to strike “lethal defense weapons” from the proposal but that she refused. 804 Demnan recalled Gordon saying that he was on the phone with candidate Trump, but she was skeptical whether that was true.805 Gordon denied having told Denman that he was on the phone with Trump, although he acknowledged it was possible that he mentioned having previously spoken to the candidate about the subject matter.806 Gordon’s phone records reveal a call to Sessions’s office in Washington that afternoon, but do not include calls directly to a number associated with Trump.807 And according to the President’s written answers to the Office’s questions, he does not recall being involved in the change in language of the platform amendment. 808

Gordon stated that he tried to reach Rick Dearborn, a senior foreign policy advisor, and Mashburn, the Campaign policy director. Gordon stated that he connected with both of them (he could not recall if by phone or in person) and apprised them of the language he took issue with in the proposed amendment. Gordon recalled no objection by either Dearborn or Mashburn and that all three Campaign advisors supported the alternative formulation (“appropriate assistance”).809 Dearborn recalled Gordon warning them about the amendment, but not weighing in because Gordon was more familiar with the Campaign’s foreign policy stance.810 Mashburn stated that Gordon reached him, and he told Gordon that Trump had not taken a stance on the issue and that the Campaign should not intervene.811

[snip]

Sam Clovis, the Campaign’s national co-chair and chief policy advisor, stated he was surprised by the change and did not believe it was in line with Trump’s stance.816 Mashburn stated that when he saw the word “appropriate assistance,” he believed that Gordon had violated Mashburn’s directive not to intervene.817

Sam Clovis would ultimately testify there had been a policy change around the time of the March 31 meeting (though Clovis’ testimony changed wildly over the course of a day and conflicted with what he told Stefan Halper).

Clovis perceived a shift in the Campaign’s approach toward Russia-from one of engaging with Russia through the NATO framework and taking a strong stance on Russian aggression in Ukraine.

But (as noted above), to lay this out in the Page application, the FBI sourced to secondary reporting of the policy change rather than to the platform itself. More notably, in spite of all this happening after late July 2016, there’s no mention of Trump’s press conference on July 27, 2016, where he asked Russia to go find more Hillary emails (and they almost immediately started hacking Hillary’s personal accounts), said he’d consider recognizing Russia’s annexation of Crimea and lifting sanctions, and lied about his ongoing efforts to build a tower in Russia.

Trump directed Mueller to a transcript of the press conference, I’ve put excerpts below. They’re a good reminder that at the same press conference where Trump asked Russia to find Hillary’s emails (and in seeming response to which, GRU officers targeted Hillary’s personal office just five hours later), Trump suggested any efforts to build a Trump Tower in Moscow were years in the past, not ongoing. After the press conference, Michael Cohen asked about that false denial, and Trump “told Cohen that Trump Tower Moscow was not a deal yet and said, ‘Why mention it if it is not a deal?’” He also said they’d consider recognizing Russia’s seizure of Crimea, which makes Konstantin Kilimnik’s travel — to Moscow the next day, then to New York for the August 2 meeting at which he and Paul Manafort discussed carving up Ukraine at the same meeting where they discussed how to win Michigan — all the more striking. Trump’s odd answer to whether his campaign “had any conversations with foreign leaders” to “hit the ground running” may reflect Mike Flynn’s meetings with Sergei Kislyak to do just that.

In other words, rather than citing Trump’s language itself, which in one appearance tied ongoing hacking to an even more dramatic policy change than reflected in the platform, the Carter Page application cited secondary reporting, some of it post-dating this appearance.

Mueller asked Trump directly about two of the things he said in this speech (the Russia if you’re listening comment and the assertion they’d look at recognizing Crimea) and obliquely about a third (his public disavowals of Russian business ties). Trump refused to answer part of one of these questions entirely, and demonstrably lied about another. Publicly, Mueller stated that Trump’s answers were totally inadequate. And these statements happened even as his campaign manager and Konstantin Kilimnik were plotting a clandestine meeting to talk about carving up Ukraine.

The FBI may have done this to stay way-the-fuck away from politics — though, to be clear, Trump’s call on Russia to find more Hillary emails in no way fits the bounds of normal political speech.

But by doing do, they ended up using far inferior sourcing, and distracting themselves from actions more closely implicating Trump directly — actions that remain unresolved.

The Carter Page application certainly backs the conclusions of the DOJ IG Report (though it also shows I was correct that DOJ IG did not know what crimes Page was being investigated for, and as such likely got the First Amendment analysis wrong). But it also shows that the Steele dossier, which fed the FBI’s inexcusable confirmation biases, undermined the FBI investigation into questions that have not yet been fully answered.


The DOJ IG Footnotes Show FBI Doing What They Do and Russia Doing What They Do

Three Republican Senators — Chuck Grassley, Ron Johnson, and Lindsey Graham — have gotten Bill Barr and Ric Grenell to declassify a bunch of things pertaining to Carter Page’s surveillance. While the materials have sent the frothy right into a frenzy again, the materials are actually far more interesting, ambiguous, and at times, damning to Trump’s narrative than the right wing stenographers have made out. This post will look at a series of footnotes to the DOJ IG Report on Carter Page that have been declassified. I’m going to look at allegations about Russian knowledge of Steele’s project in July 2016 and evidence the Michael Cohen claims were disinformation in more detailed in a follow-up; both revelations may hurt Trump’s narrative more than help it, contrary to claims by the frothers.

The purge at ODNI enabled this declassification to occur

Before I get into what the declassified footnotes show, it’s important to understand Grenell’s role in it. In his statement releasing the full set of declassified footnotes, Grassley thanked both Bill Barr and Grenell. In Ron Johnson’s WSJ op-ed feeding the ignorant frenzy about the footnotes, he described how he and Grassley had to keep pressing for their declassification until Grenell made it happen.

My colleague Sen. Chuck Grassley and I began pressing Attorney General William Barr, and eventually acting Director of National Intelligence Richard Grenell, for full declassification of these footnotes. That’s why they’re now public.

In Grenell’s letter providing the footnotes (which very notably did not come as a re-released IG Report, as a prior declassification had), he explained that,

[H]aving consulted the heads of the relevant Intelligence Community elements, I have declassified the enclosed footnotes. I consulted with the Attorney General William Barr, and he has authorized the ODNI to say that he concurs in the declassification insofar as it relates to DOJ equities.

Grenell, of course, is doing the DNI job part time, on top of his full-time job as Ambassador to Germany and his day job of trolling dishonestly on the Internet.  So the declassification might be better understood as the work of Kash Patel, who, while he was a staffer on the House Intelligence Committee, started this declassification project and also served as a gatekeeper to ensure GOP Congressmen did not get accurate information on Russia. While he was on the National Security Council, Patel ensured that Trump did not get accurate information on Ukraine. And the release comes just days after Trump got rid of the last Senate confirmed person at ODNI, something that Adam Schiff has raised concerns about.

Don’t get me wrong: I support these declassifications and with a very few exceptions in these footnotes, don’t think embarrassing stuff got hidden because Grenell was involved (I have a different opinion about how stuff was declassified for Lindsey, even while I’m thrilled to have the precedent for entire FISA applications being released). Some of the most interesting declassifications confirm small details about FISA that have long been known, but have been impossible to prove since DOJ guarded that confirmation so assiduously. But it is crystal clear this declassification happened as a result of dismantling longtime Intelligence Community protections, for better and worse.

The footnotes show FBI and FISA worked like it normally does and so did the Russians

As noted, Grenell didn’t effectuate this declassification by having DOJ IG release an updated version of the report, but instead by releasing all the redacted footnotes, with any newly declassified information unmarked, out of context. Not only does that obscure a few key ones that weren’t further declassified or had already been declassified, but it makes it harder to understand what they mean in context. I’ll treat each of them in turn, italicizing the newly disclosed information, if any.

17: The Brits let Steele cooperate

The OIG also interviewed witnesses who were not current or former Department employees regarding their interactions with the FBI on matters falling with the scope of this review, including Christopher Steele and employees of other U.S. government agencies. 17

17 According to Steele, his cooperation with our investigation was done with the consent of his government.

The fact that Steele emphasized this — and the delayed timing of Steele’s cooperation — suggest that the UK wanted to make clear that they were willing to expose their own intelligence weaknesses to cooperate with something Trump had put significant stock in.

21, 354: DOJ IG considered some of the FISA collection on Page irrelevant to this review

We also received and reviewed more than one million documents that were in the Department’s and FBI’s possession. Among these were electronic communications of Department and FBI employees and documents from the Crossfire Hurricane investigation, including interview reports (FD-302s and Electronic Communications or ECs), contemporaneous notes from agents, analysts, and supervisors involved in case-related meetings, documents describing and analyzing Steele’s reporting and information obtained through FISA coverage on Carter Page, and draft and final versions of materials used to prepare the FISA applications and renewals filed with the FISC. 21

21 We did not review the entirety of FISA collections obtained through FISA surveillance and physical searches targeting Carter Page. We reviewed only those documents collected under FISA authority that were pertinent to our review.

[snip]

Emails and other communications reflect that in the first week of surveillance on Carter Page [redacted], following the granting [redacted] application -· in the October 2016, the Crossfire Hurricane team collected [redacted] 354

354 We did not review the entirety of FISA collections obtained through FISA surveillance and physical searches targeting Carter Page. We reviewed only those documents collected under FISA authority that were pertinent to our review.

