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In Attempt to Learn How Much Mueller Knows about Roger Stone’s “Collusion,” Devin Nunes Blames FBI for Stone and Michael Caputo’s Perjury to HPSCI

On Thursday, in the wake of the release of the DOJ IG Report showing that Jim Comey hurt Hillary Clinton with his intervention after the end of the email server investigation, the Gang of Eight met with Rod Rosenstein and Christopher Wray to discuss the House Intelligence Committee demand for documents allegedly investigating FISA abuse.

On Thursday night, Rudy Giuliani (whose receipt of leaks from the NY FBI field office received no attention in the IG Report) appeared on Sean Hannity and argued that the Mueller investigation (which removed Strzok once his inappropriate texts were revealed) should be suspended immediately and instead investigated by those very same NY FBI agents.

Every FBI agent should demand that that man be fired and tomorrow Mueller should suspend his investigation and he should go see Rod Rosenstein who created him and the Deputy Attorney General and Attorney General Sessions who should now step up big time to save his Department should suspend that investigation.  Throw out all the people is that have been involved in the phony Trump investigation and bring in honest FBI agents from the New York office who I can trust implicitly and they should turn their attention to Comey, Strzok, Page.

[snip]

Who are we providing them to? People who have already concluded to frame Donald Trump, agents who started a phony Russia investigation. That’s the whole core of this. That’s why the investigation should be suspended. And I am talking for myself now, not the president. But I believe he would agree with this. A very serious investigation has to be done of the FBI agents at the very top by FBI agents who are honest in order to prosecute them…

Rosenstein and Jeff Sessions have a chance to redeem themselves and that chance comes about tomorrow. It doesn’t go beyond tomorrow. Tomorrow, Mueller should be suspended and honest people should be brought in, impartial people to investigate these people like Peter Strzok. Strzok should be in jail by the end of next week.

On Friday, in the wake of the Thursday Gang of Eight meeting, Paul Ryan, Devin Nunes, Trey Gowdy, and Bob Goodlatte had a meeting with Wray and Rosenstein to demand documents on their investigation into alleged FISA abuse.

Also on Friday, Roger Stone appeared on Laura Ingraham’s show to comment on the IG Report. He made no comment about the story he was seeding with the WaPo, spinning that the Russian he reached out to learn about dirt on Hillary Clinton, whom he didn’t mention when the House Intelligence Committee asked him about contacts with Russians, was actually an FBI spy. In its story this morning, the WaPo didn’t point out all the reasons why it’s almost certain that “Henry Greenberg” was not operating under the control of the FBI; as a result, the WaPo gave the informant story credibility it shouldn’t have.

Today, Devin Nunes went on Fox to report on the Friday meeting. In three segments (one, two, three), Maria Bartiromo treated the Friday meeting as breaking news. Nunes said that their subpoenas “will be complied with” or the House would take other measures. When Bartiromo asked Nunes specifically what he was looking for, he didn’t respond. Instead, he posed the quest this way.

How did you use our nation’s counterintelligence capabilities. These are capabilities used to track terrorists and other bad guys around the globe. How did you weaponize that against a political campaign, against the Trump campaign, where ultimately it ended up in Carter Page having a FISA warrant put against him which allowed the government to go in and grab all of his emails and phone calls. So that’s primarily what we’ve been investigating for many many months. I will tell you that Chairman Gowdy was very very clear with the Department of Justice and FBI and said that if there was any vectoring of any informants or spies or whatever you want to call them into the Trump campaign before the investigation began, we better know about it by Sunday, meaning today. He was very very clear about that. And as you probably know there’s breaking news this morning that now you have a couple Trump campaign people who are saying that they were, that they’ve amended their testimony before the House Intelligence Committee, they sent in both Friday night and this morning, amendments to their testimony saying that in fact they feel like somebody, they’re not claiming that it was the FBI, but someone ran informants or spies into them to try to get information and offer up Russian dirt to the Trump campaign. Now this would have been in May of 2016. Which is obviously months before this counterintelligence investigation was opened by the FBI into the Trump campaign.

