The Dispute over the Accusation Maria Butina Is a Spotter Distracts from Clear Case She Should Be Sent Home

Let me start by saying that I think the government should put Maria Butina, who is currently scheduled to be sentenced Friday, on a plane and send her home. The impression given when she signed a plea deal is that she might get a six month sentence. She has cooperated fully — the government is submitting a sealed downward departure letter describing her cooperation — and the period of her cooperation has been extended a bit. She has already been detained nine months.

Even according to the government’s own sentencing memorandum, the defense can and should compellingly argue that she has served a fair sentence. The most directly relevant case the government points to in its memo is that of Evgeny Buryakov, one of the guys who tried to recruit Carter Page.

In United States v. Buryakov, No. 15-CR-73 (S.D.N.Y.), the defendant pled guilty to violating § 951, stemming from an agreement to take actions within the United States at the direction of a Russian government official. The parties agreed, pursuant to Fed. R. Crim. P. 11(c)(1)(C), to a sentence of 30 months of incarceration. The court accepted that agreement and imposed a sentence of 30 months.

Buryakov pled guilty, but after far more litigation, including some CIPA hearings. He did not (at least according to the public record) cooperate with the government at all. And while the government dropped some of their claims, they considered Buryakov as an undisclosed SVR Agent, someone who operated clandestinely as a trained professional, as compared to Butina, whom the government doesn’t claim is a trained intelligence officer and who operated overtly. The comparison with Buryakov, then, makes a solid argument that Butina should be shipped home immediately. She started cooperating early and the government deems her cooperation valuable. And the government agrees she’s not the same kind of clandestine spy that Buryakov was.

That, to me, seems like a slam dunk case supporting a just outcome, which would be for Butina to be on the next flight home.

All that said, I have a very different opinion than Butina’s defense attorneys on the government’s submission of a declaration from the former Assistant Director of FBI’s Counterintelligence Division, Robert Anderson Jr., accompanying their request for an eighteen month sentence. After the government submitted the declaration (which they claim they warned the defense about on April 10, though the defense complains they only learned Anderson’s identity on the April 17), the defense asked for it to be stricken, complaining that the government is submitting a new, unsubstantiated case.

Again, I think the government’s request for an eighteen month sentence is bullshit, given the facts that both sides agree on and the precedents they cite. And the defense is right about some of their complaints about Anderson’s declaration — most notably, that it doesn’t cite which case materials he relies on to make his declaration suggesting Butina functioned as a spotter for Russian intelligence.

But their complaints about the substance of Anderson’s declaration are made in isolation from the government’s sentencing memo. As such, they don’t address what I think are weaknesses of their own sentencing memorandum. Those weaknesses, put together with the claims the government and Anderson make, do leave the impression that the defense is trying to downplay Butina’s enthusiasm for a project that (exhibits presented by the government show) she believed would increase her own influence within Russia.

The defense explanation for Butina’s gun rights activism comes off as complete BS.

She returned to the issue of gun rights. Her father had taught her how to use a hunting rifle as a child, a hobby they both shared. Her gun rights advocacy had also been one of the most popular issues in her campaign for local office right after graduating, and she already started a small gun rights group in Barnaul. Using social networking websites, Maria was able to form a formidable group in Moscow, organizing demonstrations and protests, particularly on the issue of personal safety. Based on her admiration of western democratic freedoms, a group name was chosen: the Right to Bear Arms.

Notably, gun advocacy in Russia has little to do with gun advocacy in the United States. A hundred years ago, during the Russian Civil War, guns were confiscated by the precursor of the Soviet Union. With few exceptions, Russians today cannot carry or own most firearms. Yet, the issue of gun rights was important to Maria as a matter of self-defense, when for every five people murdered in the United States, there were fifteen murdered in Russia.1 For Maria, gun rights— however unpopular—was a means for personal safety, and Maria sought support for her advocacy from across the political spectrum. It didn’t matter to her whether the person was liberal, conservative, in government, or oppositional, and she had a slogan written on her office door that read “anyone who supports gun rights may come in, but you leave your flag behind.”

[snip]

As Maria’s group membership multiplied, she planned an annual convention for fall 2013, with similar gun-rights organizations from around the world invited to Moscow for the meeting. Torshin gave Maria the contact information for David Keene (a former NRA President), who Torshin met on a prior trip to the United States. Because Torshin did not speak or write English, Maria reached out to Keene to invite him and any other NRA members for her group’s annual meeting. Keene accepted the invitation and asked Paul Erickson to accompany him. Maria was elated.

This passage, and other parts of the memo, can’t decide whether Butina’s is a strictly Russian phenomenon or a way to solidify her ties with America. It admits Russia doesn’t support gun rights but doesn’t explain, then, the great support she got.

And the defense again claims that the government dropped all accusations she used romance for recruiting, except that’s not true. They never dropped the suggestion her relationship with Erickson was utilitarian — a claim bolstered by Butina’s willingess to cooperate against him and enthusiasm for returning home. And the defense discussion of the relationship between the two also rings hollow (as did their earlier efforts to make it look authentic), especially as it related to her project, Description of Diplomacy (a copy of which the government entered as an exhibit).

She also wished to be in the same hemisphere as her romantic interest. So Maria and Erickson explored both educational and business opportunities for her. This is the genesis of the Description of the Diplomacy Project proposal referenced in the Statement of Offense.

If the only reason she came to the US was to be with Erickson, grad school by itself would have been adequate.

The exhibits included — even before you get to the Anderson declaration — are why the government’s sentencing memo comes off as more credible as to the substance. Perhaps most compelling are Butina’s repeated concerns that she and Aleksandr Torshin remain the people with the handle on the Russian government’s exploitation of the NRA and National Prayer Breakfast as influence channels.

Following the Gun Rights Organization trip to Moscow, the defendant and the Russian Official discussed the need to “hold the spot” now that “everyone has realized that [the Gun Rights Organization] is a valuable contact,” and she noted that there will be “attempts to seize the initiative.” Exhibit 2. Butina has since confirmed that she was worried about others within the Russian government or a political group or activist noticing that the contacts she had built with the Gun Rights Organization were valuable and cutting her and the Russian Official out of the loop.

[snip]

According to a document written by Butina after the event, in the lead-up to the National Prayer Breakfast, she and the Russian Official were promised a private meeting with the President of the United States by one of the organizers of the event. A copy of this document is attached hereto as Exhibit 8. This promised meeting never materialized. After the event, and Butina’s and the Russian Official’s failure to meet privately with the President, she was worried that another Russian national (i.e., not the Russian Official) would attempt to seize the initiative, as demonstrated in her Twitter conversation with the Russian Official:

Butina: It would be good if you could talk directly with the MFA or the administration. Before [Russian national who attended the breakfast] worms his way in there.

Russian Official: Everything will be fine. I already conducted the necessary informal consultations on Saturday. I just don’t want to overload Twitter, which is read.

We need to build relationships with the USA, but there are many who oppose this! . . . According to Butina, this other Russian national referred to was another member of the Russian government whom Butina feared would overtake her and the Russian Official as the primary Russian point of contact for the National Prayer Breakfast.

If all this networking was exclusively about being close to Erickson, why would Butina care so much that she and Torshin were viewed as the brokers of these links to the US? And this kind of competitive oligarch-focused influence operation is the modus operandi we’ve seen from much of Russia’s efforts in recent years.

That’s why — caveats about the form of the declaration, which Butina’s lawyers will undoubtedly emphasize if sentencing happens Friday — I don’t have much problem with Anderson’s explanation of how the Butina collected could — and likely was — useful for Russia. I also don’t think the evidence presented is — as the defense claims — all that new (indeed, some reporters are claiming some of the details — such as that Butina claimed to have input over who would be Secretary of State — are new, but they are not).

I do recognize it’s probably an attempt to parallel construct stuff FBI knows via other channels that — by having an ostensible outsider deliver — they can make intelligence claims in an unclassified setting. As such, it surely serves as an opportunity for those close to the FBI to lay out a counterintelligence claim about Russia’s methods, generally, as it was interpreted as by Andrew Weiss. But neither of those things change the fact that what Butina did doesn’t compare to what Buryakov did, and by distinguishing those details from Buryakov, Butina’s lawyers could easily back their case it’s time to send her home.

I think prosecutors are being assholes for not letting Butina go. Holding her any longer is not going to serve as a deterrent to Russia, as they claim.

