In Op-Ed Calling for Counter-Disinformation Strategy, Will Hurd Engages in His Own Disinformation

I like Will Hurd. I think he’s smart, thoughtful, and (when I met him at an event I did last year in DC) personally very nice. So I was a bit disappointed by this op-ed, arguing that to save democracy, “Americans must begin working together,” just weeks after he voted with all the rest of the House Intelligence Committee Republicans to release the Nunes memo.

After revealing that his CIA clandestine service was in places in Russia’s sphere, Hurd argues that we need a counter-disinformation strategy.

I served in places where Russia has geopolitical interests, and learned that Russia has one simple goal: to erode trust in democratic institutions.

[snip]

To address continued Russian disinformation campaigns, we need to develop a national counter-disinformation strategy. The strategy needs to span the entirety of government and civil society, to enable a coordinated effort to counter the threat that influence operations pose to our democracy. It should implement similar principles to those in the Department of Homeland Security’s Strategy for Countering Violent Extremism, with a focus on truly understanding the threat and developing ways to shut it down.

That much I can agree with him on.

But it has no business appearing in an op-ed that suggests bipartisan criticism of the Nunes Memo stunt amounts to Russia winning — which flips reality on its head.

Unfortunately, over the last year, the United States has demonstrated a lack of resilience to this infection. The current highly charged political environment is making it easier for the Russians to achieve their goal. The hyperbolic debate over the release of the FISA memos by the House Intelligence Committee further helps the Russians achieve their aim. Most recently, Russian social-media efforts used computational propaganda to influence public perceptions of this issue, and we found ourselves once again divided among party lines.

When the public loses trust in the press, the Russians are winning. When the press is hyper-critical of Congress for executing oversight and providing transparency on the actions taken by the leaders of our law-enforcement agencies, the Russians are winning. When Congress and the general public disagree simply along party lines, the Russians are winning. When there is friction between Congress and the executive branch resulting in the further erosion of trust in our democratic institutions, the Russians are winning.

Let’s unpack this passage closely.

First, note how Hurd refers to “the last year” during which the US demonstrated a lack of resilience to Russian disinformation? Hurd is pretending that that lack of resilience doesn’t extend to 2016, when in fact at least the social media companies started to respond to Russian election year events last year.

He then calls the debate over the release of the memo — not propaganda seeded by Republicans claiming the Nunes memo revealed something “worse than Watergate” — hyperbolic.

Hurd then makes the same mistake everyone always makes with the Fucking Gizmo™, the Hamilton Dashboard that tracks right wing propaganda and — because it moves in tandem with official Russian propaganda outlets — deems it Russian, not American.

Then Hurd rebrands Nunes’ stunt as the press being “hyper-critical of Congress for executing oversight and providing transparency on the actions taken by the leaders of our law-enforcement agencies.” As I’ve noted before, it’s particularly rich for people who voted against the Amash-Lofgren amendment to the FISA 702 reauthorization to claim they support transparency, as that amendment would have provided just that. But it’s also pathetic that Hurd would claim either the Nunes or Schiff memos are about transparency or oversight. It’d be awesome if HPSCI decided to hold a hearing on the use of consultants and informants in FISA applications and elsewhere in law enforcement. The Nunes stunt only brought a concern about that to a white politically connect white guy, not the people who really would benefit from actual oversight.

And more importantly, the Nunes memo (which GOPers admitted made a false claim about whether FISC got notice about the political nature of the Steele dossier), especially, was about obfuscation, not transparency.

Will Hurd was on the wrong side of adult behavior when he voted in favor of the Nunes memo. He seems to be trying to spin his vote as something it wasn’t.

He’d do well if, instead, he tried to make up for it.

On the Grassley-Feinstein Dispute

In a podcast with Preet Bharara this week, Sheldon Whitehouse had the following exchange about whether he thought Carter Page should have been surveilled. (after 24:30)

Whitehouse: I’ve got to be a little bit careful because I’m one of the few Senators who have been given access to the underlying material.

Bharara: Meaning the affidavit in support of the FISA application.

Whitehouse And related documents, yes. The package.

Bharara: And you’ve gone to read them?

Whitehouse: I’ve gone to read them.

Bharara: You didn’t send Trey Gowdy?

Whitehouse: [Laughs] I did not send Trey Gowdy. I actually went through them. And, so I’ve got to be careful because some of this is still classified. But the conclusion that I’ve reached is that there was abundant evidence outside of the Steele dossier that would have provoked any responsible FBI with a counterintelligence concern to look at whether Carter Page was an undisclosed foreign agent. And to this day the FBI continues to assert that he was a undisclosed Russian foreign agent.

For the following discussion, then, keep in mind that a very sober former US Attorney has read the case against Carter Page and says that the FBI still — still, after Page is as far as we know no longer under a FISA order — asserts he “was” an undisclosed foreign agent (it’s not clear what that past tense “was” is doing, as it could mean he was a foreign agent until the attention on him got too intense or remains one; also, I believe John Ratcliffe, a Republican on the House Judiciary Committee and also a former US Attorney, has read the application too).

With that background, I’d like to turn to the substance of the dispute between Chuck Grassley and Dianne Feinstein over the dossier, which has played out in the form of a referral of Christopher Steele to FBI for lying. In the wake of the Nunes memo theatrics, Grassley released first a heavily redacted version of the referral he and Lindsey Graham sent the FBI in early January, followed by a less-redacted version this week. The referral, even as a transparent political stunt, is nevertheless more substantive than Devin Nunes’ memo, leading some to take it more seriously.  Which may be why Feinstein released a rebuttal this week.

In case you’re wondering, I’m tracking footnote escalation in these documents. They line up this way:

  • 0: Nunes memo (0 footnotes over 4 pages, or 1 over 6 if you count Don McGahn’s cover letter)
  • 2.6: Grassley referral (26 footnotes over 10 pages)
  • 3.6: Schiff memo (36 footnotes, per HPSCI transcript, over 10 pages)
  • 5.4: Feinstein rebuttal (27 footnotes over 5 pages)

So let me answer a series of questions about the memo as a way of arguing that, while by all means the FBI’s use of consultants might bear more scrutiny, this is still a side-show.

Did Christopher Steele lie?

The Grassely-Graham referral says Steele may have lied, but doesn’t commit to whether classified documents obtained by the Senate Judiciary Committee (presumably including the first two Page applications), a declaration Steele submitted in a British lawsuit, or Steele’s statements to the FBI include lies.

The FBI has since provided the Committee access to classified documents relevant to the FBI’s relationship with Mr. Steele and whether the FBI relied on his dossier work. As explained in greater detail below, when information in those classified documents is evaluated in light of sworn statements by Mr. Steele in British litigation, it appears that either Mr. Steele lied to the FBI or the British court, or that the classified documents reviewed by the Committee contain materially false statements.

On September 3, 2017 — a good three months before the Grassley-Graham referral — I pointed to a number of things in the Steele declaration, specifically pertaining to who got the dossier or heard about it when, that I deemed “improbable.”

That was the genius of the joint (!!) Russian-Republican campaign of lawfare against the dossier. As Steele and BuzzFeed and Fusion tried to avoid liability for false claims against Webzilla and Alfa Bank and their owners, they were backed into corners where they had to admit that Democrats funded the dossier and made claims that might crumble as Congress scrutinized the dossier.

So, yeah, I think it quite possible that Steele told some stretchers.

Did Christopher Steele lie to the FBI?

But that only matters if he lied to the FBI (and not really even there). The UK is not about to extradite one of its former spies because of lies told in the UK — they’re not even going to extradite alleged hacker Lauri Love, because we’re a barbaric country. And I assume the Brits give their spooks even more leeway to fib a little to courts than the US does.