These declassifications reveals two phrases — “collections,” and “physical searches” — that have long been treated as classified (though they appear elsewhere in the report, usually by accident). The import of these phrases, especially “physical search,” which actually includes “stored communications,” is why they’ve been hidden in the past.

While the meaning of these footnote was always clear, the import of it (that is, what DOJ IG would considered irrelevant to their review) remains unclear, especially given Michael Horowitz’s public questions about whether the collection was ever useful.

That’s especially true given how FISA surveillance was integrated into later Carter Page applications. The applications Lindsey Graham released makes it clear there was a good deal (indeed, it clearly corroborated concerns about Page’s hope to open a pro-Russian think tank as well as sustained questions about whom Page met with in Russia — though that’s partly because he oversold his ties there to the campaign). The redactions, however, were just hiding FISA vocabulary that had previously been hidden.

61 and 63: How the FBI decides to make someone an informant

The CHSPG recognizes that the decision to open an individual as a CHS will not only forever affect the life of that individual, but that the FBI will also be viewed, fairly or unfairly, in light of the conduct or misconduct of that individual. 59 Accordingly, the CHSPG identifies criteria that handling a ents must consider when assessing the risks associated with the potential CHS. [redacted]60 These risks must be weighed against the benefits associated with use of the potential CHS. 61

Once a CHS has been evaluated and recruited, the CHSPG does not allow for tasking until after the CHS has been approved for opening by an FBI SSA; the required approvals for a specific tasking have been granted; and the CHS has met with the co-handling agent assigned to his or her file, who has the same duties, responsibilities, and file access as the handling agent. 62 The CHSPG requires additional supervisory approval by a Special Agent in Charge (SAC) and review by a Chief Division Counsel CDC to open CHSs that are “sensitive” sources, [redacted]

61 Criteria used by agents and analysts to weigh the risks and benefits are: (1) access [redacted] (2) suitability: [redacted] (3) susceptibility: [redacted] (4) accessibility: [redacted] (5) security; [redacted]

62 CHSPG § 3.1.

63 CHSPG Section 3.5.1.1 Special approval and notification requirements also are necessary for CHS operations in extraterritorial jurisdiction, such as tasking a CHS to contact the subject of an investigation who is located in a foreign country. The requirements and notifications differ, for example, depending on whether the CHS operating is a national security extraterritorial operation or a criminal extraterritorial operation involving a sensitive circumstance. Approval from an FBI Assistant Director is necessary for national security extraterritorial operations, [redacted]

[snip]

Under the CHSPG, which vests SSAs with daily oversight responsibility for CHSs in routine investigations, approval at the SSA level was sufficient. 525 The only relevant exception for the Crossfire Hurricane investigation were counterintelligence CHS extraterritorial operations, which required approval by an FBI Assistant Director, and which we found received approval by Priestap. 526

526 As described in Chapter Two, the special approval and notification requirements for CHS operations in extraterritorial jurisdiction differ, for example, depending on whether the CHS operation is a national security extraterritorial operation or a criminal extraterritorial operation involving a sensitive circumstance. Approval from an FBI Assistant Director is necessary for national security extraterritorial operations, CHSPG Sections 19.2, 19.3.3. Because the Crossfire Hurricane investigation at the outset was a national security investigation, the extraterritorial CHS operations in the case required Assistant Director approval.

These sections reveal details of the FBI’s rules on informants and the special approvals needed in some cases. This information had already been liberated by Terry Albury (see PDF 25 and 31ff) for the earlier sections that remain redacted (which is a testament to the novelty of this declassification, since he’s in prison for having released it). They’re interesting in the case of Carter Page because there was some dispute about using Steele (to say nothing of the disagreement between Steele and the FBI about what their relationship really entailed).

Apparently, Bill Priestap had to give approval for overseas use of informants (and this must extend to Stefan Halper), not because the investigation was sensitive, but because it was a national security investigation.

164, 464, 484: Joseph Mifsud was neither a CIA asset nor had CIA collected on him

During one of these meetings, Papadopoulos reportedly “suggested” to an FFG official that the Trump campaign “received some kind of a suggestion from Russia” that it could assist the campaign by anonymously releasing derogatory information about presidential candidate Hillary Clinton. 164

164 During October 25, 2018 testimony before the House Judiciary and House Committee on Government Reform and Oversight, Papadopoulos stated that the source of the information he shared with the FFG official was a professor from London, Joseph Mifsud. Papadopoulos testified that Mifsud provided him with information about the Russians possessing “dirt” on Hilary Clinton. Papadopoulos raised the possibility during his Congressional testimony that Mifsud might have been “working with the FBI and this was some sort of operation” to entrap Papadopoulos. As discussed in Chapter Ten of this report, the OIG searched the FBI’s database of Confidential Human Sources (CHS), and did not find any records indicating that Mifsud was an FBI CHS, or that Mifsud’s discussions with Papadopoulos were part of any FBI operation. In Chapter Ten, we also note that the FBI requested information on Mifsud from another U.S. government agency, and received a response from the agency indicating that Mifsud had no relationship with the agency and the agency had no derogatory information on Mifsud.

(U) We refer to Joseph Mifsud by name in this report because the Department publicly revealed Mifsud’s identity in The Special Counsel’s Report (public version). According to The Special Counsel’s Report, Papadopoulos first met Mifsud in March 2016, after Papadopoulos had already learned that he would be serving as a foreign policy advisor for the Trump campaign. According to The Special Counsel’s Report, Mifsud only showed interest in Papadopoulos after learning of Papadopoulos’s role in the campaign, and told Papadopoulos about the Russians possessing “dirt” on then candidate Clinton in late April 2016. The Special Counsel found that Papadopoulos lied to the FBI about the timing of his discussions with Mifsud, as well as the nature and extent of his communications with Mifsud. The Special Counsel charged Papadopoulos under Title 18 U.S.C. § 1001 with making false statements. Papadopoulos pled guilty and was sentenced to 14 days in prison. See The Special Counsel’s Report, Vol. 1, at 192‐94

[snip]

The FBI’s Delta files contain no evidence that Mifsud has ever acted as an FBI CHS,463 and none of the witnesses we interviewed or documents we reviewed had any information to support such an allegation. 464

464 The FBI also requested information on Mifsud from another U.S. government agency, and received a response from that agency indicating that Mifsud had no relationship with that agency.

[snip]

In Crossfire Hurricane, the “articulable factual basis” set forth in the opening EC was the FFG information received from an FBI Legal Attache stating that Papadopoulos had suggested during a meeting in May 2016 with officials from a “trusted foreign partner” that the Trump team had received some kind of suggestion from Russia that it could assist by releasing information damaging to candidate Clinton and President Obama. 484

484 Papadopoulos has stated that the source of the information he shared with the FFG was a professor from London, Joseph Mifsud, and has raised the possibility that Mifsud may have been working with the FBI. As described in Chapter Ten of this report, the OIG searched the FBI’s database of Confidential Human Sources (CHSs) and did not find any records indicating that Mifsud was an FBI CHS, or that Mifsud’s discussions with Papadopoulos were part of any FBI operation. The FBI also requested information on Mifsud from another U.S. government agency and received no information indicating that Mifsud had a relationship with that agency or that the agency had any derogatory information concerning Mifsud.

These declassifications debunk something George Papadopoulos has long claimed: that Joseph Mifsud was part of a Deep State plot run by either the FBI or CIA. The FBI asked CIA if they knew anything about him but did not.

166: How the FBI got involved

The Legat told us he was not provided any other information about the meetings between the FFG and Papadopoulos. 166

166 According to Legat, the senior intelligence official stated at the meeting with the USG official that the FFG information “sounds like an FBI matter.”

This explains how, after Australia passed the Papadopoulos tip to State, State called in both the FBI Legal Attaché in London and a senior intelligence officer — probably Gina Haspel, who at the time was London Station Chief — to explain the tip, after which the SIO said FBI should deal with it. Again, it undermines part of the claims of a Deep State coup.

205: Proof Steele should have known FBI considered him an informant, not a consultant

Steele stated that he never recalled being told that he was a CHS and that he never would have accepted such an arrangement, despite the fact that he signed FBI admonishment and payment paperwork indicating that he was an FBI CHS. 205

205 During his time as an FBI CHS, Steele received a total of $95,000 from the FBI. We reviewed the FBI paperwork for those payments, each of which required Steele’s Signed acknowledgement. On each document, of which there were eight, was the caption “CHS Payment” and “CHS’s Payment Name.” A signature page was missing for one of the payments.

This passage was redacted to hide the fact that when the FBI pays informants they don’t do so under their own name. The passage as a whole provides reason why Steele should have known, contrary to his claims, that FBI treated him bureaucratically as an informant. The fact he had a payment name may or may not strengthen that proof.