[snip]

If I were them I would pick up the phone and let us know what this is about, this story that broke in the Washington Post, this morning, just hours ago. They probably ought to tell us whether or not they were involved in that or else they have a major major problem on their hands.

[snip]

We should have been told about this about eight months ago. In compliance with the subpoena that we issued last August.But for sure a couple months ago, when we began to ask, we asked questions about, we had a subpoena, and we wanted to figure out what they were doing before and af, right before and right after the opening of the counterintelligence investigation. So we asked for specific information and documents. As you know, that’s what we’ve been fighting over for the last couple months now. And on Friday night it culminated with us telling them because they have swore up and down that they have given us everything that’s pertinent to our investigation after the investigation was open. And they have claimed that there is nothing else that exists before that date. Now, this Washington Post story, I don’t know that they’re claiming for sure that this was an FBI spy or informant, you know, I have no idea whether it is or not, but it has all the makings of the looks of some type of spy or informant. And that would be a major problem because that is not something that has ever been brought to us, and it would be totally out of bounds.

In an appearance providing extensive details about past classified requests and meetings with DOJ (including the one on Friday), Nunes also accuses Rosenstein of leaking by telling the press that Nunes hasn’t read the documents they’ve been demanding but which DOJ has already turned over.

At midnight, just a week ago, the Department of Justice put out something on Republicans saying that we had not read documents that the Department of Justice had provided for us to read. Now, that is a major leak, of a classified meeting, that also happens to be false because they knew that we ran out of time and didn’t have time to actually read these documents, but they did that to embarrass the Speaker of the House and myself and Chairman Gowdy who were given access to those documents but not given time to read those documents. That came from the top of the Department of Justice. Why are those people still working at the Department of Justice. They are leaking.

[snip]

Here’s the bottom line. Mr. Rosenstein, the Deputy Attorney General, and Director Wray have to decide whether or not they want to be part of the cleanup crew or they want to be part of the cover-up crew.

Then Nunes ends by saying he will move towards impeaching Rosenstein and Wray this week, based off a claim that the FBI is withholding details about that contact with “Greenberg,” the one both Stone and Caputo lied to his own committee to cover up.

Nunes: There”s going to be hell to pay by Wednesday morning.

[snip]

This is going to go from myself and just a few committee chairmen to all the members of the House of Representatives who are going to begin to take action against the Department of Justice and FBI.

Bartiromo: Taking action meaning contempt of Congress?

Nunes: Well that’s just one of the options. That’s just one of many options. But I can tell you that it’s not gonna be pretty.

Bartiromo: Are you going to force the resignation of Rod Rosenstein?

Nunes: We can’t force the resignation, but we can hold in contempt, we can pass sense of Congress resolutions, we can impeach, and look, I think we’re getting close to there.

So let’s unpack what’s going on here, aside from a really well orchestrated campaign that has been in the works since January.

First, note how Nunes twists the meaning of counterintelligence here? When discussing why the FBI obtained a FISA order on Carter Page, whom FBI suspected was a willing Russian asset going back to 2013 and whom FBI had questioned the same month Trump added him to the campaign, as part of those ongoing concerns, Nunes suggests FISA orders are only used on terrorists and international bad guys, not people who’ve been suspected of being Russian assets for years. But later in the appearance, he treats the formal start of the counterintelligence investigation into Russians infiltrating Trump’s campaign — the counterintelligence investigation (he is now using counterintelligence in its traditional sense) — as if any investigation of Page or Manafort on their own right before that would be corrupt.

Then Nunes moves to suggest that a Russian contact that Mueller may have only discovered after he obtained a warrant for Stone’s phone on March 9 — a contact that both Caputo and Stone lied to the committee about — is something the FBI has been hiding, not Caputo and Stone.

In an appearance providing a slew of non-public information about a long series of contacts, Nunes accuses Rosenstein for once doing the same thing, with the important difference that Rosenstein was correcting the false claims that Nunes was presenting to the press.