The most critical passage of the referral on this point, which appears to make a claim about whether Steele told the FBI he had shared information with the press before they first used his dossier in a Page application, looks like this.

The footnote in the middle of that redacted passage goes to an unredacted footnote that says,

The FBI has failed to provide the Committee the 1023s documenting all of Mr. Steele’s statements to the FBI, so the Committee is relying on the accuracy of the FBI’s representation to the FISC regarding the statements.

1023s are Confidential Human Source reports.

I say that’s the most important passage because the referral goes on to admit that in subsequent FISA applications the FBI explained that the relationship with Steele had been terminated because of his obvious involvement in the October 31, 2016 David Corn story. Graham and Grassley complain that the FBI didn’t use Steele’s defiance of the FBI request not to share this information with anyone besides the FBI to downgrade his credibility rankings. Apparently FISC was less concerned about that than Graham and Grassley, which may say more about standards for informants in FISA applications than Steele or Carter Page.

The footnote, though, is the biggest tell. That’s because Feinstein’s rebuttal makes it quite clear that after Grassley and Graham made their referral, SJC received documents — which, given what we know has been given to HPSCI, surely include those 1023s — that would alter the claims made in the referral.

The Department of Justice has provided documents regarding its interactions with Mr. Steele to the Judiciary Committee both before and after the criminal referral was made. Despite this, the Majority did not modify the criminal referral and pressed forward with its original claims, which do not take into account the additional information provided after the initial January 4 referral.

Feinstein then goes on to state, several times and underlining almost everything for emphasis, that the referral provides no proof that Steele was ever asked if he had served as the source for Isikoff.

  • Importantly, the criminal referral fails to identify when, if ever, Mr. Steele was asked about and provided a materially false statement about his press contacts.
  • Tellingly, it also fails to explain any circumstances which would have required Mr. Steele to seek the FBI’s permission to speak to the press or to disclose if he had done so.

[snip]

But the criminal referral provides no evidence that Steele was ever asked about the Isikoff article, or if asked that he lied.

In other words, between the redacted claim about what Steele said and Feinstein’s repeated claims that the referral presents no evidence Steele was asked about his prior contacts with the press, the evidence seems to suggest that Steele was probably not asked. And once he was, after the Corn article, he clearly did admit to the FBI he had spoken with the press. So while it appears Steele blew off the FBI’s warnings not to leak to the press, the evidence that he lied to the FBI appears far weaker.

Does it harm the viability of the FISA application?

That should end the analysis, because the ostensible purpose of the referral is a criminal referral, not to make an argument about the FISA process.

But let’s assess the memo’s efforts to discredit the FISA application.

In two places, the referral suggests the dossier played a bigger role in the FISA application than, for example, Whitehouse suggests.

Indeed, the documents we have reviewed show that the FBI took important investigative steps largely based on Mr. Steele’s information–and relying heavily on his credibility.

[snip]

Mr. Steele’s information formed a significant portion of the FBI’s warrant application, and the FISA application relied more heavily on Steele’s credibility than on any independent verification or corroboration for his claims. Thus the basis for the warrant authorizing surveillance on a U.S. citizen rests largely on Mr. Steele’s credibility.

These claims would be more convincing, however, if they acknowledged that FBI had to have obtained valuable foreign intelligence off their Page wiretap over the course of the year they had him wiretapped to get three more applications approved.

Indeed, had Grassley and Graham commented on the addition of new information in each application, their more justifiable complaint that the FBI did not alert FISC to the UK filings in which Steele admitted more contact with the press than (they claim) show up in the applications would be more compelling. If you’re going to bitch about newly learned information not showing up in subsequent applications, then admit that newly acquired information showed up.

Likewise, I’m very sympathetic with the substance of the Grassley-Graham complaint that Steele’s discussions with the press made it more likely that disinformation got inserted into the dossier (see my most recently post on that topic), but I think the Grassley-Graham complaint undermines itself in several ways.

Simply put, the more people who contemporaneously knew that Mr. Steele was compiling his dossier, the more likely it was vulnerable to manipulation. In fact, the British litigation, which involves a post-election dossier memorandum, Mr. Steele admitted that he received and included in it unsolicited–and unverified–allegations. That filing implies that implies that he similar received unsolicited intelligence on these matters prior to the election as well, stating that Mr. Steele “continued to receive unsolicited intelligence on the matters covered by the pre-election memoranda after the US Presidential election.” [my underline]

The passage is followed by an entirely redacted paragraph that likely talks about disinformation.

This is actually an important claim, not just because it raises the possibility that Page might be unfairly surveilled as part of a Russian effort to distract attention from others (though its use in a secret application wouldn’t have sown the discord it has had it not leaked), but also because we can check whether their claims hold up against the Steele declaration. It’s one place we can check the referral to see whether their arguments accurately reflect the underlying evidence.

Importantly, to support a claim the potential for disinformation in the Steele dossier show up in the form of unsolicited information earlier than they otherwise substantiate, they claim a statement in Steele’s earlier declaration pertains to pre-election memos. Here’s what it looks like in that declaration:

That is, Steele didn’t say he was getting unsolicited information prior to the election; this was, in both declarations, a reference to the single December report.

Moreover, while I absolutely agree that the last report is the most likely to be disinformation, the referral is actually not clear whether that December 13 report ever actually got included in a FISA application. There’s no reason it would have been. While the last report mentions Page, the mention is only a referral back to earlier claims that Trump’s camp was trying to clean up after reports of Page’s involvement with the Russians got made public. So the risk that the December memorandum consisted partially or wholly of disinformation is likely utterly irrelevant to the validity of the three later FISA orders targeting Page.

Which is to say that, while I think worries about disinformation are real (particularly given their reference to Rinat Akhmetshin allegedly learning about the dossier during the summer, which I wrote about here), the case Grassley and Graham make on that point both miscites Steele’s own declaration and overstates the impact of their argued case on a Page application.

What about the Michael Isikoff reference?

Perhaps the most interesting detail in the Grassley-Graham referral pertains to their obsession with the applications’ references to the September 23 Michael Isikoff article based off Steele’s early discussions with the press. Grassley-Graham claim there’s no information corroborating the dossier (there’s a redacted Comey quote that likely says something similar). In that context, they point to the reference to Isikoff without explaining what it was doing there.

The application appears to contain no additional information corroborating the dossier allegations against Mr. Page, although it does cite to a news article that appears to be sourced to Mr. Steele’s dossier as well.

Elsewhere, I’ve seen people suggest the reference to Isikoff may have justified the need for secrecy or something, rater than as corroboration. But neither the referral nor Feinstein’s rebuttal explains what the reference is doing.

In this passage, Grassley and Graham not only focus on Isikoff, but they ascribe certain motives to the way FBI referred to it, suggesting the claim that they did not believe Steele was a source for Isikoff was an attempt to “shield Mr. Steele’s credibility.”

There’s absolutely no reason the FBI would have seen the need to shield Steele’s credibility in October. He was credible. More troubling is that the FBI said much the same thing in January.

In the January reapplication, the FBI stated in a footnote that, “it did not believe that Steele gave information to Yahoo News that ‘published the September 23 News Article.”

Let’s do some math.

If I’m doing my math correctly, if the FISA reapplications happened at a regular 90 day interval, they’d look like this.

That’d be consistent with what the Nunes memo said about who signed what, and would fit the firing dates of January 30 for Yates and May 9 for Comey, as well as the start date for Rosenstein of April 26 (Chris Wray started on August 1).

If that’s right, then Isikoff wrote his second article on the Steele dossier, one that made it clear via a link his earlier piece had been based off Steele, before the second application was submitted (though the application would have been finished and submitted in preliminary form a week earlier, meaning FBI would have had to note the Isikoff piece immediately to get it into the application, but the topic of the Isikoff piece — that Steele was an FBI asset — might have attracted their attention).