But that’s them about being asshole prosecutors generally (and, presumably, trying to use this case to boost their careers). Whatever the narrative about why Butina did what she did (and, again, the government’s is more credible at this point), the assertions made by both sides still only justifies sending her home.

Update: Judge Tanya Chutkan has denied this request, noting that she offered to give them more time to respond to it, but they didn’t take her up on it.

MINUTE ORDER as to Mariia Butina: Defendant’s 102 Motion to Exclude and Strike the Declaration of Robert Anderson, Jr. is DENIED. Defendant has had notice of the government’s intent to call Mr. Anderson as a witness or submit a Declaration from him since April 10, 2019. The court “may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information [the court] may consider, or the source from which it may come.” United States v. McCrory, 930 F.2d 63, 68 (D.C. Cir. 1991) (quotation marks and citations omitted); see also United States v. Beaulieu, 893 F.2d 1177, 1179 (10th Cir. 1990) (“[C]ourts have traditionally been allowed to consider all sources of information in formulating an appropriate sentence.”). The defense did not request additional time to prepare a rebuttal to Mr. Anderson’s Declaration, despite the court’s willingness to adjourn sentencing in order for it to do so. Therefore, the Sentencing Hearing will not be adjourned. Signed by Judge Tanya S. Chutkan on 4/25/2019.(lctsc3) (Entered: 04/25/2019)

Eli Lake’s Serial Defense of Bibi Netanyahu’s Clandestine Tampering Makes Him the Poster Child Proving Ilhan Omar Right

I haven’t really engaged in the serial debate over what Ilhan Omar or Rashida Tlaib should be permitted to say without being accused of anti-Semitism. Yes, as Muslim women, they are being selectively targeted, even as the President and Steve King make blatant racist comments with less pushback. But at least from afar, my sense was that the serial efforts to silence them have backfired, delineating (even as Bibi Netanyahu desperately shifts further right in a bid to retain power while being prosecuted for being a criminal sleaze) both the degree to which Congress has lagged the country in recognizing areas where Israel can and should be criticized and the degree to which a goodly number of American Jews agree with that. Omar and Tlaib will weather these attacks, I figure, and in the process, a lot of apology for Israeli human rights abuses will be exposed.

That was before I saw this astonishing column from Eli Lake. His specific attack — the purported complaint justifying the column — is that Omar has said, in several ways, that Israel has too much influence in Congress.

In response to a tweet from Representative Nita Lowey of New York, Omar explained that she “should not be expected to have allegiance/pledge support to a foreign country in order to serve my country in Congress.” The implication was that supporters of Israel in Congress were more loyal to the Jewish state than to America. The tweet followed an appearance at a Washington bookstore where she said she just wanted to talk about the influence of Israel on Congress without being called anti-Semitic.

Before he gets there, though, he rehearses past statements Omar has made that rightly were deemed tin-eared, but were also complaints about the influence of Israel in Congress.

That followed a tweet she sent last month suggesting that congressional support for Israel is “all about the Benjamins.”

Sensing a pattern? Omar has already had to apologize twice for her comments about Israel and its lobby. She didn’t know, she said, that saying Israel had hypnotized the world into accepting its war crimes might be offensive to Jews. She didn’t understand, she explained, how vile it is to say that members of Congress vote in favor of Israel because they are paid off. She says she opposes anti-Semitism but will not be silenced when it comes to the Jewish state’s pernicious efforts to shape U.S. foreign policy.

And before Eli Lake gets there, he first accuses elected Congresswoman Ilhan Omar — who, after all, is asking for a more balanced debate on Middle Eastern issues — of (!!!) “self-appointed policing of the national interest.” [my emphasis]

Now, before I go back and look at the truly disgusting accusation Lake makes of Omar because she opines that Israel has too much influence in Congress (Lake, down in paragraph nine, ultimately admits “criticism of the pro-Israel lobby is not in and of itself anti-Semitic”), let me talk about why it is so absurd that Lake, of all people, is making this attack.

Let’s pretend for the moment (I don’t agree, at all, but just for sake of debate) that Omar’s critics are right: that the language that she uses to criticize Israel’s influence on Congress continues to be anti-Semitic, which devalues her argument that Israel exercises detrimental influence in this country.

Now let’s consider how that argument comes from Eli Lake.

Lake has, twice, been the stenographer for complaints launched by Catholic congressman Devin Nunes about how the Executive Branch of the United States treats SIGINT capturing Israel’s efforts to undermine the official policy of the United States.

The second time was when Trump’s pick to be National Security Advisor, at a time when he was under active counterintelligence investigation for his ties to Russia, and at a time when he had not registered for serving as an agent of the state of Turkey, called up Russia’s ambassador to ask him to undercut the stated foreign policy position of then President Obama.

On or about December 21, 2016, Egypt submitted a resolution to the United Nations Security Council on the issue of Israeli settlements (“resolution”). The United Nations Security Council was scheduled to vote on the resolution the following day.

On or about December 22, 2016, a very senior member of the Presidential Transition Team directed FLYNN to contact officials from foreign governments, including Russia, to learn where each government stood on the resolution and to influence those governments to delay the vote or defeat the resolution.

On or about December 22, 2016, FLYNN contacted the Russian Ambassador about the pending vote. FLYNN informed the Russian Ambassador about the incoming administration’s opposition to the resolution, and requested that Russia vote against or delay the resolution.

As Lake himself reported, this Jared Kushner-led effort was coordinated with Bibi Netanyahu, whose lackeys were sharing their own intelligence to try to defeat the stated policy of the Administration at the time.

This was the context of Kushner’s instruction to Flynn last December. One transition official at the time said Kushner called Flynn to tell him he needed to get every foreign minister or ambassador from a country on the U.N. Security Council to delay or vote against the resolution. Much of this appeared to be coordinated also with Israeli prime minister Benjamin Netanyahu, whose envoys shared their own intelligence about the Obama administration’s lobbying efforts to get member states to support the resolution with the Trump transition team.

Now, not only did Mike Flynn (who was raised Catholic) call up the Russian Ambassador to try to thwart the policy of the United States, but he did so after someone in Trump’s transition told Obama that they would not undercut Obama’s policies before inauguration. When Flynn was asked about doing so by the FBI, he lied.

Those two attempts to hide this effort makes it a clandestine effort, backed by the intelligence of a foreign nation, to undercut the stated policy of the United States.

I mean, Devin Nunes was also upset that the Obama Administration caught Flynn and others trying to monetize policy considerations with the Emirates. But the 2017 panic over unmasking — sown largely by Eli Lake — has to do with Flynn and others being exposed for clandestinely working with foreign governments to undermine the stated policy of the US, and — at times in conjunction with that effort — to cash in on doing so.

Devin Nunes and Eli Lake think unmasking those communications was improper. (Here’s a tweet linking Lake’s series trying to claim this was some big civil liberties problem.)

According to Nunes as relayed by his scribe Eli Lake, the second unmasking panic built on an earlier one. The earlier one pertained (in part) to Israel sharing the intelligence it had collected by spying on Americans with Americans in an effort to undercut the policy of the President of the United States pursuing a peace deal with Iran.

Stepped-up NSA eavesdropping revealed to the White House how Mr. Netanyahu and his advisers had leaked details of the U.S.-Iran negotiations—learned through Israeli spying operations—to undermine the talks; coordinated talking points with Jewish-American groups against the deal; and asked undecided lawmakers what it would take to win their votes, according to current and former officials familiar with the intercepts.

As the WSJ (which Lake endorsed during our Twitter spat on this) laid out, unlike the Mike Flynn intercepts, the Obama Administration did not specifically ask for NSA to unmask any members of Congress; it let NSA decide what needed to be shared to make sense of the intercepts. But what NSA did share revealed how Israel was lobbying Congress to get votes to undercut the Administration. The intercepts also revealed which Israelis who had been privy to US classified briefings were leaking that information.

[T]he White House let the NSA decide what to share and what to withhold, officials said. “We didn’t say, ‘Do it,’ ” a senior U.S. official said. “We didn’t say, ‘Don’t do it.’ ”

[snip]

Netanyahu to deliver a speech to a joint session of Congress. A day later, Mr. Boehner called Ron Dermer, the Israeli ambassador, to get Mr. Netanyahu’s agreement.

Despite NSA surveillance, Obama administration officials said they were caught off guard when Mr. Boehner announced the invitation on Jan. 21.

Soon after, Israel’s lobbying campaign against the deal went into full swing on Capitol Hill, and it didn’t take long for administration and intelligence officials to realize the NSA was sweeping up the content of conversations with lawmakers.