208: Oligarchs spent much of 2015 trying to meet the FBI through Steele

In our review of Steele’s CHS file, other pertinent documents, and interviews with Handling Agent 1, Ohr, and Steele, we observed that Steele had multiple contacts with representatives of Russian oligarchs with connections to Russian Intelligence Services (RIS) and senior Kremlin officials. 208

208 (U) A 2015 report concerning oligarchs written by the FBI’s Transnational Organized Crime Intelligence Unit (TOCIU) noted that from January through May 2015, 10 Eurasian oligarchs sought meetings with the FBI, and 5 of these had their intermediaries contact Steele. The report noted that Steele’s contact with 5 Russian oligarchs in a short period of time was unusual and recommended that a validation review be completed on Steele because of this activity. The FBI’s Validation Management Unit did not perform such an assessment on Steele until early 2017 after, as described in Chapter Six, the Crossfire Hurricane team requested an assessment in the context of Steele’s election reporting. Handling Agent 1 told us he had seen the TOCIU report and was not concerned about its findings concerning Steele because he was aware of Steele’s outreach efforts to Russian oligarchs. We found that the TOCIU report was not included in Steele’s Delta file. Handling Agent 1 said that he found preparation of the TOCIU report “curious” because he believed that TOCIU was aware of Steele’s outreach efforts and fully supported them.

The fact that Steele was a liaison between the US government and Russian and Ukrainian oligarchs was not secret. Indeed the sections on Bruce Ohr, as well as Ohr’s declassified 302s, make that clear. What’s most interesting about this (prior) redaction is that, while marked as unclassified, the footnote was redacted. While it’s damning that this was not in Steele’s Delta file, that it had been but is not now redacted may say more about investigations into Ohr and Oleg Deripaska and others, than it does about Steele (meaning they’re no longer protecting those investigations).

210 and 211: Deripaska’s contemporaneous knowledge of the Steele dossier

Ohr told the OIG that, based on information that Steele told him about Russian Oligarch 1, such as when Russian Oligarch 1 would be visiting the United States or applying for a visa, and based on Steele at times seeming to be speaking on Russian Oligarch l’s behalf, Ohr said he had the impression that Russian Oligarch 1 was a client of Steele. 210 We asked Steele about whether he had a relationship with Russian Oligarch 1. Steele stated that he did not have a relationship and indicated that he had met Russian Oligarch 1 one time. He explained that he worked for Russian Oligarch l’s attorney on litigation matters that involved Russian Oligarch 1 but that he could not provide “specifics” about them for confidentiality reasons. Steele stated that Russian Oligarch 1 had no influence on the substance of his election reporting and no contact with any of his sources. He also stated that he was not aware of any information indicating that Russian Oligarch 1 knew of his investigation relating to the 2016 U.S. elections. 211

210 As we discuss in Chapter Six, members of the Crossfire Hurricane team were unaware of Steele’s connections to Russian Oligarch 1. [redacted]

211 Sensitive source reporting from June 2017 indicated that a [person affiliated] to Russian Oligarch 1 was [possibly aware] of Steele’s election investigation as of early July 2016.

I’m going to save my longer discussion on this for a separate post, though I already flagged and explained why these two footnotes were important in this post. The short version is, it suggests that to the extent the dossier was disinformation, focusing on Carter Page would have given cover for whatever mission Konstantin Kilimnik was pursuing in July 2016, at which point Deripaska may have already known of the dossier (remember he went to Moscow and met with Viktor Yanukovych before the meeting). Note, too, that the redacted word that has been substituted as “possibly aware” is too short to be that uncertain, so I question the substitution. Also note that footnote 210 is one of a handful footnotes in the entire report that was not further declassified with this review.

214: Steele used to be a spook

Steele told us he had a source network in place with a proven “track record” that could deliver on Fusion GPS’s requirements. Steele added that this source network previously had furnished intelligence on Russian interference in European affairs. 214

214 Steele told us that the source network did not involve sources from his time as a former foreign government employee and was developed entirely in the period after he retired from governmental service

This redaction only served to hide what we all knew, that Steele used to be an MI6 officer. Either the UK no longer considers that sensitive or they really want to give Trump what he wants.

242: The Carter Page investigation wasn’t only about whether he was a spy

Case Agent 2 told the OIG that he informed Steele that the FBI was interested in obtaining information in “3 buckets.” According to Case Agent 2’s written summary of the meeting, as well as the Supervisory Intel Analyst’s notes, these 3 buckets were:

(1) Additional intelligence/reporting on specific, named individuals (such as [Page] or [Flynn]) involved in facilitating the Trump campaign-Russian relationship; 241 (2) Physical evidence of specific individuals involved in facilitating the Trump campaign-Russian relationship (such as emails, photos, ledgers, memorandums etc); [and] (3) Any individuals or sub sources who [Steele] could identify who could serve as cooperating witnesses to assist in identifying persons involved in the Trump campaign-Russian relationship. 242

242 The FBI advised the OIG that the Crossfire Hurricane investigation was a national security investigation, and these activities therefor[e] involved national security extraterritorial CHS operations [redaction]

The only thing interesting about this declassification is how it relates the earlier and later ones, at 63 and 526, on special approval for using an informant overseas. It is equally interesting, however, that the description of why FBI focused on what they did remains substantially classified.

244: The FBI’s knowledge of Sergei Millian’s activities remains classified

For example, Steele identified a sub-source (Person 1) who Steele said was in direct contact with Steele’s primary source {Primary Sub-source). 244

244 Person 1 [redacted]

Like the footnote about Crossfire Hurricane’s knowledge of Oleg Deripaska’s ties with Steele, nothing new has been redacted here. Incidentally, after the first batch of these declassifications had come out and I called Sergei Millian out on making a chronologically impossible claim about what they showed, we had a charming exchange where he told me his interest in what I told the FBI was unique, which I include here solely to break up the monotony of this post!

253: Someone told Steele that Millian was hiding out

According to Handling Agent l’s records, during October 2016, Steele communicated with him four times and provided seven written reports, one of which concerned Carter Page and thus was responsive to the FBI’s request for information concerning Page’s activities. 253

253 (U) These seven reports, with selected highlights, were:

(U) Report 130 (Putin and his colleagues were surprised and disappointed that leaks of Clinton’s emails had not had a greater impact on the campaign; a stream of hacked Clinton material had been injected by the Kremlin into compliant western media outlets like WikiLeaks and the stream would continue until the election);

[redacted] Report 132 (a top level Russian intelligence figure claimed that Putin regrets the operation to interfere in the U.S. elections);

(U) Report 134 (a close associate of Rosneft President Sechin confirmed a secret meeting with Carter Page in July; Sechin was keen to have sanctions on the company lifted and offered up to a 19 percent stake in return);

(U) Report 135 (Trump attorney Michael Cohen was heavily engaged in a cover up and damage control in an attempt to prevent the full details of Trump’s relationship with Russia being exposed; Cohen had met secretly with several Russian Presidential Administration Legal Department officials; immediate issues were efforts to contain further scandals involving Manafort’s commercial and political role in Russia/Ukraine and to limit damage from the exposure of Carter Page’s secret meetings with Russian leadership figures in Moscow the previous month);

(U) Report 136 (Kremlin insider reports that Cohen’s secret meeting/s with Kremlin officials in August 2016 was/were held in Prague);

[redacted] Report 137 (Divyekin was moved from his position in the Presidential Administration to one in the Duma; this move followed Divyekin being exposed in the western media, e.g., the Yahoo News story of September 23, 2016, as a secret interlocutor of Page); and

[redacted] Report 139 (Person 1 was forced to lie low abroad following his/her exposure in the western media and was currently in [redacted]).

There are three things about these disclosures. First, the redacted bullets were classified (they had some redaction other than the Unclassified markings these other paragraphs have). If they were known disinformation, it’s not clear why they’d be classified.

Second, this and other declassified passages suggest that FBI had IDed Divyekin (otherwise it’s unlikely to be classified). The application itself said FBI believed this person to be Igor Nikolayevich Dyevkin, who work(ed) in the Presidential Administration. Unless these original redactions were attempts to hide what FBI didn’t know but should have?

The other detail is that — whether disinformation or no — Steele got a report in October, during the month after FBI started actively investigating Millian, that claimed he had hidden out. He was in New York at the time, though, and remained out and about at least through the inauguration (where he partied with Papadopoulos). So why redact his purported locale?

This spreadsheet lists which files the FBI got when.

265: Grenell liberates basic FISA vocabulary that has long been hidden

The same day, OGC submitted a FISA request form to OI providing, among other things, a description of the factual information to establish probable cause to believe that Carter Page was an agent of a foreign power, the “facilities” to be targeted under the proposed FISA coverage, and the FBI’s investigative plan. 265

“Facilities” are the items to be searched or subjected to electronic surveillance, such as email accounts, telephone numbers, physical premises, or personal property.

The term facilities has long been unredacted in reports on FISA, but without a definition (though the definition was obvious). Its declassification is long overdue. That said, this definition leaves out a lot of things that can be defined as facilities, such as IP addresses and encryption keys.

276: The rush to surveil Page before he met with foreigners

3: 11 p.m., Lisa Page to McCabe: “QI now has a robust explanation re any possible bias of the chs in the package. Don’t know what the holdup is now, other than Stu’s continued concerns. Strong operational need to have in place before Monday if at all possible, which means ct tomorrow. 276

As described below, it appears the desire to have FISA authority in place before Monday, October, 17, was due, at least in part, to the fact that Carter Page was expected to travel to the United Kingdom and South Africa shortly thereafter, and the Crossfire Hurricane team wanted FISA coverage targeting Carter Page in place before that trip.

This sounds shocking and any rush may have led to problems with the application (though the most serious problems were more substantive than that). But it’s not unusual to tie surveillance to upcoming foreign activities. After all, FBI is trying to understand what someone’s relationship to foreign governments is. And Page had some pretty interesting meetings in places besides just Russia.