But that’s probably not right because the Grassley-Graham referral describes a June, not July, reapplication, meaning the application would have been no later than the last week of June. That makes the reauthorization dates look more like this, distributing the extra days roughly proportionately:

That would put the second footnote claiming the FBI had no reason to believe the September Isikoff piece was based on Steele before the time when the second Isikoff piece made it clear.

I’m doing this for a second reason, however. It’s possible (particularly given Whitehouse’s comments) Carter Page remains under surveillance, but for some reason it’s no longer contentious.

That might be the case if the reapplications no longer rely on the dossier.

And I’m interested in that timing because, on September 9, I made what was implicit clear: That pointing to the September Isikoff piece to claim the Steele dossier had been corroborated was self-referential. I’m not positive I was the first, but by that point, the Isikoff thing would have been made explicit.

Does this matter at all to the Mueller inquiry?

Ultimately, though, particularly given the Nunes memo confirmation that the counterintelligence investigation into Trump’s people all stems from the George Papadopoulos tip, and not Page (particularly given the evidence that the FBI was very conservative in their investigation of him) there’s not enough in even the Grassley-Graham referral to raise questions about the Mueller investigation, especially given a point I made out in the Politico last week.

According to a mid-January status report in the case against Manafort and his deputy, Rick Gates, the government has turned over “more than 590,000 items” to his defense team, “including (but not limited to) financial records, records from vendors identified in the indictment, email communications involving the defendants, and corporate records.” He and Gates have received imaged copies of 87 laptops, phones and thumb drives, and copies off 19 search-warrant applications. He has not received, however, a FISA notice, which the government would be required to provide if they planned to use anything acquired using evidence obtained using the reported FISA warrant against Manafort. That’s evidence of just how much of a distraction Manafort’s strategy [of using the Steele dossier to discredit the Mueller investigation] is, of turning the dossier into a surrogate for the far more substantive case against him and others.

And it’s not just Manafort. Not a single thing in the George Papadopoulos and Michael Flynn guilty pleas—for lying to the FBI—stems from any recognizable mention in the dossier, either. Even if the Steele dossier were a poisoned fruit, rather than the kind of routine oppo research that Republicans themselves had pushed to the FBI to support investigations, Mueller has planted an entirely new tree blooming with incriminating details.

Thus the point of my graphic above. The Steele dossier evidence used in the Carter Page FISA application to support an investigation into Cater Page, no matter what else it says about the FISA application process or FBI candor, is just a small corner of the investigation into Trump’s people.

 

In Defense of Suspected Russian Agent Carter Page, Michael Mukasey Just Gave Defense Attorneys a Big Gift

In my post laying out the damage the Nunes memo might have caused, I predicted that defense attorneys would use the release of the memo — and the language Don McGahn used to claim its release served a public interest — to support their arguments that defendants should get to review the underlying application for a FISA warrant.

In the 40 year history of FISA, no defendant who got notice that FISA data was being used against them in prosecution has been able to review the application used against them. Because Nunes released this information so frivolously, because White House Counsel Don McGahn, in his cover memo, suggested this was a time when “public interest in disclosure of [FISA materials] outweighs any need to protect the information, the memo lowers the bar for release of FISA-related information going forward.

I assume Carter Page, if he is charged, will successfully be able to win review of his FISA application (and think that would be entirely appropriate); that may mean he doesn’t get charged or, if he does, Mueller has to bend over backwards to avoid using FISA material.

But I also assume — and hope — that this disclosure ends the 40 year drought on the release of information, which the original drafters of FISA envisioned would be appropriate in certain circumstances. I think this the one salutary benefit of this memo; it makes it more likely that FISA will work the way it is supposed to going forward.

I even think it possible that the release of this information may affect the response to Keith Gartenlaub’s pending appeal in the Ninth Circuit. His is a case that merits FISA review, and whereas the court might have hesitated to give him that in the past, it would be far easier for them to do so here.

Former Attorney General Michael Mukasey, fresh off trying to broker the release of sanctions violator Reza Zarrab, just gave defense attorneys another big gift.

In a WSJ op-ed that ignores all the holes in the Nunes memo and pretends two guilty pleas about lies about negotiations with Russians have nothing to do with an investigation into “collusion” with Russians, he says that Carter Page’s FISA application should be made public so we can figure out whether DOJ misled the FISA Court.

I believe that at a minimum, the public should get access to a carefully redacted copy of the FISA application and renewals, so we can see whether officials behaved unlawfully by misleading a court;

Remember: when defendants who’ve gotten FISA notice ask to see their own applications to see whether “officials behaved unlawfully by misleading a court,” one thing the government has to do to keep the application secret is submit a declaration from the Attorney General saying that FISA applications are so sensitive they can never be shared with defendants. In the declaration Eric Holder submitted in the Gartenlaub case, for example, he claimed,

Based on the facts and considerations set forth below, I hereby claim that it would harm the national security of the United States to disclose or hold an adversary hearing with respect to the FISA Materials.

[snip]

I certify that the unauthorized disclosure of the FISA Materials that are classified at the “TOP SECRET” level could reasonably be expected to cause exceptionally grave damage to the national security of the United States. I further certify that the unauthorized disclosure of the FISA materials that are classified at the “SECRET” level could be expected to cause serious damage to the national security of the United States. The FISA Materials contain sensitive and classified information concerning United States intelligence sources and methods and other information related to efforts of the United States to conduct national security investigations, including the manner and means by which those investigations are conducted. As a result, the unauthorized disclosure of the information could harm the national security interests of the United States.

I’m sure Holder was using boilerplate that Mukasey himself used, when he submitted similar declarations to courts.

Remember, Gartenlaub is awaiting a ruling from the Ninth Circuit on whether he should be able to access his FISA application to see whether officials misled the FISA Court. The government has been claiming over and over that accessing his FISA application to do so would be too dangerous.

And yet, here we have one of the most hawkish Attorneys General in recent history telling the world that even the public release of FISA applications to do just that would be useful.

Nunes Is So Dumb He Missed the Most Likely Way the Trump Campaign Might Have Been Wiretapped

Devin Nunes is so bad at his job overseeing the nation’s intelligence agencies that his memo alleging FISA abuses failed to mention the one way he might have legitimately argued that the Deep State was spying on the Trump campaign.

The memo, released Friday after a week of political drama, purports to show that the process by which the FBI applied for four individualized FISA orders targeting former Trump foreign policy advisor Carter Page, spanning from October 2016 through July 2017, failed to adequately explain to the court that the application included information obtained as part of paid opposition research. On that claim, the memo falls short of making the case. So too does Nunes’ claim that “top officials used unverified information [from the Title I warrants] to fuel a counter-intelligence investigation during an American political campaign,” since Carter Page had been gone from the Trump campaign for a month before he was targeted.

But the memo only deals with the request for traditional “probable cause” FISA orders approved by the FISA Court. The memo even says this surveillance at issue was “not under Title VII,” probably an effort to distinguish this surveillance practice, which Nunes claims is being abused, from collection under FISA’s Section 702, which is even more problematic from a privacy standpoint. Nunes wrote the bill that reauthorized Section 702 two weeks ago, a bill that included no reforms to the practice that allows the government to access the communications of Americans against whom the FBI has no evidence of wrong-doing without a warrant. That is, Nunes wants to make sure you know that only the FISA practice that actually requires probable cause is at issue in his claims of FISA abuse, not the practice that permits warrantless surveillance of Americans that he championed a few weeks ago.

The thing is, Nunes is probably wrong that the surveillance of Carter Page doesn’t involve any of the authorities he recently pushed through. That’s because, along with Section 702, Nunes’ bill extending FISA’s Title VII also reauthorized a section, 705(b), which the government uses to spy on Americans already under surveillance, like Carter Page, during the periods when they travel overseas.