And out of all that — out of Nunes’ willingness to blame the FBI for Stone and Caputo’s lies to his own committee — Nunes is going to bring an impeachment case against Rosenstein and Wray.

Obviously, there’s an easy way for Rosenstein and Wray to defuse this, in more of the bend don’t break approach they’ve been using with these extortionists. They could explain what I have surmised: that the materials about the contact with “Greenberg” that Stone and Caputo lied to him about actually came pursuant to a grand jury search warrant based on information Rick Gates provided in February and March. This is probably a grand jury search warrant (or one similar) that Paul Manafort already tried to, but failed, to get unsealed. As far as we know, Rosenstein and Wray haven’t provided any grand jury material to HPSCI.

Of course, providing the background to this question would require providing more details about what Mueller does and doesn’t know about Roger Stone’s efforts to conspire with Russians during the election.

That’s the hostage situation that Nunes is creating here: Impeachment or details about what Mueller knows of Roger Stone’s conspiracy with Russians to obtain dirt on Hillary Clinton.

Mueller Tells Guy Who Legally Can’t Be a Target That He’s Not a Target, Perhaps in a Bid to Make Him Legally Targetable

The WaPo has a fascinating report describing that Robert Mueller informed Trump’s lawyers “in early March” that he doesn’t consider Trump a target in his investigation. That news made Trump even more determined to sit for an interview with Mueller, a decision which some of Trump’s less appropriate lawyers seem to have supported. That’s what led John Dowd to quit on March 22 (which would presumably have been two weeks or so later).

John Dowd, Trump’s top attorney dealing with the Mueller probe, resigned last month amid disputes about strategy and frustration that the president ignored his advice to refuse the special counsel’s request for an interview, according to a Trump friend.

Of course, as many people have pointed out, a sitting President can’t be indicted. NYCSouthpaw pointed to the appropriate section of the US Attorney’s Manual, which states that, “A ‘target’ is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.”

If Trump, as President, can’t be indicted, then he can’t be a putative defendant. So he’ll never be a target so long as he remains President. Dowd is likely the only lawyer on Trump’s team who has enough defense experience to understand that this should offer the President zero assurance at all.

He left when the other, ill-suited attorneys refused to believe him on this point.

Which is why the other main thrust of the story is so interesting. Mueller has also indicated that Mueller wants to start writing his report on obstruction — according to Robert Costa, with the intent of finishing it by June or July, just before Congress breaks for August recess, the official start of campaign season — with plans for a second report on the election conspiracy to follow.

The special counsel also told Trump’s lawyers that he is preparing a report about the president’s actions while in office and potential obstruction of justice, according to two people with knowledge of the conversations.

Mueller reiterated the need to interview Trump — both to understand whether he had any corrupt intent to thwart the Russia investigation and to complete this portion of his probe, the people said.

[snip]

Mueller’s investigators have indicated to the president’s legal team that they are considering writing reports on their findings in stages — with the first report focused on the obstruction issue, according to two people briefed on the discussions.

Under special counsel regulations, Mueller is required to report his conclusions confidentially to Deputy Attorney General Rod J. Rosenstein, who has the authority to decide whether to release the information publicly.

“They’ve said they want to write a report on this — to answer the public’s questions — and they need the president’s interview as the last step,” one person familiar with the discussions said of Mueller’s team.

Trump’s attorneys expect the president would also face questions about what he knew about any contacts by his associates with Russian officials and emissaries in 2016, several White House advisers said. The president’s allies believe a second report detailing the special counsel’s findings on Russia’s interference would be issued later.

That leads us to the question of how a report that Rod Rosenstein has authority to quash could be assured of “answering the public’s questions.” One option is Mueller could propose charges he knows Rosenstein won’t — or can’t — approve, which guarantees that the Chairs and Ranking Members of the Judiciary Committees (currently, Bob Goodlatte, who is retiring, Jerry Nadler, Chuck Grassley, and Dianne Feinstein, who faces a real challenge this year) will get at least a summary.