The message to the NSA from the White House amounted to: “You decide” what to deliver, a former intelligence official said.

[snip]

The NSA reports allowed administration officials to peer inside Israeli efforts to turn Congress against the deal. Mr. Dermer was described as coaching unnamed U.S. organizations—which officials could tell from the context were Jewish-American groups—on lines of argument to use with lawmakers, and Israeli officials were reported pressing lawmakers to oppose the deal.

[snip]

A U.S. intelligence official familiar with the intercepts said Israel’s pitch to undecided lawmakers often included such questions as: “How can we get your vote? What’s it going to take?”

NSA intelligence reports helped the White House figure out which Israeli government officials had leaked information from confidential U.S. briefings. [my emphasis]

In other words, this earlier panic was handled the way surveillance is; it only became a problem because so many members of Congress, from both parties, were being caught up in calls with Bibi or his minions. That is, it only became a panic because Israel so aggressively and confidently believes it can bend the will of Congress.

Which seems to be Omar’s point.

So the second panic is based off a first one that deems normal surveillance improper because Israel generally and Bibi specifically so prolifically lobbies Congress that normal surveillance amounts to a breach of the separation of powers.

Which is why this thread started with me mocking that the chief scribe for Nunes’ complaints that Bibi’s efforts — in both 2014 and 2016 — to undermine the stated policy of the United States got picked up by the NSA.

After that, he spent the day complaining (seven times!) that I was writing a post on a breaking surveillance issue and doing an hour long conference call on surveillance, rather than explaining why spying on Bibi (and suspected foreign agent Mike Flynn) undermining stated US foreign policy wasn’t a civil liberties issue.

I hope you can see how Eli Lake, of all people, is not very persuasive in suggesting that Ilhan Omar’s views — that Israel has too much influence over Congress — must be silenced.

And Eli Lake, the chief scribe attempting to portray pretty exceptional efforts by Bibi Netanyahu to get Christians like Devin Nunes and Mike Flynn and Tom Cotton to undercut the stated policy of the US, doesn’t just scold elected Representative Ilhan Omar for being her, quote, “self-appointed policing of the national interest.” He also likens her — by spinning what his own actions prove to be Israel’s exceptional influence over Congress generally, including Christians — to David Duke.

Here is a Somali-American refugee success story, a woman who embodies the American ideal of citizenship not based on race, creed or religion. And yet, in barely two months in office, the Minnesota Democrat has repeatedly questioned the loyalty of Zionists.

Historically this kind of thing has been associated with the ugly nativist strain of American politics. David Duke famously called the federal government the ZOG, for Zionist-Occupied Government. A similar note was sounded by Pat Buchanan, who once called Congress Israel’s “amen corner.” More recently one finds this sentiment on the left: A few years back, the Center for American Progress parted ways with a few bloggers after they used the term “Israel Firster” to describe pro-Israel members of Congress.

I wouldn’t consider Devin Nunes or Mike Flynn or Tom Cotton to be Zionists at all (though Cotton is definitely a Neocon). But somehow Lake spins what his very career proves to be the case — that Israel exercises a great deal of influence in DC — to suggest Somali-American Omar is a nativist.

From anyone else, this would just be a stupid racist attack. But coming from Lake it is parody that nevertheless proves Omar’s point better than almost anything else could.

Update: Changed how I described Flynn’s FARA crime to match the timeline DOJ currently uses.

Bamford’s Silence about How Maria Butina Got Thrown Back into Solitary

A number of people have asked me what I make of this piece from James Bamford, pitching the case against Maria Butina as a grave injustice, just after Paul Erickson (who may be the real intended beneficiary of this piece) was charged in the first of what is likely to be two indictments, and as the government extends her cooperation by two weeks.

There are parts that are worthwhile — such as his argument that because Butina didn’t return a bragging email from JD Gordon, it suggests she wasn’t trying to recruit him.

There are other parts I find weak.

Bamford oversells the degree to which the press sustained the serial honeypot angle — after all, some of us were debunking that claim back in September, when he appears to have been silent — without mentioning the fact that Butina first started proffering cooperation with prosecutors, presumably against Paul Erickson and George O’Neill, on September 26. The word “visa” doesn’t appear in the article’s discussion of Butina’s status as a grad student, leaving unrebutted the government’s claim that Butina chose to come to the US as a student because it provided travel privileges that served her influence operation. Bamford (who hasn’t covered the Mueller investigation) grossly overstates the significance of Mueller’s choice not to integrate Butina’s case into his own investigation. He also falsely treats all counterintelligence investigations into Russia as one ongoing investigation (see this post for my ongoing complaints about virtually everyone doing the same). He suggests that Butina will need to be traded for Paul Nicholas Whelan, when the government has already said she’ll be deported once she serves her sentence (which will likely be time served). He quotes Putin’s interest in Butina’s case, without noting that Russia has only shown the interest they showed in her in one other defendant, Yevgeniy Nikulin. And those are just a few of the details with which I take issue.

But these passages, in particular, strike me as problematic.

Since August 17, Butina has been housed at the Alexandria Detention Center, the same fortresslike building that holds Donald Trump’s former campaign manager, Paul Manafort. On November 10, she spent her 30th birthday in solitary confinement, in cell 2F02, a seven-by-ten-foot room with a steel door, cement bed, and two narrow windows, each three inches wide. She has been allowed outside for a total of 45 minutes. On December 13, Butina pleaded guilty to conspiracy to act as an unregistered agent of the Russian Federation. She faces a possible five-year sentence in federal prison.

[snip]

On November 23, 2018, Butina went to sleep on a blue mat atop the gray cement bed in her cell, her 81st day in solitary confinement. Hours later, in the middle of the night, she was awakened and marched to a new cell, 2E05, this one with a solid steel door and no food slot, preventing even the slightest communication. No reason was given, but her case had reached a critical point.

That’s true not just for the way Bamford obscures the timeline here — suggesting she was always in solitary — but because by obscuring that timeline, Bamford serves to hide that it was Bamford’s own communications with and about Butina that got her thrown back into solitary.

Butina’s lawyers laid out her protective custody status in a filing on November 27.

In addition to general population prisoners, the Alexandria detention center houses federal detainees awaiting trial before this court in “administrative segregation,” more commonly known as solitary confinement. This form of restrictive housing is not a disciplinary measure, but is purportedly used by corrections personnel to isolate inmates for their own protection or the safe operation of the facility.

[snip]

Between her commitment at the Correctional Treatment Facility in Washington, DC and then Alexandria detention center, Ms. Butina has been isolated in solitary confinement for approximately 67 days straight. Despite a subsequent release into general population that came at the undersigned’s repeated requests, correctional staff reinstated her total isolation on November 21, 2018 although no infraction nor occurrence justified the same.

The timeline they lay out makes it clear Butina was in protective custody from July 15 to around September 21, but then placed in the general population. The timeline is absolutely consistent with Butina agreeing to cooperate in order to get placed in general population (the motion to transport her was submitted September 21, so at the same time she was placed in the general population). The fact that the government uses solitary to coerce cooperation from prisoners deserves condemnation, and that definitely seems to have been at play here.

But even at a time she had active orders to be transported for cooperation (the court authorized a second request for transfer from late October through the time she pled guilty), Butina was placed back in solitary. The timeline her defense attorneys lay out, however, suggests that Bamford was incorrect in stating she was in solitary on her birthday on November 10. She wasn’t moved back to solitary until November 21.

On the afternoon of November 21, 2018, counsel received a never-before urgent phone call from a jailhouse counselor regarding Ms. Butina. The basis for that call was her return to solitary confinement. The undersigned called Chief Joseph Pankey and Captain Craig Davie in Alexandria in response. After conferring with them, however, it has become clear that the facility’s use of administrative segregation is a false pretext to mask an indefinite solitary confinement that is unjust and without cause.

Staff purported to base their decision to segregate on Ms. Butina referring a fellow inmate to her lawyers (that is, she gave her lawyers’ phone number to a fellow inmate), but staff did not find a disciplinary violation—major or minor. Chief Pankey and Captain Davie then resorted to the decision being “for her safety,” knowing that administrative segregation disallows an appeal internally.

As of the date of this filing, Ms. Butina has now been in solitary confinement for 22 hours a day for 6 consecutive days with no prospective release date. According to at least one deputy, the move to solitary confinement has also not been entered into the Alexandria detention center computer system, and Ms. Butina’s status is disclosed only by a piece of tape with handwriting attached to the guard stand.