Carter Page traveled to Russia and London in December 2016 and Abu Dhabi in January 2017; he told the House Intelligence Committee he met with a slew of interesting foreigners along the way. It would be malpractice for the government to halt surveillance on someone it suspected of spying for Russia when he went to Russia.

So assuming the NSA kept spying on Page when he was meeting with the Russians they suspected him of conspiring with while he was in Russia, then the government would have switched to 705(b) authority. That permits the NSA to use the different kinds of surveillance tools, more powerful tools like hacking someone’s computer or querying data collected in bulk, that it uses overseas, drawing from more kinds of collection.

The thing is, that kind of individualized overseas surveillance — far more than the domestic individual surveillance at issue in the memo — has been a problem in recent years. Indeed, in the months before the government obtained its first FISA order on Carter Page, the NSA’s Inspector General found that in the 8 years since Congress had passed 705(b), NSA had never set up a system to track surveillance conducted under it. Of particular concern, analysts were conducting surveillance under the authority outside the time frame permitted under the 705(b) order, meaning that analysts might collect data from a period before the 705(b) order, or even before the traditional FISA order underlying it, had been approved. Or, NSA might forget to turn off their hacking sensor in Page’s laptop or smart phone even after he returned to the US. By using overseas spying methods outside the time period when the person was overseas, then, NSA might have gotten what amounts to a time machine, letting the government (perhaps unknowingly) obtain stored communications from the period when Page was still working with the Trump campaign.

The discovery, in early 2016, that NSA hadn’t been following the rules for the kind of spying that would have been used with Page while he was in Russia led to a string of other discoveries, which in turn led to the termination of one kind of NSA spying, called “about” collection. But the process of fixing 705(b) and “about” collection continued well into the period when Page was under FISA surveillance, including the times when he was traveling overseas.

All that said, if the government obtained information from outside the time of Carter Page’s travels overseas improperly, Trump has only Trump to blame. That’s because, even after they did fix the problems with the program in April 2017, the Trump Administration didn’t do what the Obama Administration before it had done on numerous occasions: get rid of any data obtained improperly under such conditions. So while the underlying problems with 705(b) were never fixed under the Obama Administration (which is absolutely something that should be laid at his feet) Jeff Sessions and Dan Coats would be responsible for any lasting harm under the problems. The Trump Administration’s deviation from past practice in destroying improperly obtained data would be responsible for any harm to Trump.

Ultimately, Nunes’ failure to consider for his politicized memo the one FISA practice most likely to have affected Carter Page identifies the real source of any problems with FISA: a failure of oversight, including from people like Devin Nunes. With the Title VII reauthorization bill he authored, Nunes might have ensured some follow-up to make sure known overseas spying problems were fixed. He might have required the government to make sure it destroyed any data on the Trump campaign it collected while Page was overseas.

Instead, Nunes seems completely unaware that such problems existed.

 

Asha Rangappa Demands Progressive Left Drop Bad Faith Beliefs in Op-Ed Riddled with Errors Demonstrating [FBI’s] Bad Faith

It’s my fault, apparently, that surveillance booster Devin Nunes attacked the FBI this week as part of a ploy to help Donald Trump quash the investigation into Russian involvement in his election victory. That, at least, is the claim offered by the normally rigorous Asha Rangappa in a NYT op-ed.

It’s progressive left privacy defenders like me who are to blame for Nunes’ hoax, according to Rangappa, because — she claims — “the progressive narrative” assumes the people who participate in the FISA process, people like her and her former colleagues at the FBI and the FISA judges, operate in bad faith.

But those on the left denouncing its release should realize that it was progressive and privacy advocates over the past several decades who laid the groundwork for the Nunes memo — not Republicans. That’s because the progressive narrative has focused on an assumption of bad faith on the part of the people who participate in the FISA process, not the process itself.

And then, Ragappa proceeds to roll out a bad faith “narrative” chock full of egregious errors that might lead informed readers to suspect FBI Agents operate in bad faith, drawing conclusions without doing even the most basic investigation to test her pre-conceived narrative.

Rangappa betrays from the very start that she doesn’t know the least bit about what she’s talking about. Throughout, for example, she assumes there’s a partisan split on surveillance skepticism: the progressive left fighting excessive surveillance, and a monolithic Republican party that, up until Devin Nunes’ stunt, “has never meaningfully objected” to FISA until now. As others noted to Rangappa on Twitter, the authoritarian right has objected to FISA from the start, even in the period Rangappa used what she claims was a well-ordered FISA process. That’s when Republican lawyer David Addington was boasting about using terrorist attacks as an excuse to end or bypass the regime. “We’re one bomb away from getting rid of that obnoxious [FISA] court.”

I’m more peeved, however, that Rangappa is utterly unaware that for over a decade, the libertarian right and the progressive left she demonizes have worked together to try to rein in the most dangerous kinds of surveillance. There’s even a Congressional caucus, the Fourth Amendment Caucus, where Republicans like Ted Poe, Justin Amash, and Tom Massie work with Rangappa’s loathed progressive left on reform. Amash, Mike Lee, and Rand Paul, among others, even have their name on legislative attempts to reform surveillance, partnering up with progressives like Zoe Lofgren, John Conyers, Patrick Leahy, and Ron Wyden. This has become an institutionalized coalition that someone with the most basic investigative skills ought to be able to discover.

Since Rangappa has not discovered that coalition, however, it is perhaps unsurprising she has absolutely no clue what the coalition has been doing.

In criticizing the FISA process, the left has not focused so much on fixing procedural loopholes that officials in the executive branch might exploit to maximize their legal authority. Progressives are not asking courts to raise the probable cause standard, or petitioning Congress to add more reporting requirements for the F.B.I.

Again, there are easily discoverable bills and even some laws that show the fruits of progressive left and libertarian right efforts to do just these things. In 2008, the Democrats mandated a multi-agency Inspector General on Addington’s attempt to blow up FISA, the Stellar Wind program. Progressive Pat Leahy has repeatedly mandated other Inspector General reports, which forced the disclosure of FBI’s abusive exigent letter program and that FBI flouted legal mandates regarding Section 215 for seven years (among other things). In 2011, Ron Wyden started his thus far unsuccessful attempt to require the government to disclose how many Americans are affected by Section 702. In 2013, progressive left and libertarian right Senators on the Senate Judiciary Committee tried to get the Intelligence Community Inspector General to review how the multiple parts of the government’s surveillance fit together, to no avail.

Rangappa’s apparent ignorance of this legislative history is all the more remarkable regarding the last several surveillance fights in Congress, USA Freedom Act and this year’s FISA Amendments Act reauthorization (the latter of which she has written repeatedly on). In both fights, the bipartisan privacy coalition fought for — but failed — to force the FBI to comply with the same kind of reporting requirements that the bill imposed on the NSA and CIA, the kind of reporting requirements Rangappa wishes the progressive left would demand. When a left-right coalition in the House Judiciary Committee tried again this year, the FBI stopped negotiating with HJC’s staffers, and instead negotiated exclusively with Devin Nunes and staffers from HPSCI.

With USAF, however, the privacy coalition did succeed in a few reforms (including those reporting requirements for NSA and CIA). Significantly, USAF included language requiring the FISA Court to either include an amicus for issues that present “a novel or significant interpretation of the law,” or explain why it did not. That’s a provision that attempts to fix the “procedural loophole” of having no adversary in the secret court, though it’s a provision of law the current presiding FISC judge, Rosemary Collyer, blew off in last year’s 702 reauthorization. (Note, as I’ve said repeatedly, I don’t think Collyer’s scofflaw behavior is representative of what FISC judges normally do, and so would not argue her disdain for the law feeds a “progressive narrative” that all people involved in the FISA process operated in bad faith.)