Mueller could trigger a reporting requirement in the special counsel regulations under which the attorney general must inform “the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress” — both parties, in other words — at the end of the special counsel’s investigation, of any instance in which the attorney general vetoed a proposed action. Simply by proposing to indict Trump, Mueller could ensure that Congress gets the word. But this would be of only limited scope: instead of an evidence dump, it need only be a “brief notification, with an outline of the actions and the reasons for them.”

Alternately, Mueller could recommend impeachment, but Rosenstein would be bound by grand jury secrecy rules.

If Mueller believes he has information that could warrant impeachment, he could weave it into a narrative like the Starr Report. But even if Rosenstein wanted to make the report public, he would be limited by Federal Rule of Criminal Procedure 6(e), which imposes strict limits on the disclosure of grand jury materials. This rule, which has the force of law, is intended to preserve the integrity of grand jury investigations and encourage witnesses to testify fully and frankly. Rosenstein could, if he chose, issue a redacted report that conveys the gist of Mueller’s findings.

While the election conspiracy has involved grand jury subpoenas (to people like Sam Nunberg and Ted Malloch, most recently), the obstruction investigation into Trump has involved (as far as I remember) entirely voluntary interviews and mostly, if not entirely, voluntarily produced evidence. So whereas for the larger investigation, Rosenstein will face this limit (but not if the targets — like Roger Stone — are indicted), he may not here.

All of which is to say we may be looking at a public report saying that Trump should be impeached just as Republicans attempt to keep Congress.

Even as some of Mueller’s 17+ prosecutors write that up (by my estimate, only Watergate prosecutor James Quarles has been working the Trump obstruction full time), the rest will continue to roll out evidence — possibly in the form of very inflammatory indictments — of what Trump was trying to obstruct.

Effectively, I think Mueller is giving the GOP Congress a choice. They impeach Trump on the less inflammatory stuff,which will remove all threat of firing and/or pardons to threaten the investigation, not to mention make Trump eligible to be a target for the actual election conspiracy he tried to cover up. Or after they fail to hold the House while explaining why they’re covering up for Trump’s cover up, they will face a more serious inquiry relating to Trump’s involvement in the election conspiracy.

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

HJC’s Manager’s Amendment Blows Open 702 Metadata Queries

I realized something as I was doing a last minute review comparing the Manager’s Amendment of 702 reauthorization that will be marked up in the House Judiciary Committee with a recent version. Here’s the language the two bills propose for querying of metadata:

Recent Version:

RELEVANCE AND SUPERVISORY APPROVAL TO ACCESS NON-CONTENTS INFORMATION.—Except as provided by subparagraph (D), the information of communications acquired under subsection (a) relating to the dialing, routing, addressing, signaling, or other similar non-contents information may be accessed or disseminated only upon a determination by the Attorney General that

(i) such communications are relevant to an authorized investigation or assessment, provided that such investigation or assessment is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States; and

(ii) any use of such communications pursuant to section 706 will be carried out in accordance with such section.

Manager’s Amendment

(C) RELEVANCE AND SUPERVISORY APPROVAL TO ACCESS NON-CONTENTS INFORMATION.—Except as provided by subparagraph (D), the information of communications acquired under subsection (a) relating to the dialing, routing, addressing, signaling, or other similar non-contents information may be accessed or disseminated only—

(i) with supervisory approval;

(ii) [] if such information is not sought solely on the basis of activities protected by the first amendment to the Constitution of the United States;

(iii) if an order based on probable cause would not be required by law to obtain such information if requested as part of an investigation of a Federal crime; and

(iv) if any use of such communications pursuant to section 706 will be carried out in accordance with such section.

Inventing metadata-plus

I haven’t commented on this at length, but one thing the HJC bill does that the other drafts don’t is to invent a new, undefined category of “metadata plus.” They do so to get around the issue I laid out here: NSA has always treated as metadata stuff that from a packet architecture perspective is actually content. They did so by breaking the law from 2001 to 2004 and again from 2004 to 2009 and almost certainly still from 2010 to 2011. After 2011, they simply shut down the Internet metadata program and swapped it to access of metadata acquired under the name of content from upstream collection.