And that’s important because of a detail that Bamford remains utterly silent about.

As laid out in a hearing transcript, around that time, the government recorded calls from Butina to “certain journalists” suggesting the journalist consult someone who had her lawyers’ first name.

DRISCOLL: The conflict raised by the government, I think the government does not think there’s been any violation of order by defense counsel, but due to circumstances regarding recorded calls that the government had of Ms. Butina and to certain journalists, the government raised the concern to us; and we wanted to raise it with the Court so that there would be no question when the plea is entered that the plea is knowing and voluntary, and we wanted to kind of preemptively, if necessary, get Ms. Butina separate counsel briefly to advise her on her rights, to make sure that she got her constitutional right to conflict-free advice.

[snip]

MR. KENERSON: The basic nature of the potential conflict is that this Court, I think, issued in an order back in September regarding Local Rule 57.7. The government has some jail calls from Ms. Butina in which she is talking to a reporter numerous times on those calls. She makes some references on those calls to individuals who could be — we don’t know that they’re defense counsel, but shares first name with defense counsel potentially acting as go-between at a certain point. That’s part one of the potential conflict. Part two is —

THE COURT: Wait. So, wait. Stop. Part one is a potential conflict. Do you see a conflict because you believe she’s acting at the behest of her attorneys or as a conduit for her attorneys to violate the Court’s order?

MR. KENERSON: It’s — someone viewing that in the light least favorable to defense counsel might be able to argue that this is some quantum of evidence that defense counsel possibly were engaged in assisting Ms. Butina in violating the Court’s order.

THE COURT: All right. But that goes to whether counsel, with the aid of his client, violated my — and I’ll use the colloquial term for it, my “gag order.” How does that go to — and maybe you’ll tell me; I cut you off. But how does that go to the voluntariness of her plea?

MR. KENERSON: So if there is an allegation that defense counsel assisting her somehow in violating the, again, to use the colloquial term the “gag order,” that would give defense counsel a reason to want to basically plead the case to avoid that potential violation from becoming public. And curry favor with the government.

Driscoll went on to explain why his client was talking to a journalist with whom she had a friendship that “predates all of this” in spite of her being subject to a gag order.

The circumstances, just so the Court’s aware, Ms. Butina has a friendship with a particular journalist that predates all of this. The journalist was working on a story about Ms. Butina prior to any of this coming up, prior to her Senate testimony, prior to her arrest, and had numerous on-the-record conversations with her prior to any of this happening. At the time the gag order was entered, I took the step of informing the journalist that, although he could continue to talk to Ms. Butina, he could not use any of their post gag-order conversations as the basis for any reporting, and the journalist has not, in any event, made any public statement or done any public reporting on the case to date.

Bamford’s own description of “a number of long lunches starting last March at a private club in downtown Washington, D.C.” make it clear he is the journalist in question.

Judge Chutkan was none too impressed with Driscoll’s advice.

THE COURT: Well, putting aside the questionable advisability of having your client talk to a reporter while she is pending trial and there’s a gag order present — and I understand you told the reporter that they couldn’t make any public statements, but as a former criminal defense attorney myself, I find that curious strategy.

Now, to be clear: Bamford never did publish anything on Butina during the period when the gag was in place (Chutkan lifted the gag on December 21). Even if Bamford had published something during that period, so long as Bamford did respect Driscoll’s advice that their ongoing conversations should be off the record, there was nothing Bamford could publish that would directly reflect her own statements.

And there’s very good reason to question whether the government threw Butina back into solitary because Bamford was reporting on her treatment. That is, it’s not outside the realm of our criminal justice system that Butina was placed back in solitary because a reporter had been tracking her case since before the investigation became public.

Instead of laying out the case for that, however, Bamford instead hides his own role in the process.

To be honest, I think the story is better understood as one about Paul Erickson and not Maria Butina. This story won’t help her at sentencing — that’s going to be based on her cooperation, not what a journalist who has already antagonized the government says about her. But it may help to spin Erickson and George O’Neill’s interest, as well as that of the NRA.

The public record certainly sustains the case that the government used solitary to induce Butina to cooperate — presumably to cooperate against Erickson and O’Neill. That certainly merits attention.

But then the government also used solitary to cut off Butina’s communications with Bamford himself. If it’s this story the government was retaliating against, Bamford should say that, rather than obscuring it.

This is a story about America’s reprehensible use of solitary confinement. But it doesn’t explain a key part of that process here. Given that the story seems to most benefit Erickson, I find that silence remarkable.

Mike Flynn’s Flip: You Don’t Need Your Cooperator to Testify If the Conspiracy Was All Conducted over Email

Perhaps the most remarkable language in the Bijan Kian indictment appears in both the conspiracy 18 USC 371 and the 18 USC 951 foreign agent counts. In both, the indictment alleges that Kian (referred to by his legal name Rafiekian here) and Kamil Ekim Alptekin both acted, themselves, and caused others to act as unregistered foreign agents.

To knowingly act and cause others to act in the United States as an agent of a foreign government without prior notification to the Attorney General, in violation of 18 U.S.C. § 951;

[snip]

From approximately July 2016 through approximately March 2017, in the Eastern District of Virginia and elsewhere, the defendants, BIJAN RAFIEKIAN, a/k/a “Bijan Kian” and KAMIL EK.IM ALPTEKIN, knowingly acted and caused others to act in the United States as an agent of a foreign government, that is, the Government of Turkey, without prior notification to the Attorney General, as required by law. [my emphasis]

While not explicitly stated, the reference to Mike Flynn throughout the indictment as Person A — the only unindicted co-conspirator so identified — makes it clear that the government believes that’s what Flynn was doing, acting as an agent of Turkey. And the timeline for the conspiracy goes up to March 2017.

One of Trump’s top foreign policy advisors and, for almost a month, his National Security Advisor, was an agent of Turkey.

That fact, and the indictment as a whole, raises further questions about why Flynn got off so easy: a false statements charge for which he’ll do no time, unlike the 15 years his business partner is facing (though he won’t get that). And that outcome has raised still other questions about how Flynn could be useful to prosecutors, having admitted he’s a liar, yet having escaped all consequences for his actions. How can Flynn testify, commentators wonder, given that he was not charged for his role in the conspiracy?

Aside from quipping “flip early and often,” I think the Kian indictment provides clues — clues that I’ve long suspected have parallels in the Mueller investigation.

The indictment focuses just on the op-ed purportedly authored by Flynn that appeared in The Hill on election day, though we know Flynn’s company did more than that for Turkey. By focusing on the op-ed, DOJ can trace what happened with language Kian used to describe Fethullah Gulen. It was used in early August, before the conspirators started hiding the role of Turkey in the project.

On or about August 4, 2016, RAFIEKIAN sent an email with the subject “Truth” to ALPTEKIN and Person A stressing the need to begin work on the Truth Campaign. Referring to Iran’s Ayatollah Khomeini, RAFIEKIAN said:

Let me give you a real life experience: 1978: A soft spoken cleric sitting under an apple tree in Neauphle-le-Chateau in France looked so harmless. Spoke of equality and spirituality, declared that if he were to gain power, he would go to a religious shrine and will not get into politics and governance. Sound familiar? Well, the world neglected to take the layers off the ink blot in 1978. One year later, from the place under the apple tree, The soft spoken spiritual man led the Islamic Revolution in Iran ….

The indictment then shows how the apple language appears in talking points for a key September meeting with Turkish officials.

On or about September 18, 2016, in preparation for the meeting with the Turkish officials, RAFIEKIAN sent ALPTEKIN a document entitled “Background and Talking Points,” which contained approximately twenty talking points for the meeting, all of which concerned the Turkish citizen, the Turkish citizen’s movement, or the Turkish citizen’s charter schools in the United States.

RAFIEKIAN’s “Background and Talking Points” contained the same “apple tree” comparison of Khomeini and the Turkish citizen that RAFIEKIAN had used in his email to ALPTEKIN (paragraph 13) when the project was still called the “Truth campaign” and in the “playbook” (paragraph 23) when RAFIEKIAN referred to the Turkish citizen as “X.”

And then the same language shows up in both a draft of the op-ed Kian wrote for Flynn to slap his name onto, and in the op-ed as it appeared in The Hill.