Moreover only the details of where Page was traveling were classified in the original release — a description of his travel appears at 321ff.

293, 362, 368, 377: Individualized FISA orders automatically qualify the target for 705(b) surveillance

Yates signed the application, and OI submitted the application to the FISC the same day. By her signature, and as stated in the application, Yates found that the application satisfied the criteria and requirements of the FISA statute and approved its filing with the court. 293

293 Her signature also specifically authorized overseas surveillance of Carter Page under Section 705(b) of the FISA and Executive Order 12333 Section 2.5

362 Her signature also specifically authorized overseas surveillance of Carter Page under Section 705(b) of the FISA and Executive Order 12333 Section 2.5.

368 Boente’s signature also specifically authorized overseas surveillance of Carter Page under Section 705(b) of the FISA and Executive Order 12333 Section 2.5.

Rosenstein’s signature also specifically authorized overseas surveillance of Carter Page under Section 705(b) of the FISA and Executive Order 12333 Section 2.5.

A set of four footnotes describing that the Attorney General designee signature on the Page applications are one of the declassifications that has been significantly misunderstood.

Under FISA, for authorizations that are more strict (with an individualized content warrant being the most strict), authorization for less or equivalent surveillance is fairly automatic. People targeted with individual orders here in the US must either be covered, when they travel overseas, by 703 (surveillance overseas with the assistance of a US provider) or 704 (surveillance without assistance overseas, meaning EO 12333 surveillance), but there’s an authorization, 705(b), that allows both domestic collection and 12333 collection overseas. As far as all public records and some non-public ones show, 703 has never been used. 705(b) has instead, meaning that when people travel overseas, the government uses techniques available under EO 12333. There’s good reason to believe that the techniques available under 705(b)/EO 12333 are much niftier, including (as one example) more sophisticated device hacks.

I wrote about the import of 705(b) authority with Carter Page back in April 2017 (in a piece that also suggested he might be the first person ever to get to review his FISA application).

That he was approved for 705(b) is important because he was surveilled overseas. But that is in no way unique to Page. Nor, even if this were “physical search” mean they were surveilling his person. A hack of a phone, conducted from Maryland, would qualify.

296: Steele fluffed his MI6 experience

Steele is a former [redacted] and has been an FBI source since in or about October 2013. [Steele’s] reporting has been corroborated and used in criminal proceedings and the FBI assesses [Steele] to be reliable. 296

296 Although Case Agent 2’s summary of the early October meeting with Steele states that Steele described his former position in a manner consistent with the footnote in the FISA application, other documentation (discussed in Chapter Eight) indicates that Steele’s former employer told the FBI in November 2016, after the first application was filed, that Steele had served in a “moderately senior” position, not a “high‐ranking” position as Steele suggested.

This is a complaint about whether Steele or the FBI agent was responsible for the depiction of how he was described in a footnote in the application. It basically shows that Steele fluffed his experience when meeting with the Crossfire Hurricane team, but this kind of distinction is often semantics.

301 to 303: Hiding more details about Sergei Millian

Before the initial FISA application was filed, FBI documents and witness testimony indicate that the Crossfire Hurricane team had assessed, particularly following the information Steele provided in early October, that Source E was most likely a person previously known to the FBI, referred to hereinafter as Person 1. 301

[snip]

In addition, we learned that Person 1 was at the time the subject of an open FBI counterintelligence investigation. 302 We also were concerned that the FISA application did not disclose to the court the FBI’s belief that this sub-source was, at the time of the application, the subject of such an investigation. We were told that the Department will usually share with the FISC the fact that a source is a subject in an open case. The 01 Attorney told us he did not recall knowing this information at the time of the first application, even though NYFO opened the case after consulting with and notifying Case Agent 1 and SSA 1 prior to October 12, 2016, nine days before the FISA application was filed. Case Agent 1 said that he may have mentioned the case to the OI Attorney “in passing,” but he did not specifically recall doing so. 303

301 As discussed in Chapter Four, Person 1 [redacted]

302 According to a document circulated among Crossfire Hurricane team members and supervisors in early October 2016, Person 1 had historical contact with persons and entities suspected of being linked to RIS. The document described reporting [redacted] that Person 1 “was rumored to be a former KGB/SVR officer.” In addition, in late December 2016, Department Attorney Bruce Ohr told SSA 1 that he had met with Glenn Simpson and that Simpson had assessed that Person 1 was a RIS officer who was central in connecting Trump to Russia.

303 Although an email indicates that the OI Attorney learned in March 2017 that the FBI had an open case on Person 1, the subsequent renewal applications did not include this fact. According to the OI Attorney, and as reflected in Renewal Application Nos. 2 and 3, the FBI expressed uncertainty about whether this sub‐source was Person 1. However, other FBI documents in the same time period reflect that the ongoing assumption by the Crossfire Hurricane team was that this sub‐source was Person 1.

301 is one of a small number of footnotes that did not get declassified any further. 302 still hides the source of intelligence claiming that Millian was rumored to be a former Russian intelligence officer, though that Glenn Simpson believed it was not really secret. Clearly there are things about Millian — or about the reporting on Millian — that remain legitimately secret. For some reason, 303 was included on the declassification list even though it had been entirely declassified (it was clearly at least FOUO) for the initial release of the report.

328: Secret discussions sometimes remain secret

Priestap said he interpreted the comments about Steele’s judgment to mean that “if he latched on to something … he thought that was the most important thing on the face of this earth” and added that this personality trait doesn’t necessarily “jump out as a particularly bad or horrible [one]” because, as a manager, it can be helpful if the “people reporting to [you] think the stuff they’re working on is the most important thing going on” and use their best efforts to pursue it. Information from these meetings was shared with the Crossfire Hurricane team. However, we found that it was not memorialized in Steele’s Delta file and therefore not considered in a validation review conducted by the FBI’s Validation Management Unit (VMU) in early 2017. 328

328 Priestap told the OIG that he recalled that he may have made a commitment to Steele’s former employer not to document the former’s employer’s views on Steele as a condition for obtaining the information.

It’s unclear whether DOJ IG doesn’t believe Bill Priestap’s explanation for not including details that might be considered derogatory about Steele. And he’s right that the judgment — that Steele might follow shiny objects — might not be a bad thing in a well-managed source. In any case, the US now appears uninterested in hiding this detail.

334: For some reason Steele’s primary sub-source claimed to believe he was getting paid to meet with friends

As noted in the first FISA application, Steele relied on a primary sub-source (Primary Sub-source) for information, and this Primary Sub-source used a network of sub-sources to gather the information that was relayed to Steele; Steele himself was not the originating source of any of the factual information in his reporting. 334

334 When interviewed by the FBI, the Primary Sub‐source stated that he/she did not view his/her contacts as a network of sources, but rather as friends with whom he/she has conversations about current events and government relations. The Primary Sub‐source [was] [redacted]

This passage (the “was” was previously unredacted but is now redacted) has generated a lot of uncritical attention, as has the DOJ IG Report’s reporting on the primary sub-source generally. One possibility for who this person is is that he’s someone in a British-based Russian community; that community has successfully been targeted for assassination repeatedly (and if the person were in Russia, would be even more vulnerable). If this person was knowingly part of disinformation, undermining Steele would be part of the disinformation. If the person was not, he might want to minimize what he did to avoid assassination himself. But the claim — made here — that someone getting paid to tell Steele these stories (as he was) didn’t realize his network was being treated as subsources is laughable, and reflects more on the reliability of what the Primary Subsource actually said, because it is solid evidence he’s spinning his relationship with Steele.

339: People who would have ties to Russian intelligence are alleged to have ties to Russian intelligence

The Primary Sub-source told the FBI that one of his/her subsources furnished information for that part of Report 134 through a text message, but said that the sub-source never stated that Sechin had offered a brokerage interest to Page. 339

339 The Primary Sub‐source also told the FBI at these interviews that the subsource who provided the information about the Carter Page‐ Sechin meeting had connections to Russian Intelligence Services (RIS). [redacted]

From the day the dossier came out, it was explicit that some of the claimed sources for it had ties to Russian intelligence, and it would be unsurprising if someone close to Igor Sechin did too. The context to this footnote — that the Primary Subsource’s texts with the subsource didn’t reflect any payment to Page — is actually far more damning for Steele (or his Subsource, who for reasons I laid out above, I think shouldn’t be trusted). But the fact that spooks talk to spooks is actually not all that interesting (and in Steele’s dossier, is explicit).

Note there’s a redaction after this claim, which may be an assessment of whether the claim, in this case, makes any sense.

342: On top of disinformation, FBI believed both Steele and his sources may have been boasting

According to the Supervisory Intel Analyst, the cause for the discrepancies between the election reporting and explanations later provided to the FBI by Steele’s Primary Sub-source and sub-sources about the reporting was difficult to discern and could be attributed to a number of factors. These included miscommunications between Steele and the Primary Sub-source, exaggerations or misrepresentations by Steele about the information he obtained, or misrepresentations by the Primary Sub-source and/or sub-sources when questioned by the FBI about the information they conveyed to Steele or the Primary Sub-source. 342

342 In late January 2017, a member of the Crossfire Hurricane team received information [redacted] that RIS [may have targeted Orbis; redacted] and research all publicly available information about it. [redacted] However, an early June 2017 USIC report indicated that two persons affiliated with RIS were aware of Steele’s election investigation in early 2016. The Supervisory Intel Analyst told us he was aware of these reports, but that he had no information as of June 2017 that Steele’s election reporting source network had been penetrated or compromised.