If HJC were a real legislative body, they’d take this opportunity, having clearly identified the need, to redefine metadata in a way that makes sense in the Internet era.

But they chose not to do that. Instead, they’ve just slapped a “or other similar non-contents information” onto the traditional definition of metadata, without defining it!!, so as to cover the continued access to such non-content information without debating the limits of the new definition.

Swapping AG approval for supervisor approval

That redefinition of metadata happens in both bills. But something new happens in the manager’s amendment. It swaps delegable Attorney General approval for “supervisory” approval. That’s still more than currently happens at FBI but possibly less than what currently happens at NSA. But it will ensure that such queries are common and easy.

Eliminating the tie to any investigation

Then the manager’s amendment eliminates the requirement that such queries are “relevant to” (whatever that means anymore) an authorized investigation. This will open up the data for assessments, meaning the FBI can use the data for far more than just investigating crimes. Again, that matches the status quo for FBI currently (which is effectively mostly what the HJC bill does, all while screaming LIBERTY cynically). But it does mean the FBI can continue to research whether you’ve been talking to foreigners without having any evidence of wrong-doing first.

Permitting the use of location and other enhanced metadata

Here’s the big tell, the addition of this language to the metadata querying language. The government can only do back door metadata searches on US persons  “if an order based on probable cause would not be required by law to obtain such information if requested as part of an investigation of a Federal crime.”

My discussion of metadata-plus, above, is mostly important today for NSA, because it involves NSA’s use of “metadata” obtained from upstream queries. That stuff doesn’t get passed on to FBI and CIA (which like FBI refuses to count its metadata queries) yet, but I guarantee you it soon will.

But remember, FBI (and CIA) are getting raw PRISM information.

And PRISM data includes a lot of “non-content” information that is not DRAS that would be of interest to the FBI, starting with location data (among other things, FBI likes to obtain the location data from your phone that you share with apps like Facebook). This probably also allows FBI to skirt jurisdictions were obtaining content without a warrant would be illegal, given that it came from national collection. In any case, however, most jurisdictions will still give some content with a PRTT, so without probable cause.

Like all the other tweaks, this probably also reflects the status quo — meaning that the FBI is accessing as metadata stuff that is far more intrusive. But by laying out the prohibition in this way, it makes it clear that FBI (and CIA) will be (continuing to) access fairly intrusive metadata-plus collected by cloud providers that wouldn’t have been identified without the use of warrantless surveillance.

Watering the meaningless warrant requirement down still further

I have argued that the warrant requirement in the HJC bill is currently meaningless, because it permits queries for foreign intelligence information and permits the FBI to define foreign intelligence with the next certification (another area where HJC has abdicated its legislative role to the Intelligence Community).

By codifying that FBI can do metadata queries without an open investigation, the government is ensuring that it can continue to access this information at the assessment level, even if they’re not doing so under the guise of national security.

But two other changes in the manager’s amendment water down the meaningless warrant requirement even more.

First, the manager’s amendment eliminates this prohibition on using metadata to prove probable cause.

noncontents information accessed or disseminated pursuant to subparagraph (C) is not the sole basis for such probable cause;

That means the government can access metadata without an open investigation, and then use that metadata as the sole basis to access the content.

But under the manager’s amendment, the FBI can bypass the court altogether if the Attorney General (currently racist Jeff Sessions) reasonably determines the US person is communicating with someone engaged in, or materially supporting, terrorism.

Subject to section 706(a)(2), 25 based on a review described in item (II), the Attorney General reasonably determines that the person identified by the queried term is, or is communicating with—

(aa) a person reasonably believed to be engaged in international terrorism (as defined in section 101(c)) or activities in preparation therefore; or

(bb) a person reasonably believed to be acting for, or in furtherance of, the goals or objectives of an international terrorist or international terrorist organization.

And that review relies on the same metadata-plus.