The apple language serves as the marker showing the continuity between the project originally explicitly backed by Turkey, at the time ironically named “Truth,” and the project after it got renamed “Confidence” as part of an effort to hide Turkey’s role by using Alptekin’s company as a cut-out.

And virtually every step of that process was conducted over email or other communication methods that the FBI could easily collect.

Flynn’s genius co-conspirators — at least in this particular foreign agent conspiracy — even sent emails that noted that they were hiding details in other written documents.

ALPTEK.IN further told RAFIEK.IAN, ”Needles [sic] to tell you but he asked me not to read in anyone else for the time being and keep this confidential.”

[snip]

RAFIEKIAN promised to send ALPTEKIN a contract, but noted that it “will not entail operational details for obvious reasons.”

DEAR FBI, they might as well have written, LOOK HERE FOR THE SEKRITZ.

At least as laid out, virtually all the evidence needed to convict the co-conspirators is written down. As noted, much of this was in emails (the word appears 33 times in the indictment). There were two conversations via Skype, a Section 702 provider, as well as one text sent via Skype. Flynn sent one text memorializing a meeting with Alptekin referencing one of the Turkish Ministers who were their real clients. There were multiple financial wires.

The only overt acts described in the indictment that could not have been captured by the FBI or collected after the fact were one meeting, some lobbying activities, and some weekly phone calls.

On or about the evening of September 19, 2016, Person A, RAFIEKIAN, ALPTEKIN, and other members of the project met in New York City with Turkish Minister #1 and Turkish Minister #2. The conversation centered on the Turkish citizen and the Turkish government’s efforts to convince the U.S. government to extradite the Turkish citizen to Turkey.

[snip]

In or about September and October 2016, RAFIEK.IAN and others involved in the project visited with and lobbied a member of Congress, a Congressional staffer, and a state government official in an attempt to depict the Turkish citizen as a threat who should be returned to Turkey and to persuade them to hold Congressional hearings concerning the Turkish citizen.

[snip]

On approximately a weekly basis during the project, RAFIEKIAN, Person A, and other Company A team members had telephone conference calls with ALPTEKIN to update ALPTEKIN on the progress of the project. [my emphasis]

All of those, however, also included other team members, members who didn’t lie to the government and aren’t being charged as co-conspirators.

That leaves one other key piece of evidence the government might have needed help to collect: communications with the lawyers who filed the false FARA filings.

From approximately January 2017 through approximately March 2017, outside attorneys for Company A gathered information to determine whether Company A or any of its employees had an obligation to register under FARA based upon Company A’s work on “Operation Confidence.” During this process, RAFIEK.IAN and ALPTEKIN knowingly provided false information to Company A’s attorneys in an effort to hide from the attorneys – and ultimately from the FARA Unit – the involvement of Turkish government officials in the project.

While Mueller was able to get a crime-fraud exception to get communications from the lawyer who did Paul Manafort’s false FARA filings, once Flynn flipped he could have voluntarily waived privilege to make those documents available to the government. Indeed, I wonder if that’s what’s hidden in a key redaction in Flynn’s cooperation addendum.

In other words, there is a non-liar witness (or document) for every overt act in this indictment. They don’t need Flynn to sit on the witness stand and describe the conspiracy, as laid out. They can just have his service providers provide authentication of all the communications and have his former colleagues testify, along with his lawyers, now freed of any privilege obligation.

Critically, for a national security investigation like this one (and, I assume, for the Russian one as well), I’m sure Flynn described at more length everything else that went on. But the government doesn’t need that information to prosecute these crimes (except insofar as his cooperation would have made it very easy to get warrants for the information Flynn didn’t hand over himself — and his own sentencing memo makes it clear he did hand over much of it). It needs that information for counterintelligence purposes.

And that’s why they were able to move towards sentencing without his testimony in court: because he may not need to give testimony in court. The government has secured other, more reliable witnesses for that testimony.

As I said, I’ve long suspected this was true of Flynn’s cooperation on the Mueller investigation, as well. When the government, in describing his cooperation, said his decision to flip “likely affected the decisions of related firsthand witnesses to be forthcoming with the SCO and cooperate” (which is followed by the last, entirely redacted, sentence in the memo), they are probably describing how by pleading guilty to lying himself, he led to their ability to get better, more reliable witnesses for much of the relevant testimony.

Update: Took out a reference to NSA; Alptekin may be a green card holder; if he is, he couldn’t be a legal 702 target.

DOJ Unveils Indictment against Mike Flynn’s Business Partner on Eve of His Sentencing

In its brief arguing that Mike Flynn’s lies were significant and willful on Friday, the government reminded that Flynn lied not just about discussing sanctions with Sergei Kislyak, but also about his FARA registration.

Moreover, as the defendant has admitted, weeks after the January 24 interview, he made materially false statements in filings he provided to another branch of the Department of Justice pursuant to the Foreign Agents Registration Act (“FARA”). See Statement of Offense at ¶ 5, United States v. Flynn, No. 17-cr-232 (D.D.C. Dec. 1, 2017) (Doc. 4). The defendant made those false statements while represented by counsel and after receiving an explicit warning that providing false information was a federal offense. See, e.g., FARA Registration No. 6406, Flynn Intel Group (March 7, 2017), available at https://efile.fara.gov/docs/6406-Registration-Statement-20170307-1.pdf. The defendant was equally responsible for telling the truth to both Department of Justice entities, and under both circumstances he chose to make false statements.

It just unveiled the indictment (which was actually filed on December 12) that probably came of his substantial cooperation in a separate criminal investigation, against his business partner Bijan Kian. Kian got charged — along with Kamil Emil Alptekin — not just with FARA violations but with 18 USC 951, serving as an agent of a foreign government.

I’ll comment more on the substance of the indictment in a follow-up post. But I’m as interested in the timing, for two reasons.

First, in a comment in the addendum describing Flynn’s cooperation, the government had said,

While this addendum seeks to provide a comprehensive description of the benefit the government has thus far obtained from the defendant’s substantial assistance, some of that benefit may not be fully realized at this time because the investigations in which he has provided assistance are ongoing.

I took that to be a comment about indictments. Some districts premise a 5K letter like Flynn received on providing enough testimony to indictment someone else. The government was just a week short of indicting Kian when they submitted that filing.

The unsealing of this indictment (Kian’s arraignment was actually scheduled on the 14th) comes even as Turkey is claiming that Trump told Erdogan at the G-20 that his Administration is working on extraditing Gulen, the topic on which Kian was secretly acting in Turkey’s interest.

In an interview at the Doha Forum on Sunday, Cavusoglu asserted that US President Donald Trump told Turkish President Recep Tayyip Erdogan at the G20 summit in Argentina this month that the US was “working on” the extradition of [Fethullah] Gulen.

The exiled cleric, 77, has been living in a gated compound in eastern Pennsylvania after leaving Turkey in 1999. Erdogan has held Gulen responsible for the deadly attempted coup against him in 2016 — a charge Gulen has denied.

However, there’s no sign from Washington that the US is moving towards extraditing Gulen. Last month, the State Department said the US had received multiple requests from the Turkish government and continued to evaluate materials presented.

Cavusoglu also claimed the FBI had evidence that Gulen’s organization, known as FETO, “had been violating US laws, including tax fraud, visa fraud and also some other illegal activities.”

The circumstances of Trump’s meeting with Erdogan got some attention, as the White House canceled a formal meeting with the Turkish president, but did have a less formal, 50 minute meeting.  This indictment will presumably make it harder for Trump to fulfill that promise, if indeed he made it.

In any case, by unsealing this indictment today, it will make it a lot harder for Flynn’s lawyers to argue in his sentencing hearing tomorrow that his lies weren’t serious. By flipping, Flynn avoided being charged as a Foreign Agent.

The Geography of Maria Butina’s Cooperation

The government had another embarrassing docket fail Friday, like the cut-and-paste release that disclosed charges filed in EDVA against Julian Assange.

Yesterday, a motion for permission to transport Maria Butina was briefly published to the docket, then withdrawn, but not before reporters who get automatic docket updates got copies. And the details in the filing suggest that Butina’s cooperation may be more limited than Mueller watchers would like.

The docket fail may stem from complaints that the judge in Butina’s case, Tanya Chutkan, made back on December 6, about how many details of Butina’s imminent plea deal attorneys were trying to keep sealed.

THE COURT: Why? Why is the fact that — you know, Mr. Driscoll, I have to tell you, I’m a little perplexed. In this case, you’ve filed several motions for transportation of your client to the U.S. Attorney’s Office, and you asked that that information be placed under seal; and that was certainly appropriate, and the government joined in that request. And I placed those requests under seal because the possibility of a defendant’s cooperation is always something that is very sensitive.