There are two allegations in this newly declassified information. First, that someone on the Crossfire Hurricane team received information that said Steele’s company may have been targeted. And second, a recurring report about one or multiple June 2017 reports stating that Russian intelligence knew of Steele’s efforts in “early” or “July” 2016.

The first claim, with the continued redaction, is unclear about three things: whether Steele was targeted by human or cyber spying, and who conducted the open source investigation, and what the “it” refers to (it could be Orbis, or the attempted targeting of him). It would be thoroughly unsurprising if Steele had been phished, for example, as virtually all anti-Russian entities were in this period. Phishing might have entailed open source investigation into Orbis (but then, so would human targeting). If phishing or any other hacking were successful, Russia might have learned of his project that way.

I’ll deal with this June 2017 report(s) in more depth later. Here, though, the Supervisory Intel Analyst was making a distinction between knowing of Steele’s project and compromising it that may not be entirely credible. It’s important in this context because the FBI did not consider, before Page’s June 2017 FISA application, whether Steele’s allegations about him were disinformation. (Elsewhere, Priestap describes that he considered but dismissed the possibility because he didn’t understand how that would work.)

347: FBI used 702 collection to test Steele’s sub-sources

FBI documents reflect that another of Steele’s sub-sources who reviewed the election reporting told the FBI in August 2017 that whatever information in the Steele reports that was attributable to him/her had been “exaggerated” and that he/she did not recognize anything as originating specifically from him/her. 347

347 The FBI [received information in early June 2017 which revealed that, among other things, there were [redacted]] personal and business ties between the sub-source and Steele’s Primary Sub-source; contacts between the sub-source and an individual in the Russian Presidential Administration in June/July 2016; [redacted] and the sub‐source voicing strong support for candidate Clinton in the 2016 U.S. elections. The Supervisory Intel Analyst told us that the FBI did not have Section 702 coverage on any other Steele sub‐source.

A number of frothy right wingers have pointed to this as further proof of a grand conspiracy. It could be that. But that’s not necessarily what this shows. It does show that 1) the sub-source was in touch with both the primary Subsource (which you’d want to prove to make sure the contact actually happened, and 2) the sub-source had the kind of contacts — with Russia’s Presidential Administration — to reflect actual access to information. The Hillary support absolutely could mean that the sub-source played up whatever he or she had learned from Russian sources, in which his or her claim that Steele’s reporting was exaggerated might be a way to deflect blame. That said, the better part of potential sources for this dossier would not have been pro-Hillary.

The declassification reveals the interesting detail that one and only one of Steele’s subsources was targeted under Section 702.

350: The FBI identified the Michael Cohen reporting as erroneous from early on

Stuart Evans, NSD’s Deputy Assistant Attorney General who oversaw OI, stated that if OI had been aware of the information about Steele’s connections to Russian Oligarch 1, it would have been evaluated by OI. He told us: “Counterintelligence investigations are complex, and often involve as I said, you know, double dealing, and people playing all sides…. I think that [the connection between Steele and Russian Oligarch 1] would have been yet another thing we would have wanted to dive into. “350

350 In addition to the information in Steele’s Delta file documenting Steele’s frequent contacts with representatives for multiple Russian oligarchs, we identified reporting the Crossfire Hurricane team received from [redacted] indicating the potential for Russian disinformation influencing Steele’s election reporting. A January 12, 2017, report relayed information from [redacted] outlining an inaccuracy in a limited subset of Steele’s reporting about the activities of Michael Cohen. The [redacted] stated that it did not have high confidence in this subset of Steele’s reporting and assessed that the referenced subset was part of a Russian disinformation campaign to denigrate U.S. foreign relations. A second report from the same [redacted] five days later stated that a person named in the limited subset of Steele’s reporting had denied representations in the reporting and the [redacted] assessed that the person’s denials were truthful. A USIC report dated February 27, 2017, contained information about an individual with reported connections to Trump and Russia who claimed that the public reporting about the details of Trump’s sexual activities in Moscow during a trip in 2013 were false, and that they were the product of RIS “infiltrate[ing] a source into the network” of a [redacted] who compiled a dossier of that individual on Trump’s activities. The [redacted] noted that it had no information indicating that the individual had special access to RIS activities or information.

This footnote is meant to elaborate on Evans’ comment about counterintelligence investigations involving a lot of double dealing, context that is particularly important to reading the still redacted footnote. The footnote explains two things. First, that by January 12, 2017 — that is, days after Buzzfeed published the dossier — what is probably another intelligence service (it could even be the Czechs, given the import of Prague) raised concerns about the accuracy of the subset of reporting on Michael Cohen. Given how Steele represented his reports, however, one set of reports would not necessarily reflect on the accuracy of the others (unless they pointed to disinformation from the primary Subsource); that’s how raw intelligence works! The accuracy of the Cohen reporting does not necessarily reflect on the Page FISA application, which is what this report is about.

The record shows that Mueller did not use the Steele dossier in his investigation of Cohen — which seems to have arisen from Suspicious Activity Reports from his banks showing that immediately after the election a bunch of foreigners, including a key Russian, started paying him large sums. And given what else we know about Cohen, confirmation that this is disinformation actually suggests the disinformation was more sophisticated than otherwise understood, in that it provided cover for other things Russia was doing, something I’ll return to.

As to the 2013 dossier about 2013, because of the redactions, it’s unclear whether the FBI obtained a report of someone reporting that he had learned about a Russian dossier on Trump from his 2013 trip, or that someone else was doing a dossier about someone associated with Trump’s trip. Given what we know from Giorgi Rtskhiladze’s testimony to the FBI and Cohen’s discussion of it since, we already knew there was a dossier material from Trump’s 2013 trip, and had been floated continuously since then. Indeed, this report could actually suggest that the CIA learned of the interactions Rtskhiladze (who had ties to Russia and Trump) had before FBI did.

Update: the version of the footnote that appears in the letter to Grassley shows this footnote was transcribed incorrectly in the full version (replacing “a dossier of information” with “a dossier of that individual”), which raises questions about some of the other transcriptions.

That doesn’t actually change my point:

  1. At least according to Michael Cohen’s sworn testimony, the alleged pee tape had been out there since 2013
  2. Giorgi Rtskhiladze is one person — and if Cohen is to be believed, he’s not alone — who knew of the pee tape allegation, and he definitely wanted to claim it was not real (which I’m not contesting), even while having tried to pressure Cohen with it; he also would fit the description of someone who has ties to Russia and Trump but not public ties to Russian intelligence
  3. The redaction of whose dossier this was — which was DOJ IG’s transcription of the report, not a direct quote — is redacted. If this is about Steele (and I’m not wedded to either reading), then for some reason DOJ IG’s redacted description is sensitive (for some reason they didn’t write “source #1”). And the Steele dossier is not just about Trump’s activities. There are multiple possible explanations for why it is sensitive.

I should not have used “2013” above to distinguish this second claim. But my underlying point remains: in context, that redaction suggests something else is going on.

In any case, I’m grateful to my fan who pointed out the difference in the footnote.

365: Classified stuff about Millian that had already been declassified remains declassified

Renewal Application Nos. 2 and 3 did advise the court of a news article claiming that Person 1 was a source for some of the Steele reports and that Person 1 denied having any compromising information regarding the President. 365

365 In Chapter Five, we describe how the FBI did not specifically and explicitly advise or about the FBI’s assessment before the first FISA application that Person 1 was the sub-source who provided the information relied upon in the application from Steele Reports 80, 95, and 102; that Steele had provided derogatory information regarding Person 1; and that the FBI had an open counterintelligence investigation on Person 1. As noted previously, in the next chapter, we describe the information from the Primary Sub-source interview concerning Person 1 and the information that was not shared with or about inconsistences [sic] between the Primary Sub-source and Steele concerning information provided by Person 1.

As with other instances, there was stuff about Sergei Millian that was declassified for the original release, but as a result was included in this declassification review.

372: FISA collections that corroborated Page’s application has been sequestered

In original form, this footnote (modifying an entirely redacted bullet) described what the third application had said. Because the FISC ordered FBI to sequester all collection from the FISA applications targeting Page, this footnote now marks the information as sequestered.

379: FBI violated minimization procedures in retaining information on Carter Page

According to NSD supervisors, as of October 2019, NSD had not received a formal response from the FISC to the Rule 13 Letter. 379

379 On May 10, 2019, NSD sent a second letter to the FISC concerning the Carter Page FISA applications, advising the court of two indicants in which the FBI failed to comply with the SMPs applicable to physical searches conducted pursuant to the final FISA orders issued by the court on June 29, 2017. According to the letter, the FBI took and retained on an FBI‐issued cell phone photographs of certain property taken in connection with a FISA‐authorized physical search on July 13, 2017, which NSD assessed did not comport with the SMPs. In addition in a separate incident on July 29, 2017, the FBI took photographs in connection with another FISA‐authorized physical search and transferred the photographs to an electronic folder on the FBI’s classified secret network. . According to NSD, court staff contacted an NSD official in response to this letter and asked when the information at issue would be removed from non‐compliant FBI systems, and asked about other cases that might be impacted by the same problem. On October 9, 2019, NSD sent another letter to the FISC advising the court that the FBI completed the remedial process for the information associated with the Page FISA applications and information from other cases impacted by the same problem.