A review described in this item is a review of information of communications acquired under subsection (a) relating to the dialing, routing, addressing, signaling, or other similar non-contents information,

Again, all of this basically amounts to retaining the status quo (though at a time when Russia may pose a greater threat to the US than the shriveling ISIS, and when gun violence by regular old American whackos is proving far more lethal than that of ISIS, it’s not clear that prioritizing terrorism anymore makes sense).

But it is a testament both to how much the HJC bill is really just window dressing, Potemkin reform cynically called “Liberty,” and hints at how they’re really using metadata-plus.

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

Five Reasons the 702 Reauthorization Transparency Provisions Are Bogus

I thought that, after Bob Litt left the Office of Director of National Intelligence, we might stop pushing transparency measures in surveillance bills that don’t provide transparency.

Nope.

For the most part, the added transparency in the bill is either already being accomplished (like counts of individual FISA orders or published minimization procedures) or useless. The exception is language requiring a real count of Pen Registers, which would fix a problem in the USA Freedom Act transparency provisions, which only counted Pen Registers that targeted communications, but not that targeted things like location data.

I’ll deal with two others — a declaration tied to Section 309 and a Comptroller General review of classification — separately.

The truly insulting “transparency” provisions, however, are the ones that pretend to count US person impact but do anything but. There are two parts to them. First, the bill mandates semiannual reports from the FBI (which, remember, got exempted from everything meaningful in the USA Freedom Act transparency provisions).

(d) SEMIANNUAL FBI REPORTS.—Together with the semiannual report submitted under subsection (a), the Director of the Federal Bureau of Investigation shall submit to the congressional committees specified in such sub-section, and make publicly available, a report containing, with respect to the period covered by the report, the number of queries made by the Federal Bureau of Investigation described in subsection (j)(1) of section 702 that resulted in communications being accessed or disseminated pursuant to such subsection.

The section requires the FBI Director to count how many queries are made under the new court order queries that — as I’ve already pointed out — are utterly meaningless. Whereas last year there was one equivalent count, in the future there will be none, because it will be a pain in the ass to get a criminal search order and it will remain easy as pie to treat any query as an assessment to use criminal evidence for foreign intelligence purposes. So this requirement is like dividing by zero: it doesn’t get you anywhere.

Then there’s the sham count of US persons sucked in by 702.

(c) INCIDENTALLY COLLECTED COMMUNICATIONS AND OTHER INFORMATION.—Together with the semi-annual report submitted under subsection (a), the Director of National Intelligence shall submit to the congressional committees specified in such subsection a report on incidentally collected communications and other information regarding United States persons under section 702. Each such report shall include, with respect to the 6-month period covered by the report, the following:

(1) Except as provided by paragraph (2), the number, or a good faith estimate, of communications acquired under subsection (a) of such section of known United States persons that the National Security Agency positively identifies as such in the ordinary course of its business, including a description of any efforts of the intelligence community to ascertain such number or good faith estimate.

(2) If the Director determines that calculating the number, or a good faith estimate, under paragraph (1) is not achievable, a detailed explanation for why such calculation is not achievable.

(3) The number of—

(A) United States persons whose information is unmasked pursuant to subsection (e)(4) of such section;

(B) requests made by an element of the Federal Government, listed by each such element, to unmask information pursuant to such subsection; and

(C) requests that resulted in the dissemination of names, titles, or other identifiers potentially associated with individuals pursuant to such subsection, including the element of the intelligence community and position of the individual making the request.

(4) The number of disseminations of communications acquired under subsection (a) of section 702 to the Federal Bureau of Investigation for cases not pertaining to national security or foreign intelligence.

(5) The number of instances in which evidence of a crime not pertaining to national security or foreign intelligence that was identified in communications acquired under subsection (a) of section 702 was disseminated from the national security branch of the Bureau to the criminal investigative division of the Bureau (or from such successor branch to such successor division).

Here’s why this is meaningless:

Under 702 precedent, it’s unclear whether the most intrusive collection is “incidental” or “intentional”

First, note what they call this? “Incidentally collected” communications.