Since Butina’s plea, those prior motions to transport her that Chutkan referenced in her complaint — one dated September 21 asking to move her for a September 26 interview but lasting through October 25, and one dated October 23 specifically authorizing transport on November 7 but lasting through December 6 — were unsealed. Presumably, that’s why Friday’s order got filed unsealed, as well.

The problem, per CNN’s report, is that the latest one reveals Butina may be transported to testify before a grand jury in DC.

Russian political conspirator Maria Butina is set to meet with federal prosecutors in Washington and Virginia over the next several weeks, according to a court filing that was posted and quickly removed from a federal docket Friday afternoon.

Butina pleaded guilty Thursday to one criminal count of acting as an illegal foreign agent in the United States.
US attorneys may want to interview Butina in their offices well into January, according to the filing. She may also be requested to appear at the grand jury in Washington, according to the filing, which is a request to a federal judge to allow the currently detained Russian to be transported by the FBI for cooperation interviews.

“The purpose of the transfer is to interview the Inmate concerning an ongoing federal investigation,” the filing says.

So in addition to providing details about Butina’s future travel (possibly even a date) that might pose a security risk or put her in physical danger, it includes grand jury information that is supposed to remain secret.

All the filings together, however, reveal something of more interest: Butina has been proffering information to the Feds, probably primarily against her boyfriend, Paul Erickson, since September 26.

She was submitting to interviews in this investigation at a time when Erickson was regularly visiting her in jail.

Despite the ongoing investigations and his reported ties to Butina’s activities, Erickson frequently visits her in jail, two individuals with knowledge of the meetings told The Daily Beast. Erickson apparently expressed frustration to friends over the fact that jail staff forced him to sign into the main visitor log, fearing the media would find out.

You know how everyone hopes that a cooperating witness might wear a wire? In Butina’s case that could, potentially, have happened during her meetings with Erickson (though in the context of a jail visit, would hardly be necessary to capture the couple’s conversations). The period of her cooperation also sort of matches the time when she got moved from protective custody into the general population in Alexandria (67 days after her arrest would be September 20); she was subsequently put back in solitary, possibly because (as was discussed at the December 6 hearing) she had been communicating with the outside world via other detainees and at least one journalist.

While those revelations are of interest, what’s equally notable is the geography described, at least in the public filings. As noted, CNN says she’s cooperating on a federal investigation, singular, which is what the past motions said as well. And the locales to which she can be transported in the public filings — an interview room attached to the Alexandria jail, the DC US Attorney’s office, and a DC grand jury — don’t include Robert Mueller’s office, which is a different location in DC. There may be some involvement of the EDVA US Attorney’s Office (which might bode ill for the NRA, which is headquartered in that district). But thus far, there’s no sign that she’s being transported to cooperate with Mueller’s office.

That’s consistent with her plea, which only describes cooperation with the DC US Attorney’s office.

The plea deal is in no way definitive — after all, Mike Flynn’s plea said he’d cooperate “with this Office,” meaning SCO, but he has recently told us about cooperating with “other components of the Government” and the addendum to the government’s sentencing memo seems to reflect at least one criminal investigation outside of Mueller’s mandate (which is widely believed to involve Turkey).

But Butina has already been in custody almost as long as she’s likely to be sentenced to, meaning to do much more would entail holding her in jail to get her to cooperate for no benefit, something her lawyers presumably would be unwilling to countenance. So it may well be that she has told investigators about her boss (who, of course, retired suddenly not long ago) and her boyfriend. She may well even had gotten Erickson to incriminate himself in a venue where prosecutors easily collected it.

There’s no evidence, however, that she’s cooperating with Mueller or expected to.

A Day after Maria Butina Argues Influence Operations Shouldn’t Be Charged as Spying, Plea Negotiations Start

As a number of people reported, on Friday, the government and Maria Butina got the court to delay her case by two weeks so they can try to resolve it, suggesting they’re in plea negotiations.

In support of this motion, the parties state that they continue to engage, as they did prior to yesterday’s defense filing, in negotiations regarding a potential resolution of this matter and that those negotiations would be potentially hindered by simultaneously engaging in motions practice. The parties further agree that to make the best and most efficient use of the Court’s time and resources to decide any motions in the event those negotiations are unsuccessful, it would be prudent to continue the upcoming hearing and its accompanying motions schedule for approximately two weeks.

As part of that delay, Butina withdrew a motion submitted on Thursday without prejudice (meaning she can resubmit it if plea talks fail). The motion asked the court to declare 18 USC 951 (which is what the US government charges foreign spies with) unconstitutional as applied to influence operations.

The motion lays out a bunch of hypothetical cases with vague parallels to Butina’s to lay out the danger of using 951 to prosecute those conducting influence operations. Some are farcical, in which a thoughtful grandmother takes on the role that Aleksandr Torshin does in Butina’s operation.

An unregistered, lonely grandson from an unpopular, provincial country accepts the advice of his grandmother about how to make friends. She thoughtfully directs him to go to prayer groups and same-interest meetups to meet people with common interests. He violates section 951 if the grandmother is a foreign official, even though the grandmother provided such direction while visiting the United States on holiday.

A non-hypothetical comparison, however, is more apt, arguing convincingly that an Israeli influence tour might be prosecuted if Israelis were treated with the suspicion Russians currently are.

Consider recent events regarding Israeli soldiers touring cities across the United States for the 11th Israeli Soldiers Tour to speak at venues, including college campuses, to raise awareness of the realities of their service.10 Sponsored by StandWithUs, an Israel advocacy group funded and supported by hasbara organizations and the Israeli government, these soldiers travel the United States to conduct influence operations intended to pacify U.S. views, change foreign policy, and put a human face on the Israeli military. Is there any doubt that such unregistered agents could be charged under the same interpretation of section 951 used against Maria– for operating in the United States as “agents” of Israel when directed to go to U.S. schools and then brief their IDF11 military commanders on their reception in the United States? Is there any doubt that they wouldn’t be? The point is not that such activities are improper. They are not. However, they are precisely the kind of educational exchanges and necessary uninhibited marketplace of ideas that are sought and encouraged when foreign students and visitors like Maria are admitted to U.S. universities.

The motion ultimately argues that before using 951 against an influence operation the statute should have the kind of limits that exist in the FARA statute.

To resolve the constitutional problem presented by the statute’s broad application, this court should—at least as to political activities—narrow the sweep of section 951 so that it aligns more closely with the constitutional safeguards recognized by Congress in the Foreign Agent Registration Act (known as “FARA”).

Worse, as for cases involving ‘political activities,’ it allows the government to pursue harsher penalties with additional restraints on individual liberty, compare 18 U.S.C. § 951 (10 years imprisonment) with 22 U.S.C. § 618 (5 years imprisonment), without enduring the additional cost of satisfying higher burdens of proof, see 22 U.S.C. §§ 611(o) and 618(a) (authorizing prosecution only for “willful” violations and specific kinds of “political activities”), thus circumventing the inherent check on government overreaching that the Fifth Amendment Due Process Clause was designed to instill. If left unchecked, federal investigators and prosecutors will have strong incentives to prosecute political activity cases under section 951 instead of FARA, so they can reap the law-enforcement benefits of section 951’s penalties without paying the price of higher burdens of proof.

To avoid that distortion, this court should consider the catch-all, sweeping application of section 951 when applied to political activities, in comparison with the statutory restraints of FARA as applied to the same, in assessing whether section 951 exposes Maria to the risk of arbitrary enforcement. Such an approach would provide an accurate answer to the doctrinal question at hand: whether section 951 is constitutionally deficient (and/or in need of a limiting construction) because it “confers on police a virtually unrestrained power to arrest and charge persons with a violation” thereby permitting “policemen, prosecutors, and juries to pursue their personal predilections.” Kolender, 461 U.S. at 358.

It’s a fair argument, at least in this case. Back in August, I did two posts pointing out there was little difference between what Paul Manafort was accused of in his DC case and Maria Butina was accused of.