Another thing the progressive left and libertarian right won in USAF is new reporting requirements on FISA-related approvals for FISC, to parallel those DOJ must provide. Which brings me to Rangappa’s most hilarious error in an error-ridden piece (it’s an error made by multiple civil libertarians earlier in the week, which I corrected on Twitter, but Rangappa appears to mute me so wouldn’t have seen it).

To defend her claim that the FISC judge who approved the surveillance of Carter Page was operating, if anything, with more rigor than in past years, Rangappa points to EPIC’s tracker of FISA approvals and declares that the 2016 court rejected the highest number of applications in history.

We don’t know whether the memo’s allegations of abuse can be verified. It’s worth noting, however, that Barack Obama’s final year in office saw the highest number of rejected and modified FISA applications in history. This suggests that FISA applications in 2016 received more scrutiny than ever before.

Here’s why this is a belly-laughing error. As noted, USAF required the FISA Court, for the first time, to release its own record of approving applications. It released a partial report (for the period following passage of USAF) covering 2015, and its first full report for 2016. The FISC uses a dramatically different (and more useful) counting method than DOJ, because it counts what happens to any application submitted in preliminary form, whereas DOJ only counts applications submitted in final form. Here’s how the numbers for 2016 compare.

Rangappa relies on EPIC’s count, which for 2016 not only includes an error in the granted number, but adopts the AOUSC counting method just for 2016, making the methodology of its report invalid (it does have a footnote that explains the new AOUSC numbers, but not why it chose to use that number rather than the DOJ one or at least show both).

Using the only valid methodology for comparison with past years, DOJ’s intentionally misleading number, FISC rejected zero applications, which is consistent or worse than other years.

It’s not the error that’s the most amusing part, though. It’s that, to make the FISC look good, she relies on data made available, in significant part, via the efforts of a bipartisan coalition that she claims consists exclusively of lefties doing nothing but demonizing the FISA process.

If anyone has permitted a pre-existing narrative to get in the way of understanding the reality of how FISA currently functions, it’s Rangappa, not her invented progressive left.

Let me be clear. In spite of Rangappa’s invocation (both in the body of her piece and in her biography) of her membership in the FBI tribe, I don’t take her adherence to her chosen narrative in defiance of facts that she made little effort to actually learn to be representative of all FBI Agents (which is why I bracketed FBI in my title). That would be unfair to a lot of really hard-working Agents. But I can think of a goodly number of cases, some quite important, where that has happened, where Agents chased a certain set of leads more vigorously because they fit their preconceptions about who might be a culprit.

That is precisely what has happened here. A culprit, Devin Nunes — the same guy who helped the FBI dodge reporting requirements Rangappa thinks the progressive left should but is not demanding — demonized the FISA process by obscuring what really happens. And rather than holding that culprit responsible, Rangappa has invented some other bad guy to blame. All while complaining that people ever criticize her FBI tribe.

The Harm Releasing the Nunes Memo Caused

I did two pieces elsewhere on the Devin Nunes memo yesterday. At Vice, I tracked all the holes in the memo; subsequent reporting showed that I hit virtually all the big ones that Adam Schiff hit in his response memo: the memo misrepresented what FBI told FISC about the political nature of Christopher Steele’s, it misrepresents Andrew McCabe’s testimony, and the memo misrepresented why George Papadopoulos was mentioned in the application. At HuffPo, I described how on the twin FISA events of the last few weeks — 702 reauthorization and the Nunes memo — both Nunes and Paul Ryan were on the wrong side of the principles of rule of law and civil liberties.

Since the memo has proven to be such a dud, a lot of people are now questioning DOJ’s and Democrats’ claims that releasing the memo would harm national security. I want to lay out three ways (DOJ surely believes) it may well do that.

Tells Carter Page and any co-conspirators precisely when FISA surveillance started

The memo tells Carter Page — and any co-conspirators both within the Trump camp and overseas — precisely when the surveillance on Page started and what it consists of.

FBI obtained an electronic surveillance warrant against Page on October 21, 2016, and obtained 3 reauthorizations (so roughly January 19, April 19, and July 18). While Page’s interlocutors overseas were likely wiretapped, if possible, associates in the Trump camp can now assume any conversations they had with him before October 21 were not recorded and remain unavailable to Robert Mueller.

Mind you, we know the memo doesn’t reveal the full extent of surveillance directed against Carter Page, because it gives no details on the 2014 FISA wiretap reportedly used against him. That leaves open the possibility that he was surveilled using other means. I think the GOP would have included had FISC approved a physical search FISA warrant against Page, because that would include the possibility of obtaining stored communications from during the campaign. But I would also bet a lot of money that whatever Attorney General was in charge during periods when Page traveled overseas approved a 705(b) order on him, permitting surveillance to continue while he was overseas. I’ll have more to say on this in upcoming days.

Note, it is also possible that the surveillance against Page continues.

Tells subjects of the investigation the status of the investigation and FBI’s ability to validate the Steele memo

The memo provides other details about the investigation, too.

On October 21, per a quotation from FBI Assistant Director Bill Priestap, the investigation into Russian ties with the Trump camp was is its “infancy.” Again, this will let Russians and Trump associates know that anything they managed to destroy before that date may well be unavailable to Mueller.

Later in October, the source report on Steele reported that the dossier had been “only minimally corroborated.” If any of the events in the dossier are real, then the Russians (especially) will have a sense of how unsuccessful the FBI had been in finding the evidence to corroborate those events. If the dossier is, as I’ve suggested, disinformation, the Russians would know that their disinformation was wasting FBI Agent time at least for months.

Tells Australians and every other foreign partner shared intelligence may be officially declassified

The memo mentions the Papadopoulos tip and confirms that’s what triggered the investigation; it also confirms that nothing shared prior to then had triggered an investigation. While the description here doesn’t attribute that intelligence to the Australians, we know that’s where it came from. Now Australia and every other country will know that intelligence they share, including intelligence that makes it look like Five Eyes officials are reporting on the citizens of other Five Eyes countries, may be released by Devin Nunes for political gain. This will add to the many reasons why our friends will hesitate before sharing intelligence with us.

Makes it more likely defendants will get FISA review

In the 40 year history of FISA, no defendant who got notice that FISA data was being used against them in prosecution has been able to review the application used against them. Because Nunes released this information so frivolously, because White House Counsel Don McGahn, in his cover memo, suggested this was a time when “public interest in disclosure of [FISA materials] outweighs any need to protect the information, the memo lowers the bar for release of FISA-related information going forward.

I assume Carter Page, if he is charged, will successfully be able to win review of his FISA application (and think that would be entirely appropriate); that may mean he doesn’t get charged or, if he does, Mueller has to bend over backwards to avoid using FISA material.

But I also assume — and hope — that this disclosure ends the 40 year drought on the release of information, which the original drafters of FISA envisioned would be appropriate in certain circumstances. I think this the one salutary benefit of this memo; it makes it more likely that FISA will work the way it is supposed to going forward.

I even think it possible that the release of this information may affect the response to Keith Gartenlaub’s pending appeal in the Ninth Circuit. His is a case that merits FISA review, and whereas the court might have hesitated to give him that in the past, it would be far easier for them to do so here.

In other words, the release of this memo likely helped those Mueller is trying to investigate, provided another reason for our foreign partners to hesitate before sharing intelligence with us, and makes it more likely some defendants will get to review their FISA application going forward. I can see how DOJ would consider all of that harmful to national security.

Update: On Twitter some folks added that this makes people distrust FBI, making it less likely they’ll share information with the Bureau. In my opinion actually sharing interview reports with HPSCI already did that (though that Chris Wray was forced to do so wouldn’t be as widely known). I also think the sheer shittiness of the dossier minimizes the impact of that somewhat. But I think it’s a fair point.