One of the most concerning groups of Americans collected under 702 are, at least according to John Bates’ 2011 702 opinionnot incidental. Those are the entirely domestic communications believed to be foreign and targeted intentionally, such as the old MCT emails.

That’s important because what likely happens with a good deal of Americans communications — those collected under the 2014 exception — will mostly be purged in the post-tasking process. When NSA did a count of collections in 2011, they tried to hide how much they’re purging — and likely did hide a good bit even from the final count. The language of this provision, which only requires a count of Americans it “positively identifies as such in the ordinary course of its business,” would certainly invite NSA to do the same again.

At the very least, this provision should include both a definition of incidental and a definition of “ordinary course of business.”

An “ordinary course of business” at NSA will miss where most interaction with US person data occurs in the “ordinary course of business”

Then consider what it means that NSA — and not CIA or FBI, both of whom do a lot more searches on Americans collected under 702 — is asked to do this count. The other agencies are going to come across a lot more Americans because they’re looking for them, but that ordinary course of business exposure of Americans won’t ever be counted if the only count happens at NSA.

If DNI won’t be asked for a real count, don’t permit him to say a count is impossible

And even there, the DNI can balk and — as he and others have been saying for 6 years — claim they can’t come up with a number. This provision should either demand a real number and permit this cop out, or use the “ordinary course” number and demand a real number.

The obsession with unmasking represents an elite person’s focus on impact

Unsurprisingly, there’s several requirements on unmasking (as well as another entire section of this focusing on procedures for unmasking and a dedicated report on it, which I’m ignoring).

I know that certain Republicans have discovered the impact of surveillance by learning that they or their friends can be swept up having sensitive conversations with Russians. But the focus on unmasking really reflects an elite concern. That’s because the people who are most likely to be swept up in intercepts but masked because the political sensitivity of collecting on them outweighs the intelligence value are elites — people like Devin Nunes and Jeff Sessions, not people like Mohammed Mohamud or other brown people. Those non-elite people are the ones who’ll be prosecuted for being swept up in a 702 intercept, rather than warned off by the FBI.

So along with the boredom of having Republicans continue to pretend this is the most dangerous impact on Americans, understand that believing that is largely about elites worrying about elites.

Tracking disseminations that don’t happen

Finally, the transparency provisions track two kinds of sharing with FBI criminal investigators, that don’t track how Americans might be affected in criminal investigations.

First, it asks for “The number of disseminations of communications acquired under subsection (a) of section 702 to the Federal Bureau of Investigation for cases not pertaining to national security or foreign intelligence.” It doesn’t define “national security” (elsewhere, the bill invites the IC to define foreign intelligence). It doesn’t say “dissemination” from whom? Is this just crimes like kiddie porn (which can be a foreign intelligence if owned by a Boeing engineer, under the Gartenlaub precedent) identified by the NSA and handed over?

But the entire item is pretty meaningless, given that FBI gets raw data, which is where evidence of a crime is most likely to be IDed.

Then there’s the question about how much gets disseminated from FBI’s National Security Division to FBI’s criminal division. But at least as I understand it from Semiannual reports, access to FISA data has all been decentralized to the field office. Already, that creates problems for oversight, because ODNI and DOJ aren’t doing visits to all field offices (contrary to what was claimed in congressional testimony this year). But that also means it doesn’t (as far as I know) take a dissemination from NSD to criminal to result in the dissemination of information, because Agents with FISA clearance are going to be able to access that data from the comfort of their own office.

For both these counts, then, HJC seems to be pretending that no raw 702 data is shared with FBI. But it is. And that’s the stuff that matters.

Which is why that’s the stuff we’ll never be able to count.

Congress keeps pretending they want counts of the impact of this. The NSA count they’re refusing to do is one thing — they can at least claim privacy considerations.

But they biannual charade of pretending we’re getting FBI to examine the impact of their actions when in fact we’re letting them operate without any such metrics is getting old.