It’s unclear whether the plea negotiations are a response to this motion or not. Some of the evidence against Butina described thus far suggests her operation has the approval of Putin himself (though the Israeli StandWithUs tour is the kind of thing Bibi Netanyahu likely loves). But other evidence — such as a claim she’s coordinating with FSB (which, after all, is the closest analogue to the FBI) appears sketchy. So while it’s possible that Butina is a privately funded spy running an influence operation on behalf of the Russian government, it’s also true that to prove that, the government may have to share more classified information than they care to. And while I’m skeptical the constitutional challenge to 951 would work (in part because courts are loathe to tamper with national security law, in part because the claim that Butina chose to come to the US as a student does seem to have been chosen with the influence operation in mind), the government probably wants to retain their ability to use it with clearcut spies engaging in influence operations.

So I could imagine the government might be willing to settle this with either a FARA plea (which would further reinforce the FARA regime Mueller has introduced) or a visa fraud charge, particularly if Butina were willing to implicate Paul Erickson and other Americans who had helped her efforts.

Reality Gets A Harsh Sentence

With Update Below!

As many of you may already know, this morning was the sentencing for Reality Winner. She was sentenced to 63 months of incarceration and three years of supervised release upon completion of her term. The supervised release term is rather standard. She will be housed at the Federal Medical Center, Carswell in Fort Worth, Texas. The stated reason was because she is bulimic, but it seems more like a nod to her, and her family, who requested a Texas posting so they would be near. There is no pecuniary fine. I have not seen the official sentencing order yet, but have little to no doubt she will be credited with the time served in pre-trial detention since her arrest on June 3, 2017; i.e. nearly 15 months. So, assuming that, she should be released in about 4 years.

Okay, that is the hard nuts and bolts of Ms. Winner’s sentencing. If you want some more background, please see our old friend Kevin Gosztola at Shadowproof, who has been covering all the Reality Winner court appearances.

All that said, let me address a couple of things. First, the sentence was not unexpected, indeed it was stipulated to in the plea agreement Ms. Winner both signed and allocuted to in open court. While the court technically “could” have deviated downward, there was little to no chance it would given the plea language. Anybody shocked by today’s sentencing has not been paying attention.

Secondly, the government did not “block” Winner’s defenses. I had a discussion on this point with a good friend, Will Bunch, who has admirably written extensively on, and in favor of, Reality. Sadly, the law here is what it is, and not what Will and I would like it to be. Winner’s attorneys filed every motion they could, both to try to win and to protect the record. But those motions were never going to work, they never do, and they did not here.

Jeffrey Sterling also tried all of that. It did not work then, for him, either. Sterling got 42 months in prison. It is hard to compare disparate cases, but in the long run, I personally have a hard time seeing why Reality Winner was worse or more damaging than Jeff Sterling, and yet she got 1.5 times as much incarceration as Sterling. Different DOJ’s, different times and the Trump Administration was already on the record as head hunting for leakers when Winner fell into their lap. So, I guess it is not shocking. They were looking to make an example and there she was.

Now to the after show doings. The United States Attorney for the Southern District of Florida, Bobby L. Christine (never trust a man with two first names), cravenly issued a pompous press release on the sentencing. This is just a taste of the Christine hyperbolic:

The document Winner compromised did, in fact, contain TOP SECRET information about the sources and methods used to acquire the intelligence described in the report. That means it revealed how U.S. Intelligence Agencies obtained information. U.S. Government subject matter experts have determined that Winner’s willful, purposeful disclosure caused exceptionally grave damage to U.S. national security. That harm included, but was not limited to, impairing the ability of the United States to acquire foreign intelligence information similar to the information the defendant disclosed. This was, by no means, a victimless crime.

What’s more, Winner’s exceptionally damaging disclosure was not a spontaneous, unplanned event, but was the calculated culmination of a series of acts. She researched whether it was possible to insert a thumb drive into a Top Secret computer without being detected, and then inserted a thumb drive, WHICH THE GOVERNMENT NEVER RECOVERED, into a Top Secret computer. She researched job opportunities that would provide her access to classified information. At the same time, she searched for information about anti-secrecy organizations, and she celebrated claimed compromises in U.S. classified information.

Note the Trump like raging capital letters? Ooof. It was an unnecessary and prickish public release by somebody that had won and driven the vanquished into the ground. And while Bobby L. Christine took all the glory, he did not do diddly squat himself, the matter was handled by a team of career AUSA’s that he did not even have the common courtesy to mention. Very Trump like.

Okay, so why did Ms. Winner end up here? There are a lot of reasons. First off, while Winner would have pretty clearly been discovered anyway, she disclosed her material to The Intercept, which was far from the only cause of her discovery, but did her no favors either. And the Government, especially the NSA, hates, with a capital H, The Intercept. But again, Reality’s discovery was inevitable even despite that, but it is a factor.

Secondly, the Government has thought all along that she had more material than what The Intercept and Matt Cole received and published. In its sentencing memorandum, the government addressed other areas of concern as to Winner including: her insertion of flash drive into a TS/SCI NSA computer at Fort Meade; her Internet history (which other filings make clear included details on Anonymous, Vault 7, Hal Martin, Assange, and Snowden); her download of Tor; her seeking out employment at Pluribus; and her screenshots of secure drop information.

These bases were generally also why she was detained without bail. That does not make it right, and it is, and remains true, that there is far too much secrecy and cheap classification in the face of the American public’s interest. This is a textbook example of just that. But Reality Winner tried to be a whistleblower and fell into the lurch where there are no such protections for the acts she did. She paid an overly, and draconian, price for what she did because the Trump Administration needed a head on a pike. They got hers. And this morning’s sentencing was the ugly culmination of that.

UPDATE: alright, Trevor Timm at The Intercept, has posted an interesting coda to the Reality Winner goings on today.

WHEN THE INTERCEPT first published the top-secret document, reporters and editors went to the government — as they do every time The Intercept publishes classified documents — to hear the NSA’s views about any information that might truly harm national security. After listening to the agency’s arguments, and out of an abundance of caution, The Intercept redacted a few pieces of information from the document before publishing it.

A key phrase that the government wanted withheld was the specific name of the Russian unit identified in the document. The government was particularly insistent on that point. Since it wasn’t vital to the story that the unit’s name be revealed, nor was it clear — at least at the time — that revealing the unit’s name was in the public interest, The Intercept agreed to withhold it.

But in the indictment of alleged Russian military intelligence operatives that Mueller’s office released last month, the Justice Department revealed the same name: GRU unit 74455. (The unit is also known as the Main Center for Special Technology or GTsST.) The indictment went on to reveal information almost identical to that contained in the document Winner admits to disclosing:

In or around June 2016, KOVALEV and his co-conspirators researched domains used by U.S. state boards of elections, secretaries of state, and other election-related entities for website vulnerabilities. KOVALEV and his co-conspirators also searched for state political party email addresses, including filtered queries for email addresses listed on state Republican Party websites.

In or around July 2016, KOVALEV and his co-conspirators hacked the website of a state board of elections (“SBOE 1”) and stole information related to approximately 500,000 voters, including names, addresses, partial social security numbers, dates of birth, and driver’s license numbers

In or around August 2016, KOVALEV and his co-conspirators hacked into the computers of a U.S. vendor (“Vendor 1”) that supplied software used to verify voter registration information for the 2016 U.S. elections. KOVALEV and his co-conspirators used some of the same infrastructure to hack into Vendor 1 that they had used to hack into SBOE 1.

The Justice Department is trying to have it both ways: It’s OK for Mueller to publicly release this information in an attempt to prosecute alleged Russian hackers because it’s in the public interest. But at the exact same time, the government is also claiming that a document including very similar information causes grave harm to national security when disclosed to the public by someone else.

There is a lot more there at Trevor’s post. Without doubling the size of this post, I would like to second the expert opinions submitted by Bill Leonard that Trevor Timm describes and have been long a staple here. There literally is no greater expert on classification than Bill Leonard. That said, it is like the discussion in the main original post. The fight is against archaic, authoritarian and totalitarian laws and legal precedent. Until those are changed, there is reality, and then there is the regrettable case of Reality Winner.

Hybrid or Ambiguous, Asymmetric Warfare is Here to Stay

[As always, check the byline — this is Rayne with another minority report.]

After the hacking of the U.S. Office of Personnel Management, I wrote in early 2013 about asymmetric warfare. At the time I was puzzled by Americans’ surprise at such an extensive breach of a government asset by China.

We were warned in 1999 by the PRC in a white paper, Unrestricted Warfare, written by two Chinese military officers. They told us what they perceived about U.S.’ defense stance and where they were likely to press given their perception of our weaknesses and strengths.

Our own military processed this warning; it was incorporated into a number of military white papers. The U.S. intelligence community likewise digested the same white paper and military assessments of the same.