The Increasing Panic Surrounding Devin Nunes’ “Extraordinarily Reckless” Plan to Release Memo

I thought I’d chronicle the increasingly senior panic surrounding Devin Nunes’ plan — reportedly backed by Trump — to release the Nunes memo without first letting FBI and DOJ review it. Clearly, there’s concern this will burn underlying sources for the FISA application(s) described in the report. I don’t rule our the belated revelation of something I’ve been hearing for at least six months — that the Dutch passed on intelligence in real time of APT 29 hacking US targets and had an inside view of the operations — isn’t meant as a warning of what will happen if the US further burns the Dutch.

I’m also interested in AAG Stephen Boyd’s emphasis that Nunes delegated his review of these documents to Trey Gowdy, perhaps suggesting both will have some kind of liability for any damage that will result from this game of telephone.

Sunday, January 21: FBI denied a copy of Nunes’ memo.

“The FBI has requested to receive a copy of the memo in order to evaluate the information and take appropriate steps if necessary. To date, the request has been declined,” said Andrew Ames, a spokesperson for the FBI.

Wednesday, January 24: Richard Burr’s Senate Intelligence Committee staffers denied a copy of the memo.

Senate Intelligence Committee Chairman Richard Burr’s staff has not been given access to a classified memo drafted by House Intelligence Committee Chairman Devin Nunes, a sign of how closely House Republicans are guarding allegations of Justice Department wrongdoing over surveillance activities in the Russia investigation.

According to three sources familiar with the matter, Burr’s staff requested a copy of the memo and has been denied, just as the FBI and Justice Department have also been denied reviewing a copy of the document.

Wednesday, January 24: Trump’s Assistant Attorney General for Legislative Affairs Stephen Boyd writes letter noting that releasing memo will violate agreement.

Recent news reports indicate a classified memorandum prepared by House Permanent Select Committee on Intelligence (HPSCI or Committee) staff alleges abuses at the Department of Justice (Department) and the Federal Bureau of Investigation (FBI) in the FISA process. We understand many members of the House of Representatives have views this memorandum and that it has raised concerns.

As you know, we have provided HPSCI with more than 1,000 pages of classified documents relating to the FBI’s relationship, if any, with a source and its reliance, if any, on information provided by that source. Media reports indicate that the Committee’s memorandum contains highly classified material confidentially provided by the Department to the Committee in a secure facility.1

[snip]

In addition, we have also heard that HPSCI is considering making the classified memorandum available to the public and the media, an unprecedented action. We believe it would be extraordinarily reckless for the Committee to disclose such information publicly without giving the Department and the FBI the opportunity to review the memorandum and to advise the HPSCI of the risk of harm to national security and to ongoing investigations that could come from public release. Indeed, we do not understand why the Committee would possibly seek to disclose classified and law enforcement sensitive information without first consulting with the relevant members of the Intelligence Community.

Seeking Committee approval of public release would require HPSCI committee members to vote on a staff-drafted memorandum that purports to be based on classified source materials that neither you nor most of them have seen. Given HPSCI’s important role in overseeing the nation’s intelligence community, you well understand the damaging impact that the release of classified material could have on our national security and our ability to share and receive sensitive information from friendly foreign governments.

[snip]

Additionally, we believe that wider distribution of the classified information presumably contained within your memorandum would represent a significant deviation from the terms of access granted in good faith by the Department, HPSCI, and the Office of Speaker Paul Ryan.

The Department renews its request — as previously made in a personal appeal by the Director of the FBI — for an opportunity to review the memorandum in question so that it may respond to the Committee before any vote on public release.

1 To date, the Department has provided detailed briefings and made available to HPSCI documents requested as part of its investigation into Russian influence in the 2016 election. The terms of access stipulated that review of the documents would be limited to the Chairman or his designee, the Ranking Member or his designee, and two staff members each. (Mr. Gowdy reviewed the documents for the majority. Mr. Schiff reviewed the documents for the minority.) Other committees of jurisdiction — the Senate Select Committee on Intelligence, the Senate Committee on the Judiciary, and the House Committee on the Judiciary — have accepted similar procedural safeguards to protect against improper dissemination of information.

Thursday, January 25: DOJ spox (and close Jeff Sessions ally) Sarah Isgur Flores goes on Fox to argue DOJ should get to look at the memo first,

Let us see it first. At this point, nobody in the Senate or the White House or the Department of Justice or FBI has seen this document, and a number of Congressmen have expressed a lot of concern about it. So we would like to see it. Well, I think we’d certainly want to see any evidence of wrong-doing and take action upon that if there is wrong-doing going on. And then, I think we’d want to discuss, I mean, this is classified material for a reason. It has national security implications. It may have implications for our allies or others in the intelligence community.

Thursday, January 25: Majority Whip and SSCI member John Cornyn says Nunes should let DOJ review the memo.

Cornyn, who has been briefed on Nunes memo, suggests Nunes should listen to DOJ concerns. “We all should pay attention to what the Justice Department’s concerns are, and I’m sure the chairman will. It’s always good when we communicate and consult with one another,” he told me

Thursday, January 25: James Lankford says Nunes should follow “proper declassification procedures.”

Update: First, I fixed the dates.

Second, I wasn’t aware of this statement from Paul Ryan’s spox, sometime in the last day. (h/t Maestro)

A spokesman for Ryan pushed back at the DOJ’s characterization of the negotiations.

“As previously reported, the speaker’s only message to the Department was that it needed to comply with oversight requests and there were no terms set for its compliance,” Doug Andres, the spokesman, said in a statement.

This is fairly breathtaking, as it suggests Ryan (and by association Nunes) are not agreeing to abide by any of the security precautions imposed on the access to highly sensitive case files Nunes obtained.

Steve King Just Voted to Subject Americans to “Worse than Watergate”

Devin Nunes has launched the next installment of his effort to undercut the Mueller investigation, a “Top Secret” four page report based on his staffers’ review of all the investigative files they got to see back on January 5. He then showed it to a bunch of hack Republicans, who ran to the right wing press to give alarmist quotes about the report (few, if any, have seen the underlying FBI materials).

Mark Meadows (who recently called for Jeff Sessions’ firing as part of this obstruction effort) said, “Part of me wishes that I didn’t read it because I don’t want to believe that those kinds of things could be happening in this country that I call home and love so much.”

Matt Gaetz (who strategized with Trump on how to undercut the Mueller investigation on a recent flight on Air Force One) said, “The facts contained in this memo are jaw-dropping and demand full transparency. There is no higher priority than the release of this information to preserve our democracy.”

Ron DeSantis (who joined Gaetz in that Air Force One strategy session with Trump and also benefitted directly from documents stolen by the Russians) said it was “deeply troubling and raises serious questions about the [the people in the] upper echelon of the Obama DOJ and Comey FBI,” who of course largely remain in place in the Sessions DOJ and Wray FBI.

Steve King claimed what he saw was, “worse than Watergate.” “Is this happening in America or is this the KGB?” Scott Perry said. Jim Jordan (who joined in Meadows’ effort to fire Sessions) said, “It is so alarming.” Lee Zeldin said the FBI, in using FISA orders against Russians and facilities used by suspected agents of Russia was relying “on bad sources & methods.”

It all makes for very good theater. But not a single one of these alarmists voted the way you’d expect on last week’s 702 reauthorization votes if they were really gravely concerned about the power of the FBI to spy on Americans.

Indeed, Gaetz, DeSantis, and King — three of those squawking the loudest — voted to give the same FBI they’re claiming is rife with abuse more power to spy on Americans, including political dissidents. Nunes, who wrote this alarming report, also wrote the bill to expand the power of the FBI he’s now pretending is badly abusive.