This footnote reveals something specific to Page and more generalized as well. First, FBI did “physical searches” on Page on June 29 and July 13, 2017. Remember, “physical searches” can include searches of stored communication, and in this period, FBI had a specific interest in Page’s use of an encrypted messaging app and bank accounts they had not yet reviewed, so these may not be searches of wherever Page lived at the time (though he has said he was out of the country during one or both of them). It appears the minimization violation pertained to the means by which FBI collected the information, basically by taking a picture of evidence. The language makes it clear that this is a more general problem, one suggesting the FBI had misused cell phones in conjunction with FISA searches (but which are probably totally okay under criminal physical searches).

This is the kind of thing, incidentally, where FBI (or NSA) usually gets FISA to adjust the rules to incorporate such practice, while requiring FBI to purge files of collection that violated the rules when collected.

389: Was the Primary Sub-Source actually not truthful and cooperative?

The Supervisory Intel Analyst did not recall anyone asking him whether he thought the Primary Sub-source was “truthful and cooperative,” as noted in the renewal applications. 389

Email communications reflect that in March 2017—after the first FISA application and first renewal were filed and before the last two renewals—the Supervisory Intel Analyst reviewed the first FISA application and the first renewal at OGC’s request to assist with potential redactions before the Department responded to Congressional information requests. The Supervisory Intel Analyst provided comments to the OGC Attorney, including advising him that the Primary Sub‐source was not [redacted] as stated in the FISA applications, and asking whether a correction should be made. The Supervisory Intel Analyst did not provide any other comments relating to the Primary Sub‐source, and he told us that he did not notice anything else potentially inaccurate or incomplete in the applications at that time.

Nothing new was declassified in this declassification review — the redaction continues to hide what had been claimed about Steele’s Primary Sub-Source. That raises questions about what might still be hidden here, including that there may be some question about how helpful the Primary Sub-Source really was.

475 FBI still had stuff from a pro-Trump informant in their files

The Handling Agent placed the materials into the FBI’s files. 475

475 We notified the FBI upon learning during our review that [redacted] material that the CHS had provided to the FBI were still maintained in FBI files.

This footnote was not further declassified with the declassification review. It pertains to a standing FBI informant who (unbeknownst to the Crossfire Hurricane team) was a part of the Trump campaign and had provided some information to his handler. For some reason, it seems the information should have been removed from FBI files, perhaps because it was disinformation. Note the SSA on this other team was avowedly anti-Hillary and was working on the Clinton Foundation investigation.


The Scope of DOJ IG’s FISA Review

A seeming millennium ago, last Tuesday, DOJ’s Inspector General released a Management Advisory Memo describing the interim results of its effort to assess whether problems identified in Carter Page’s FISA application were unique, or reflected a more general problem with FISA. Based on the results from two prongs of DOJ IG’s ongoing investigation, DOJ IG believed they needed to alert FBI right away of their preliminary results in hopes they would inform FBI’s efforts to fix this and to offer two additional recommendations on top of the ones they made in December.

Unsurprisingly, a bunch of mostly right wingers have misrepresented the MAM. I wanted to use this post to explore what the MAM shows about the two prongs of investigation, the significance of the results, and the review of FISA generally. As a bonus track, I’ll talk about what role Intelligence Community Inspector General Michael Atkinson, who was fired on Friday, did not have in the FISA application reviews discussed in the MAM, contrary to what a bunch of wingnuts are claiming to justify his firing.

The universe of FISA

Before getting into what the review showed, some background on the universe of FISA may be helpful.

Both prongs of DOJ IG’s investigation examine probable cause FISA applications from 8 FBI offices submitted over the 5 year period ending last September (the end of Fiscal Year 2019).

The last three years’ transparency reports from the Office of Director of National Intelligence have broken down how many of the probable cause FISA applications were known to target US persons. While there’s been some flux in the number of total probable cause applications, the ones targeting US persons have been going down (perhaps not coincidentally, as scrutiny of the process has increased), from 336 in CY 2016 to 232 in CY 2018.

Using 300 applications targeting US persons as an estimate, that says for the 5-year period DOJ IG is examining, there would have been roughly 1,500 that targeted US persons. The MAM says that the 8 offices included in the review thus far submitted more than 700 FISA applications “relating to U.S. Persons.”

The FBI has 56 field offices. Some states (CA, TX, FL, NY, PA) have multiple FBI offices. Some offices cover multiple states.

In any given year, National Security Division’s Office of Intelligence only does FISA reviews in a fraction of the FBI offices — 25-30, per a recent court filing (FISA 702 reviews covered a smaller number of offices during the early years of the 5-year period, but it’s unclear whether NSD does the reviews at the same time). A James Boasberg opinion on 702 reauthorization from last year confirmed that, “OI understandably devotes more resources to offices that use FISA authorities more frequently.”  That would presumably include DC, NY, and LA (all of which are big enough to be led by an Assistant Director). Cities with large numbers of Chinese-Americans (like SF) or Muslims (like Minneapolis and Detroit) likely do disproportionately more FISA than other large city offices, and I assume offices in TX and FL do a lot as well.

Prong One: Reviewing Woods Files

DOJ IG described that one prong of their review — their own review of Woods Files — involved visiting those 8 field offices “of varying sizes” and reviewing “judgmentally selected sample” of 29 applications to review.

over the past 2 months, we visited 8 FBI field offices of varying sizes and reviewed a judgmentally selected sample of 29 applications relating to U.S. Persons and involving both counterintelligence and counterterrorism investigations. This sample was selected from a dataset provided by the FBI that contained more than 700 applications relating to U.S. Persons submitted by those 8 field offices over a 5-year period.

Between them, those 8 field offices submitted 700 applications in the 5-year period studied, which says that even with some smaller offices included, the field offices still submitted almost half of the US person applications in the period (meaning DOJ IG likely included at least a few of the biggest offices).

This review is ongoing. But thus far, assuming my 1,500 estimate is fair, DOJ IG reviewed around 2% of the applications submitted by the FBI, or 4% of those submitted by these offices. By definition, those 29 files could not have included an application from each office for each year.

For each of these 29 applications, DOJ IG reviewed the Woods File associated with the application to see if there was, as intended, back-up for each of the factual claims in the application; that’s all they’ve done so far. This prong of the review was a strictly paperwork review: DOJ IG did not review whether the claims in the application could be backed up elsewhere, or if there were things in the case file targeting a person that should have been included in the application (which was actually the far bigger problem in the Carter Page applications).

[I]nitial review of these applications has consisted solely of determining whether the contents of the FBI’s Woods File supported statements of fact in the associated FISA application; our review did not seek to determine whether support existed elsewhere for the factual assertion in the FISA application (such as in the case file), or if relevant information had been omitted from the application.

But they didn’t have to keep reviewing to conclude that Woods Files are not functioning like they’re supposed to. Not only was there not a Woods File for 4 of the applications, but the remaining 25 all had problems.

(1) we could not review original Woods Files for 4 of the 29 selected FISA applications because the FBI has not been able to locate them and, in 3 of these instances, did not know if they ever existed; (2) our testing of FISA applications to the associated Woods Files identified apparent errors or inadequately supported facts in all of the 25 applications we reviewed, and interviews to date with available agents or supervisors in field offices generally have confirmed the issues we identified;

[snip]

[F]or 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.

By comparison, DOJ IG found just 8 Woods File errors in the first Carter Page application and 16 in last two, most problematic, renewals (see PDF 460-465). So the applications DOJ IG reviewed were, on average, worse than the Page application with respect to the Woods compliance.

These applications also didn’t all have the required paperwork from an informant’s handling agent — though in some cases, the agent was the same.

About half of the applications we reviewed contained facts attributed to CHSs, and for many of them we found that the Woods File lacked documentation attesting to these two requirements. For some of these applications, the case agent preparing the FISA application was also the handling agent of the CHS referenced in the application, and therefore would have been familiar with the information in CHS files.

It’s actually somewhat notable that just half of this very small sample of applications included information from an informant. And only some of these files were lacking the required paperwork for informants. That suggests, to the degree that the FISA application might hide problems with informants that otherwise might have been found in a criminal warrant affidavit (though even there, FBI has a lot of ways to protect these details), that may not be as big of a problem as defense attorneys have suspected (though that’s an area where I’d expect bigger problems on the CT side than the CI one).

The findings on the third problem identified in the Carter Page applications — that the Woods File did not get a fresh review with each application — are less definitive.

based on the results of our review of two renewal files, as well as our discussions with FBI agents, it appears that the FBI is not consistently re-verifying the original statements of fact within renewal applications. In one instance, we observed that errors or unsupported information in the statements of fact that we identified in the initial application had been carried over to each of the renewal applications. In other instances, we were told by the case agents who prepared the renewal applications that they only verified newly added statements of fact in renewal applications because they had already verified the original statements of fact when submitting the initial application.

This could represent as few as 3 of the 25 files for which there were Woods Files.

In any case, the larger point seems to be the more important one: the FBI has not been using Woods Files like they’re supposed to, making sure that the paperwork to back up any claim made in a FISA application actually reflects the underlying documentation and thereby making sure the claims they make to the FISC are valid.

Presiding FISA Judge James Boasberg issued an order today, requiring the government to figure out whether any of the problems identified in this review were material, with an emphasis on the 4 applications for which there was no Woods File.