And yet the U.S. was not ready for an asymmetric attack.

More disturbingly, we were warned in 2013 — possibly earlier — that Russia was adopting asymmetric warfare. Valery Gerasimov, Chief of the General Staff of the Armed Forces of Russia, wrote a paper discussing the application of “hybrid warfare” or “ambiguous warfare,” partially exemplified in Russia’s 2014 annexation of Crimea.

Our Defense Department analyzed Gerasimov’s Doctrine, as it is now known. The CNA, a nonprofit research and analysis organization working for DOD, published a paper defining “ambiguous warfare” (pdf):

“Ambiguous warfare” is a term that has no proper definition and has been used within U.S. government circles since at least the 1980s. Generally speaking, the term applies in situations in which a state or non-state belligerent actor deploys troops and proxies in a deceptive and confusing manner—with the intent of achieving political and military effects while obscuring the belligerent’s direct participation. Russia’s actions in Crimea and Ukraine clearly align with this concept, though numerous participants pointed out that it is not a new concept for Russia.

CNA even applied a term used by the U.S. to describe Russia’s military action in Crimea — and yet the U.S. was not ready for an asymmetric attack.

The earlier paper PRC paper, Unrestricted Warfare, elaborated,

War in the age of technological integration and globalization has eliminated the right of weapons to label war and, with regard to the new starting point, has realigned the relationship of weapons to war, while the appearance of weapons of new concepts, and particularly new concepts of weapons, has gradually blurred the face of war. Does a single “hacker” attack count as a hostile act or not? Can using financial instruments to destroy a country’s economy be seen as a battle? Did CNN’s broadcast of an exposed corpse of a U.S. soldier in the streets of Mogadishu shake the determination of the Americans to act as the world’s policeman, thereby altering the world’s strategic situation? And should an assessment of wartime actions look at the means or the results? Obviously, proceeding with the traditional definition of war in mind, there is no longer any way to answer the above questions. When we suddenly realize that all these non-war actions may be the new factors constituting future warfare, we have to come up with a new name for this new form of war: Warfare which transcends all boundaries and limits, in short: unrestricted warfare.

If this name becomes established, this kind of war means that all means will be in readiness, that information will be omnipresent, and the battlefield will be everywhere. It means that all weapons and technology can be superimposed at will, it means that all the boundaries lying between the two worlds of war and non-war, of military and non-military, will be totally destroyed, and it also means that many of the current principles of combat will be modified, and even that the rules of war may need to be rewritten.

In spite of this warning, the U.S. has not been adequately prepared for asymmetric warfare.

More importantly, the U.S. has not grasped what is meant that “all the boundaries lying between the worlds of war and non-war” no longer exist.

We are in a permanent state of non-war warfare.

And we were warned.

If the CNA’s paper is any indication, the U.S. has been blinded by the lens of traditional warfare. This is an unintended conclusion we can take away from this paper: we are smack in the middle of a debris field in which our entire democratic system has been rattled hard and our president and his dominant political party in thrall to at least one other country’s leader, without a single traditional combat weapon aimed and fired at our military. Yet the paper on “Russia’s ‘Ambiguous Warfare'” looked at the possible effect such war would have on traditional defense, making only the barest effort to include information warfare. The shoot-down over Ukraine of Malaysian Airline flight MH-17 carrying EU citizens offers an example — there is little mention in this paper of Russian and separatists’ efforts to mask the source of the shooting using information warfare, thereby managing to avoid an official invocation of NATO Article 5.

Perhaps the scale of our traditional defense spending and the commitment to sustaining this spending driven by both states’ economies and by corporatocracy locked us into an unwieldy and obstructive mindset unable to respond quickly to new threats. But PRC warned us in 1999 — we have no excuses save for a lack of imagination at national scale, combined with a detrimental perception of American exceptionalism.

If there is something we can still use in this permanent state of non-war warfare, it is one of the oldest lessons of warfare, transcending place, culture, and tradition:

All warfare is based on deception. … Keep him under strain and wear him down. When he is united, divide him. Attack where he is unprepared; sally out when he does not expect you. … 

— Sun Tzu, The Art of War

What were we not expecting? For what were we not prepared? What form may the next ambiguous attack assume, and are we ready to defend ourselves?

More importantly, what does an effective, ambiguous offense look like?

Why Call Alice Donovan a Troll?

The WaPo and CounterPunch have the story of Alice Donovan, a pseudonymous persona the FBI suspected (it’s not clear starting when) of being part of a Russian influence operation. The WaPo makes it clear sources told them about the investigation (though without clearly revealing when FBI identified Donovan or when they learned about the investigation) and leaked the report behind this story (or perhaps it is all one report).

The FBI was tracking Donovan as part of a months-long counterintelligence operation code-named “NorthernNight.” Internal bureau reports described her as a pseudonymous foot soldier in an army of Kremlin-led trolls seeking to undermine America’s democratic institutions.

[snip]

The events surrounding the FBI’s NorthernNight investigation follow a pattern that repeated for years as the Russian threat was building: U.S. intelligence and law enforcement agencies saw some warning signs of Russian meddling in Europe and later in the United States but never fully grasped the breadth of the Kremlin’s ambitions.

CP first learned about it when Adam Entous called about the leaked intelligence report on her.

We received a call on Thursday morning, November 30, from Adam Entous, a national security reporter at the Washington Post. Entous said that he had a weird question to ask about one of our contributors. What did we know about Alice Donovan? It was indeed an odd question. The name was only faintly familiar. Entous said that he was asking because he’d been leaked an FBI document alleging that “Alice Donovan” was a fictitious identity with some relationship to Russia. He described the FBI document as stating that “Donovan” began pitching stories to websites in early 2016. The document cites an article titled “Cyberwarfare: Challenge of Tomorrow.”

And CP reveals they first came to believe that Donovan was fake (and not just a serial plagiarist) when a NYT story listed Donovan’s account among those that Facebook had shut down as fake.

This long story focused on dozens of phony Facebook accounts which the Times claims pushed pro-Russian messages during the election. Buried in the 28th paragraph of the story was the name “Alice Donovan.” Donovan’s Facebook page, the Times said, “pointed to documents from Mr. Soros’s Open Society Foundations that she said showed its pro-American tilt and — in rather formal language for Facebook — describe eventual means and plans of supporting opposition movements, groups or individuals in various countries.’” According to the Times, Facebook had deactivated the Donovan account after it failed a verification protocol.

CP ends by noting that for the entirety of the period when FBI was investigating this pseudonymous persona, they never informed CP.

If the FBI was so worried about the risks posed by Alice Donovan’s false persona, they could have tipped off some of the media outlets she was corresponding with. But in this case they refrained for nearly two years. Perhaps they concluded that Donovan was the hapless and ineffectual persona she appears to be. More likely, they wanted to continue tracking her. But they couldn’t do that without also snooping on American journalists and that represents an icy intrusion on the First Amendment. For a free press to function, journalists need to be free to communicate with whomever they want, without fear that their exchanges are being monitored by federal agencies. A free press needs to be free to make mistakes and learn from them. We did.

It’s an interesting example — and given my prior focus on Facebook’s intelligence apparatus (one reiterated by the revelation that Facebook has been taking down NK infrastructure of its own accord) — one that raises questions about whether FBI identified this persona or FB did.

But I’m wondering why both WaPo and CP are calling the Donovan persona a troll. While it sounds like Donovan’s election related interventions were trollish about Hillary, some of what she published at CP and other outlets clearly supported Russian policy objectives (that CP might legitimately agree with) or — as CP notes — mirrored mainstream reporting on Clinton’s emails.

Donovan served not just to poison debate, as trolls do.

So I’m wondering why people are using that term. I’m wondering, in part, why we should distinguish Donovan’s authorship (or plagiarism) of articles from leaks from foreign intelligence services, which news articles have long relied on, whether Israeli, Saudi, or Russian sources (remember, for example, how presumed Yemeni or Saudi sources have repeatedly revealed details of US or UK double agents). A number of people in DC have laughed with me about the way that Rinat Akhmetshin — a central figure in the June 9, 2016 Trump Tower meeting and as such suspected of doing Russian intelligence bidding — has long regaled mainstream journalists as a source. And I’ve suggested that Scott Balber — and American lawyer working for a Russian oligarch — may be fostering a cover story for the same meeting.

So why is one kind of intelligence disinformation called journalism and another called trolling?

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