Even those who voted in favor of the Amash-Lofgren amendment and against final reauthorization — Meadows, Jordan, and Perry, among some of those engaging in this political stunt — voted against the Democratic motion to recommit, which would have at least bought more time and minimally improved the underlying bill (Justin Amash and Tom Massie, both real libertarians, voted with Democrats on the motion to recommit). Zeldin was among those who flipped his vote, backing the bill that will give the FBI more power after making a show of supporting Amash’s far better bill.

In short, not a single one of these men screaming about abuse at the FBI did everything they could do to prevent the FBI from getting more power.

Which — if you didn’t already need proof — shows what a hack stunt this is.

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

Jack Goldsmith and Susan Hennessey Run Cover for Those Giving Jeff Sessions Unreviewable Authority to Criminalize Dissent

I’m used to Susan Hennessey partnering with Ben Wittes to write apologies for NSA and FBI that ignore known facts. I’m a bit surprised that Jack Goldsmith did so in this defense of Democrats — like Adam Schiff and Nancy Pelosi and nineteen Democratic Senators — who have voted to give Jeff Sessions unreviewable authority to criminalize dissent using certain privacy tools.

NSA did not fix “abouts” problems before the issues became public

There are numerous problems with this post. The one that irks me the most, however, is the claim that the “system itself” identified and addressed problems with “abouts” collection before they became public.

We acknowledge that the program has raised hard legal questions as well as difficult compliance issues, primarily involving “abouts” collection. But these problems were identified by the system itself, long before the issues became public, and the practices were fixed or terminated.

This claim, one I’ve corrected Hennessey for on numerous occasions on Twitter, is false, and should be retracted.

I say that with great confidence, because I wrote about the problems on August 11, 2016, well before NSA failed to disclose the full extent of the problems in an October 4, 2016 hearing, which led the worst FISC judge ever, Rosemary Collyer, to complain about NSA’s institutional “lack of candor.”

At the October 26, 2016 hearing, the Court ascribed the government’s failure to disclose those IG and OCO reviews at the October 4, 2016 hearing to an institutional “lack of candor” on NSA’s part and emphasized that “this is a very serious Fourth Amendment issue.”

As a reminder, the problem (the FISC has) with “abouts” collection is not so much that it collected entirely domestic communications — that’s the complaint of the rest of us. It’s that NSA never ever complied with John Bates’ 2011 requirement that NSA not conduct back door searches on upstream collection, because it might result in searches of those entirely domestic communications. In my August 2016 post, I noted that reviewers kept discovering that NSA continued to do back door searches on upstream data in violation of that prohibition, and kept refusing to implement technical fixes to avoid them.

I also raised concerns about the oversight of 704/705(b), which is how the NSA first realized how badly non-compliant their upstream searches were, on May 13, 2016, That’s about when NSA first reported to DOJ “in May and June 2016” that “approximately eighty-five percent of” queries using a tool the NSA employs with 704/705b queries “were not compliant with the applicable minimization procedures.”

I’ll grant that I’m remarkably attentive to documents that get declassified years after the fact. But I’m nevertheless “the public.” If I’m identifying these problems — and NSA’s refusal to make the technical fixes to avoid them — before they get fully briefed to DOJ or FISC, then it is absolutely false to claim that “the system” fixed or terminated the problem long before they became public.

Again, Lawfare should issue a retraction for that claim.

Update, January 19: On Twitter yesterday, Hennessey claimed I misread this quote, and that her proof that the system works was that the NSA had gotten away with ignoring Bates’ orders for five years, but finally shut it down before the public learned that NSA had been ignoring FISC’s orders.

This is still factually false — as I responded to her, the NSA was still identifying problems for eight months after I wrote about the problems, even assuming it had found all of them by April 2017, which was the last declassified reporting on it. But her explanation actually makes the comment downright damning for the NSA. It suggests a lawyer who was at NSA during the period it was not in compliance believes that getting away with violating the Fourth Amendment for five years, but fixing it before documents released on a three year delay (and only because of Snowden) is a sign of a law-abiding agency.

A portrait of a guy who doesn’t know key details as a rigorous overseer

The fact that I was harping on the “abouts” problems before any overseers of the program managed to fully investigate and fix them by itself disproves the claims that Hennessey and Goldsmith make in their hagiography of Adam Schiff.

He is the ranking Democrat on the House intelligence committee and one of the most knowledgeable and informed members of Congress on intelligence matters. Schiff has not hesitated to be  when he sees fit. He has watched the 702 program up close over many years in classified settings in his oversight role. He knows well its virtues and its warts. We suppose it is possible that Schiff would vote to give the president, whose integrity he so obviously worries about, vast powers to spy on Americans in an abusive way. Given everything Schiff has publicly said and done over the last year, however, a much more plausible inference is that he knows not only how valuable the 702 program is but also how law-constrained and carefully controlled and monitored it is.

Plus, I’m not sure why they think that Schiff’s attempt to fix the Section 215 phone dragnet only after Edward Snowden made it public proves that Schiff “never hesitated to be critical of intelligence community practices.” On the contrary, it proves that he did hesitate to do so before excessive programs became public.

The distinction is utterly critical given something I’ve pointed out about this bill. The bill itself is an admission that the intelligence community is out of control, and that congressional overseers can’t get information they need to adequately oversee the program without demanding it in legislation. That’s because it requires the IC to provide information on two practices that Congress cannot be deemed competent to legislate on without having answers about first.

For example, the bill requires an IG Report on how FBI queries raw data.

(b) MATTERS INCLUDED.—The report under subsection (a) shall include, at a minimum, an assessment of the following:

(1) The interpretations by the Federal Bureau of Investigation and the National Security Division of the Department of Justice, respectively, relating to the querying procedures adopted under subsection (f) of section 702 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a(f)), as added by section 101.

[snip]

(6) The scope of access by the criminal division of the Federal Bureau of Investigation to information obtained pursuant to the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), including with respect to information acquired under subsection (a) of such section 702 based on queries conducted by the criminal division.

(7) The frequency and nature of the reviews conducted by the National Security Division of the Department of Justice and the Office of the Director of National Intelligence relating to the compliance by the Federal Bureau of Investigation with such querying procedures.

I have explained (and I know Hennessey regards this as a problem too) that since 2012, FBI has devolved its access to raw 702 data to field offices. The FBI already conducted far, far less oversight of the back door searches it conducts than NSA does. But because the DOJ/DNI 702 review teams visit only a fraction of the FBI field offices with each review, and because FBI’s querying system doesn’t collect enough information to do oversight remotely, it is possible that the offices that are least familiar with 702 requirements are — for the smaller number of 702 queries they conduct — getting the least oversight.

You can’t pass a bill that effectively blesses FBI’s use of back door searches on Americans about whom it has no evidence of any wrongdoing, while admitting you don’t know how FBI conducts those back door searches, and make any claim to conduct adequate oversight. Rather, the bill permits FBI to continue practices it has stubbornly refused to brief Congress on, rather than demanding that FBI brief Congress first, so Congress can impose any restrictions that might be necessary to adequately protect Americans.

The bill also requires a briefing within six months to explain how DOJ complies with FISA’s legally mandated notice requirements (because notice under 702 is treated as notice under 106(c), this covers 702 surveillance as well).

Not later than 180 days after the date of the enactment of this Act, the Attorney General, in consultation with the Director of National Intelligence, shall provide to the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives and the Committee on the Judiciary and the Select 10 Committee on Intelligence of the Senate a briefing with respect to how the Department of Justice interprets the requirements under sections 106(c), 305(d), and 405(c) of the Foreign Intelligence Surveillance Act of 1978 (50 14 U.S.C. 1806(c), 1825(d), and 1845(c)) to notify an aggrieved person under such sections of the use of information obtained or derived from electronic surveillance, physical search, or the use of a pen register or trap and trace device. The briefing shall focus on how the Department interprets the phrase ‘‘obtained or derived from’’ in such sections.