Reviewing Accuracy Reviews

As noted, the FBI has not been using Woods Files like they’re intended to be used. But neither is DOJ’s National Security Division.

The other part of DOJ IG’s audit involved reviewing the Accuracy Reviews done by the FBI and NSD as part of the existing FISA oversight process.

There are two kinds of Accuracy Reviews done as part of FISA oversight. First, the FBI requires that lawyers in its field offices review at least one application a year.

FBI requires its Chief Division Counsel (CDC) in each FBI field office to perform each year an accuracy review of at least one FISA application from that field office.

As noted below, these are sent to FBI OGC. NSD’s Office of Intelligence doesn’t get them.

In addition, NSD OI does their own reviews for a subset of offices.

Similarly, NSD’s Office of Intelligence (OI) conducts its own accuracy review each year of at least 1 FISA application originating from each of approximately 25 to 30 different FBI field offices.

Remember there are 56 field offices and roughly 300 US person applications. So in practice, IO could review as few as 8% of the applications in a given year (though it’s probably more than that).

Here’s how DOJ described the OI reviews to FISC in December.

OI’s Oversight Section conducts oversight reviews at approximately 25-30 FBI field offices annually. During those reviews, OI assesses compliance with Court-approved minimization and querying procedures, as well as the Court orders. Pursuant to the 2009 Memorandum, OI also conducts accuracy reviews of a subset of cases as part of these oversight reviews to ensure compliance with the Woods Procedures and to ensure the accuracy of the facts in the applicable FISA application. 5 OI may conduct more than one accuracy review at a particular field office, depending on the number of FISA applications submitted by the office and factors such as whether there are identified cases where errors have previously been reported or where there is potential for use of FISA information in a criminal prosecution. OI has also, as a matter of general practice, conducted accuracy reviews of FISA applications for which the FBI has requested affirmative use of FISA-obtained or -derived information in a proceeding against an aggrieved person. See 50U.S.C. §§ 1806(c), 1825(d).

(U) During these reviews, OI attorneys verify that every factual statement in the categories of review described in footnote 5 is supported by a copy of the most authoritative document that exists or, in enumerated exceptions, by an appropriate alternate document. With regard specifically to human source reporting included in an application, the 2009 Memorandum requires that the accuracy sub-file include the reporting that is referenced in the application and further requires that the FBI must provide the reviewing attorney with redacted documentation from the confidential human source sub-file substantiating all factual assertions regarding the source’s reliability and background. 6

5 (U) OI’s accuracy reviews cover four areas: (1) facts establishing probable cause to believe that the target is a foreign power or an agent of a foreign power; (2) the fact and manner of FBI’s verification that the target uses or is about to use each targeted facility and that property subject to search is or is about to be owned, used, possessed by, or in transit to or from the target; (3) the basis for the asserted U.S. person status of the target(s) and the means of verification; and (4) the factual accuracy of the related criminal matters section, such as types of criminal investigative techniques used (e.g., subpoenas) and dates of pertinent actions in the criminal case. See 2009 Memorandum at 3.

6 (U) If production of redacted documents from the confidential human source sub-file would be unduly burdensome, compromise the identity of the source, or otherwise violate the Attorney General Guidelines for Confidential Human Sources or the FBI’s Confidential Human Source Manual, FBI personnel may request that the attorney use a human source sub-file request form. Upon receipt of that form, the relevant FBI confidential human source coordinator will verify the accuracy of the source’s reliability and background that was used in the application, and transmit the results of that review to the reviewing or attorney.

So in December, DOJ claimed that these reviews served to “ensure compliance with the Woods Procedures and to ensure the accuracy of the facts in the applicable FISA application.” They claimed that “OI attorneys verify that every factual statement in the categories of review described in footnote 5” — pertaining to 1) facts establishing probable cause 2) the target actually uses the targeted facilities 3) the target is a US person and 4) the criminal investigative techniques are accurately described —  are “supported by a copy of the most authoritative document that exists or, in enumerated exceptions, by an appropriate alternate document.” In theory, the easiest way to verify bullet point 1 (the case for probable cause) would be for the OI lawyers to check whether the Woods Files were complete.

Before I get into results, a word about the numbers.

Altogether, DOJ IG reviewed 34 FBI CDC and NSD OI reports and those reports covered 42 US person FISA applications.

Specifically, in addition to interviewing FBI and NSD officials, we reviewed 34 FBI and NSD accuracy review reports covering the period from October 2014 to September 2019—which originated from the 8 field offices we have visited to date and addressed a total of 42 U.S. Person FISA applications, only one of which was also included among the 29 FISA applications that we reviewed.

These numbers are bit confusing. For starters, the base number of accuracy reports, 34, is less than 40 (what it would be if there were a review for all 8 field offices for each of 5 years, which is supposed to be mandated for each FBI office). DOJ IG did not review one application per year per FBI office. I asked DOJ IG why that was; they said only “there may be many reasons why this is the case,” emphasizing multiple times that this audit is in its earliest phases (I’ve got requests for comment in with both NSD and FBI). Some of those many reasons might be:

  • Smaller offices reviewed don’t submit a FISA application every year, so for some offices there was none to review
  • OI doesn’t review most FBI offices every year, so for less frequently reviewed offices, there won’t be a review every year (but there should be an FBI one if the office did any FISA applications)
  • DOJ IG was only interested in US person FISA applications; some of the ones that FBI and OI reviewed would likely not target US persons
  • Only applications for which FISA coverage had ended were reviewed; for the later applications, FISA coverage might be ongoing and therefore excluded from the DOJ IG review
  • DOJ IG may not have finished its review of all these Accuracy Reviews reviews yet, so didn’t include them in the MAM

Additionally, the references to this part of review seems to suggest that the NSD reviews the same FISA application that each FBI field office reviews each year, as well as any problematic ones or ones being used in a prosecution, though that’s something I’m trying to get clarity on. Likewise, I’m trying to figure out whether FBI and OI similarly try to pick a “judgmentally selected sample” to ensure both the counterterrorism and counterintelligence functions are reviewed.

One detail makes this process a really bad measure of Woods File compliance (which is different from whether they measure the accuracy of the application effectively). Before any of these reviews happen, the field offices are told which applications will be reviewed, which gives the case agents a chance to pull together the documentary support for the application.

Thus, prior to the FBI CDC or NSD OI review, field offices are given advance notification of which FISA application(s) will be reviewed and are expected to compile documentary evidence to support the relevant FISA.

If the Woods Procedures were being followed, it should never be the case that the FBI needs to compile documentary evidence before the review; the entire point of it is it ensure the documentary evidence is in the file before any application gets submitted. Once you discover that all the FBI and OI reviews get advance notice, you’re not really reviewing Woods Procedures, it seems to me, you’re reviewing paperwork accuracy.

Nevertheless, even with the advance notice, the 93% of the 42 applications DOJ IG reviewed included problems.

[T]hese oversight mechanisms routinely identified deficiencies in documentation supporting FISA applications similar to those that, as described in more detail below, we have observed during our audit to date. Although reports related to 3 of the 42 FISA applications did not identify any deficiencies, the reports covering the remaining 39 applications identified a total of about 390 issues, including unverified, inaccurate, or inadequately supported facts, as well as typographical errors. At this stage in our audit, we have not yet reviewed these oversight reports in detail.

Keep in mind, OI is reviewing for four things — whether there’s paperwork present to support  that the application shows 1) facts establishing probable cause 2) the target actually uses the targeted facilities 3) the target is a US person (or, for applications targeting under the lower foreign power standard, that the target is not a US person, but that shouldn’t be relevant here) and 4) the criminal investigative techniques used already are accurately described. The second bullet point is actually at least as important as the probable cause, because if the wrong person is wiretapped, then a completely innocent person ends up compromised. That’s the kind of thing where typographical errors (say, transposing 2 digits in a phone number) have had serious ramifications in the past.

The lack of clarity regarding numbers makes one other point unclear. The memo setting up this process envisions NSD’s involvement in assessing whether problems with FISA applications are material. But in practice, the FBI doesn’t consult with them. And in the set of applications that DOJ IG Reviewed (again, it’s unclear whether OI reviewed all the FBI files, along with a select few more, or not), FBI found more problems than OI did, 250 as compared to 140 (for a total of 390 problems).

The 2009 joint FBI-NSD policy memorandum states that “OI determines, in consultation with the FBI, whether a misstatement or omission of fact identified during an accuracy review is material.” The 34 reports that we reviewed indicate that none of the approximately 390 identified issues were deemed to be material. However, we were told by NSD OI personnel that the FBI had not asked NSD OI to weigh in on materiality determinations nor had NSD OI formally received FBI CDC accuracy review results, which accounted for about 250 of the total issues in the reports we reviewed.

[snip]

FBI CDC and NSD OI accuracy review reports had not been used in a comprehensive, strategic fashion by FBI Headquarters to assess the performance of individuals involved in and accountable for FISA applications, to identify trends in results of the reviews, or to contribute to an evaluation of the efficacy of quality assurance mechanisms intended to ensure that FISA applications were “scrupulously accurate.” That is, the accuracy reviews were not being used by the FBI as a tool to help assess the FBI’s compliance with its Woods Procedures.

This is one of the complaints and recommendations in the MAM: it complains that the FBI reviews are basically going into a file somewhere, without a lessons learned process. It recommends that change. It also recommends that OSD get FBI’s reports, so they can integrate them into their own “trends reports” that they do based on their own reviews.