The public treatment of DOJ’s serial, obvious failures to give notice to defendants is a nifty trick. When DOJ fails to give notice, it clearly violates the law, but notice is not included in minimization procedure review, so therefore is not reviewed by the FISC. When surveillance boosters like Hennessey and Goldsmith say there have never been any willful violations of the law, they manage to ignore the notice violations that have allowed some pretty problematic practices to avoid judicial oversight only because by breaking the law DOJ ensures no court will find them to be breaking the law.

Catch 22: Heads legal violations never get reviewed by a court, tails surveillance boosters can claim the surveillance has a clean bill of health.

Again, this is a known, egregious problem with the implementation of 702.

But rather than do the obvious thing as part of what this post dubs “robust democratic deliberation,” which is to demand answers about how notice is (not) given and require DOJ to fix it as part of the bill, the bill instead simply requires DOJ to provide the information that Congress needs to do basic oversight six months after reauthorization, which effectively punts fixing the problem six years down the road.

How many Chinese-American scientists will be improperly prosecuted because FBI is technically inane in those 6 years, because a bunch of California legislators like Nancy Pelosi, Adam Schiff, and Dianne Feinstein chose to punt on basic oversight?

The most egregious example of this, however, involves the government’s obstinate refusal to explain how many US persons are affected by 702. This bill also did not incorporate an HJC proposal requiring a count of how many Americans got referred for criminal prosecution off of 702 collection.

Letting Jeff Sessions criminalize dissent

That refusal — the refusal to even legislatively require the government to report on the impact of 702 surveillance on Americans, via incidental collection and/or criminal referral — brings us to the problem with this bill that opponents are all raising, but about which Hennessey and Goldsmith are inexcusably silent: the codification of giving Jeff Sessions unreviewable authority to determine what counts as a “criminal proceeding [that] affects, involves, or is related to the national security of the United States.”

Here’s how Hennessey and Goldsmith describe the impact of this program on Americans.

As Lawfare readers know, Section 702 authorizes the intelligence community to target the communications of non-U.S. persons located outside the United States for foreign intelligence purposes. It does not permit the intelligence community to target a U.S. person anywhere in the world. But it does permit incidental collection on U.S. persons, subject to strict rules about minimization and use.

Their silence about how the bill doesn’t deal with back door searches is problematic enough.

But they predictably, but problematically, make no mention of the way the bill codifies the use of 702 in domestic law enforcement under the Tor/VPN exception.

As I have laid out, in 2014 FISC created an exception to the rule that NSA must detask from a facility as soon as they learn that Americans are also using that facility. That exception applies to Tor and (though I understand this part even less) VPN servers — basically the kinds of privacy tools that criminals, spies, journalists, and dissidents might use to hide their online activities. NSA has to sort through what they collect on the back end, but along the way, they get to decide to keep any entirely domestic traffic they find has significant foreign intelligence purpose or is evidence of a crime, among other reasons. The bill even codifies 8 enumerated crimes under which they can keep such data. Some of those crimes — child porn and murder — make sense, but others — like transnational crime (including local drug dealers selling imported drugs) and CFAA (with its well-known propensity for abuse) pose more potential for abuse.

But it’s the unreviewable authority for Jeff Sessions bit that is the real problem.

We know, for example, that painting Black Lives Matter as a national security threat is key to the Trump-Sessions effort to criminalize race. We also know that Trump has accused his opponents of treason, all for making critical comments about Trump.

This bill gives Sessions unreviewable authority to decide that a BLM protest organized using or whistleblowing relying on Tor, discovered by collection done in the name of hunting Russian spies, can be referred for prosecution. The fact that the underlying data predicating any prosecution was obtained without a warrant under 702 would — in part because this bill doesn’t add teeth to FISA notice — ensure that courts would never learn the genesis of the prosecution. Even if a court somehow managed to do so, however, it could never deem the domestic surveillance unlawful because the bill gives Jeff Sessions the unreviewable authority to treat dissent as a national security threat.

This is such an obviously bad idea, and it is being supported by people who talk incessantly about the threat that Trump and Sessions present. Yet, rather than addressing the issue head on (which I doubt Hennessey could legally do in any case), they simply remain silent about what is the biggest complaint from privacy activists, that this gives a racist, vindictive Attorney General far more authority than he should have, and does so without fixing the inadequate protections for criminal defendants along the way.

I mean, I get that surveillance boosters who recognize the threat Trump and Sessions pose want to absolve themselves for giving Trump tools that can so obviously be abused.

But this attempt does so precisely by dodging the most obvious reasons for which boosters should be held to account.

Update: Changed post to note that just Trump has accused FBI Agents of treason, not Sessions, and not (yet) journalists.

Update: Here’s the roll call of the 65-34 vote passage of the bill. Democrats who voted in favor are:

  1. Carper
  2. Casey
  3. Cortez Masto
  4. Donnelly
  5. Duckworth
  6. Feinstein
  7. Hassan
  8. Heitkamp
  9. Jones
  10. Klobuchar
  11. Manchin
  12. McCaskill
  13. Nelson
  14. Peters
  15. Reed
  16. Schumer
  17. Shaheen
  18. Stabenow
  19. Warner
  20. Whitehouse

 

The 702 Capitulations: a Real Measure of the “Deep State”

There were two details of the Section 702 reauthorization in the House that deserve more attention, as the Senate prepares for a cloture vote today at 5:30.

First, in the Rules Committee hearing for the bill, Ranking House Judiciary Committee member Jerry Nadler revealed that the FBI stopped engaging with his staffers when the two sides reached a point on negotiations over the bill beyond which they refused to budge.

Effectively, FBI just used the dual HJC/House Intelligence jurisdiction over FISA to avoid engaging in the legislative process, to avoid making any concessions to representatives supposedly overseeing this program.

As a result, the final bill included only a sham warrant requirement — one that will give criminal suspects more protection against warrantless search than it gives people against whom the FBI has no suspicion — and provided an easy way for the NSA to turn “about” collection (which has been the source of repeated NSA violations of FISA over the years) back on.

Then there was the effort Nancy Pelosi made to use the President’s reactive FISA tweet to impose a few more limits on the warrant requirement. In a filibustering speech, she suggested that Trump’s tweet claiming his had been surveilled and abused under the law (in reality, Title I warrants were used during the campaign, but Section 702 has likely been part of the investigation as well) necessitated a motion to recommit instructing HPSCI to boost the protections for Americans.

Pelosi had to have know the motion would fail (it did, with just six of the most libertarian Republicans joining Democrats in support). She counts votes better than anyone.

What the vote was really about was an effort not to fix the real problems with the bill. Nor was it a meaningful effort to add anything but illusory protections to the bill. It was an effort to make a vote in support of the bill more politically palatable. Pelosi (and Adam Schiff, who worked closely with Pelosi on this front) appears to have known that there will be political costs for supporting this bill, perhaps especially in San Francisco where one-fifth of Pelosi’s constituents are Chinese-American, one of the groups most disproportionately affected by the spying program.

She knew she was going to have to vote for the bill, political cost and all, and was trying to use Trump’s tweet to minimize the costs of doing so.

These two events, in my opinion, show how dysfunctional legislation affecting the “Deep State,” the entrenched national security bureaucracy, is. There is a clear political recognition among the Democratic leaders cooperating in passing the bill that the bill goes too far. Probably, they worry about what will happen when we learn how Jeff Sessions will use the unreviewable authority to deem either warrantless back door searches for Americans’ names or retention of Tor and VPN domestic collection a “national security” issue to target Democratic constituencies.

But that recognition was not enough to muster the political will to oppose the bill.

Heads the “Deep State” wins, tails democratic oversight fails.

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