DOJ IG describes its finding that these results aren’t being used in better fashion.

(4) FBI and NSD officials we interviewed indicated to us that there were no efforts by the FBI to use existing FBI and NSD oversight mechanisms to perform comprehensive, strategic assessments of the efficacy of the Woods Procedures or FISA accuracy, to include identifying the need for enhancements to training and improvements in the process, or increased accountability measures.

At least given their description, however, I think they’ve found something else. They’ve confirmed that — contrary to DOJ’s description to FISC that,

OI also conducts accuracy reviews of a subset of cases as part of these oversight reviews to ensure compliance with the Woods Procedures and to ensure the accuracy of the facts in the applicable FISA application.

OI is actually only doing the latter part, measuring the accuracy of the facts in an applicable FISA application. To check the accuracy of the Woods Files, they should with no notice obtain a subset of them, as DOJ IG just did, and see whether the claims in the report are documented in the Woods File, and only after that do their onsite reviews (with notice, to see if there was documentation somewhere that had not been included in the file). That might actually be a better way of identifying where there might be other kinds of problems with the application.

With regards to the lessons learned problem, there seems like an obvious solution to this: Congress mandates that DOJ complete semiannual reviews of 702 practices (which includes reviews of NSA and CIA practices, as well as those of FBI), and they include precisely this kind of trend analysis. Even in spite of their heavy redaction in public form, I’ve even been able to identify problems with 702 and related authorities in the same time frame as NSA was doing so. There’s no reason that semiannual reports couldn’t be expanded (or replicated) to include probable cause targeting. At the very least it’d be a way to force OI and FBI to have this lessons learned discussion. Republican members of Congress have claimed that more oversight should be shifted to Congress (not a very good idea given that no one in Congress seemed to be conducting the close read that I had been), and this is an easy way to play a more active role.

DOJ IG has not reviewed the most important things yet

The MAM is explicit that it has not reviewed the import of the errors it found.

[W]e have not made judgments about whether the errors or concerns we identified were material. Also, we do not speculate as to whether the potential errors would have influenced the decision to file the application or the FISC’s decision to approve the FISA application. In addition, our review was limited to assessing the FBI’s execution of its Woods Procedures, which are not focused on affirming the completeness of the information in FISA applications.

Nor has it reviewed FBI’s own decisions regarding the 290 errors they found in their own reviews to determine if the FBI’s judgment that they were not material was valid. If it compared its results for the one application that FBI and/or OI also reviewed, it doesn’t say so explicitly (which would seem a really important measure about the integrity of the standard reviews).

And while it’s significant that there are so many errors, regardless of the review, it still doesn’t address what the Carter Page case said was the far more important issue: what got left out. Of the 8 to 18 Woods Files errors in the Carter Page investigation, for example, just one got to the core of the problem with the application, that Page was making denials, denials that — before later applications were submitted — the FBI had reason to know were correct (another of the Woods File errors might have raised questions about Steele, but did not go to the heart of the problems with his reporting). The other problems had to do with paperwork, not veracity. And none of the Woods File problems related to CIA’s contact approval of Page for some but not all of his willful sharing of non-public information with known Russian intelligence officers.

DOJ IG says it will conduct further analysis of the problems it has thus far found.

In connection with our ongoing audit, the OIG will conduct further analysis of the deficiencies identified in our work to date and of FBI FISA renewals. In addition, we are expanding the audit’s objective to also include FISA application accuracy efforts performed within NSD. Consistent with the OIG’s usual practices, we will keep the Department and the FBI appropriately apprised of the scope of our audit, and we will prepare a formal report at the conclusion of our work.

But it’s not yet clear that this will include picking a subset of the files already reviewed to do the kind of deep dive that was done with Carter Page.

Further, at this point, DOJ IG seems not to be seeing one of the more obvious conclusions. As explained above, it recommends that the FBI and NSD use their accuracy reviews better to better do lessons learned.

We recommend that the FBI institute a requirement that it, in coordination with NSD, systematically and regularly examine the results of past and future accuracy reviews to identify patterns or trends in identified errors so that the FBI can enhance training to improve agents’ performance in completing the Woods Procedures, or improve policies to help ensure the accuracy of FISA applications.

But it specifically speaks in terms of improving performance with the Woods Procedures.

If the Woods Procedures are meant to be a tool, it would be necessary to conduct no-notice reviews of the files. Otherwise, you’re not reviewing the Woods Procedures. That would need to be a recommendation.

But it seems to be possible if not likely that fixing the problems IDed back before 2000 with a paperwork requirement that doesn’t go to the core of the issue hasn’t worked (and, as described, has never been used as a key measure for the existing OI reviews), then it seems other solutions are necessary — including that criminal defendants get some kind of review. Though even that would be inadequate to the task, given that before DOJ makes the decision to permit FISA materials to be used in a prosecution, they review whether the files would sustain a judge’s review first.

The goal here is not to placate FISC, nor is it to check some boxes as part of the application process. It’s to ensure that absent the threat of review by a defense attorney, the benefits (which already have serious limits) of adversarial review are achieved via other means. And there’s good reason to believe that absent more significant changes in the oversight process, the Woods Procedures are never going to achieve that result.

The Michael Atkinson conspiracy theory

As I was already writing this, it became clear that the frothy right was using this report, released on Tuesday, to provide a non-corrupt excuse for Trump’s firing of Intelligence Community Inspector General Michael Atkinson late on Friday night.

The basis for such a claim is not entirely clear to me. Frothers in my Twitter timeline at first seemed to confuse Atkinson with DOJ’s IG, Michael Horowitz, or believed that the ICIG had a central role in FISA. Then they seized on the fact that, for the two years before he became ICIG, Atkinson was at National Security Division, which both oversees some cases likely to have a FISA component and oversees the submission of applications and then conducts the oversight reviews.

Atkinson’s confirmation materials provide some exactitude for what he did at DOJ when:

September 2002 to March 2006: Trial Attorney for DOJ’s Fraud Section

March 2006 to March 2016: AUSA in DC USAO working on Fraud (including in oversight positions)

March 2016 to June 2016: Acting DAAG, National Asset Protection at NSD

July 2016 to May 2018: Senior Counsel to AAG for NSD

There would be little imaginable reason for a fraud prosecutor, as Atkinson was for the majority of his DOJ career, to use FISA (two of the highest profile cases he worked on were the prosecution of Democratic Congressmen William Jefferson and Jesse Jackson Jr), though he said he worked on some espionage, sanctions, and FARA cases. As Acting DAAG, he worked in a different part of NSD than the unit that handles FISA applications and oversight.

As he described it in his confirmation materials, he would have been a consumer of FISA information, but not the person doing the reviews.

As Senior Counsel to the AAG (serving under John Carlin, Mary McCord, Dana Boente, and John Demers), he might have visibility into review processes on FISAs, though at that level, managers assumed the Woods Procedure worked as required (meaning, Atkinson would not have known of these problems).

In his confirmation materials, however, Atkinson suggested he spent far more time as Senior Counsel overseeing the response to unauthorized disclosures, which likely still included Snowden when he started in 2016, added Shadow Brokers that year, and would have focused closely on Vault 7 in 2017 and 2018.

My experience in helping to coordinate the responses to unauthorized disclosures while serving as the Senior Counsel to the Assistant Attorney General, U.S. Department of Justice, National Security Division (NSD), should assist me in serving effectively as the IC IG. As part of this position, I have assisted in coordinating the Department’s efforts to investigate and prosecute unauthorized disclosures across the IC enterprise. This experience has reinforced for me the important role that fair, impartial, and effective whistleblower protection processes play in maximizing the IC’s effectiveness and minimizing the risks of unauthorized disclosures and harm to our national security. As part of this experience, I have also been a consumer and user of intelligence from multiple intelligence sources, and I have seen first-hand the benefits to our country when there is a unity of effort by the Intelligence Community to address national security needs.

For Vault 7, at least, the investigation into Joshua Schulte — who was always the prime suspect — used criminal process from the very start (though it’s possible that the increased surveillance of Julian Assange involved FISA). And while there are less spectacular cases of unauthorized disclosure that might involve some nexus with a foreign country, raising FISA issues, many of these leaks cases were criminal cases, seemingly not reliant on FISA. Which would mean some of the most sensitive cases Atkinson worked on didn’t involve FISA.

Though the frothy right may think Atkinson had a central role because the title of the person at FBI field offices who must conduct a review is “Chief [Division] Counsel,” and they confused both the agency and the location.

In any case, there’s one more piece missing from this: while I happen to think DOJ IG has not focused closely enough on what NSD should be doing in its oversight role, thus far, DOJ IG has not investigated it. And so there’s actually no allegation of wrong-doing from anyone at NSD in either of these two reports, not even the NSD people who actually work on FISA. On the contrary, DOJ IG simply describes OI doing reviews where they identified problems and wrote them up. Yes, OI likely should have been more involved in determining whether the errors FBI found were material. Given that Boasberg has mandated materiality reviews of the 29 files reviewed by DOJ IG, now would be a good time to implement that practice.

Still, compliance or not with Woods Files remains a distraction from a deeper review of whether these files included all pertinent information. And if FISA is going to remain viable, that’s the examination that needs to happen.


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 any 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.

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Originally Posted @ https://www.emptywheel.net/fisa/