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

702 Reauthorization Bill: The “About” Fix (What Is A Person?)

I’m going to do a series of posts on the draft 702 reauthorization bill, which is here. The bill makes a number of improvements to the status quo, but it’s not clear whether it fixes the biggest problems with Section 702.

Take the “about” fix, which is a short and sweet change to the targeting procedures.

(4) LIMITATION.—During the period preceding September 30, 2023, the procedures adopted in accordance with paragraph (1) shall require that the targeting of a person is limited to communications to or from the targeted person.

As a reminder, “about” collection targeted the content of “communications” — perhaps searching on something like Osama bin Laden’s phone number in the content of email. It posed a problem because sometimes NSA obtains upstream communications in bundles, meaning they’ll get a number of unrelated communications at the same time. In such a case, if an email in a bundle included the target (OBL’s phone number), then all the emails would be collected, which also might include emails to other people. In a small number of cases, such collection would result in the collection of entirely domestic communications that had no foreign intelligence value; it resulted in a larger number of entirely domestic, unbundled communications that were of foreign intelligence value because they mentioned the selector.

The legislative fix largely parallels the fix Rosemary Collyer approved in April. She accomplished this (relying on an Administration memo that, unlike almost everything else from the reauthorization process, has not been released) this way:

Finally, upstream collection of Internet transaction [redacted] for communications to or from a targeted person, but “abouts” communication may no longer be acquired. The NSA Targeting Procedures are amended to state that “[a]cquisitions conducted under these procedures will be limited to communications to or from persons targeted in accordance with these procedures. [citation removed], and NSA’s Minimization Procedures now state that Internet transactions acquired after March 17, 2017, “that are not to or from a person targeted in accordance with NSA’s section 702 targeting procedures are unauthorized acquisitions and therefore will be destroyed upon recognition.” [citation removed]

Here’s how it looks in practice, in the current targeting procedures.

In both cases, I have a similar concern, one which is made more obvious in the targeting procedures. They start by suggesting that all acquisitions under 702 will be limited to “communications to or from persons targeted in accordance with these procedures.” But then its discussion of upstream collection defines “Internet transaction” in such a way to treat it only as a communication.

The draft bill similarly suggests the possibility that there is the targeting of persons — for whom the active user rule much hold, but if there were some other kind of targeting, it might not hold.

What is a person, in this situation? Does this language prevent NSA from targeting a group (a point raised by John Bates on precisely this point in 2011)? Can NSA target — say — an encryption product used by a corporate group (ISIS’s shitty encryption product, for example), and if so are all users of that product assumed to be part of the group? What happens if the collection is targeting the command and control server of a botnet; any communications back and forth from it are, technically speaking, communications, but not involving a human person.

In other words, both versions of this prohibition seem to operate under they fiction that NSA is just collecting emails, traditional communications between traditional people. I’m actually not sure how the language would apply to other stuff. I’m also not sure if the possible exceptions would have privacy concerns.

Which is why I’m not certain whether the prohibition actually eliminates the privacy threat in question.

Not least, because directly after the introduction of the prohibition in her opinion, Collyer acknowledges that NSA will still obtain entirely domestic comms.

As I’ve said elsewhere, I think this prohibition does fix the email (and other kinds of Internet messaging) MCT problem. But given that even Collyer admits NSA will still obtain domestic communications, there’s still the problem that those domestic comms will be sucked up in the newly permitted back door searches of upstream communications.

The Curious Timing of Flynn Events and EO 13769

The crew here has been seasonally busy; there are graduations, returns from college, business and vacation travel, many other demands keeping us away from the keyboard. Bear with us.

That’s not to say we’re not stewing about — well, everything. EVERYTHING. Pick a subject and it’s probably on fire if it’s not smoldering. Touch it and it may burst into flame, kind of like James Comey’s job.

Yesterday’s Senate Judiciary Committee hearing with testimony from Sally Yates and James Clapper is one such topic utterly ablaze. How to even start with what went wrong — like Ted ‘Zodiac Killer’ Cruz and his sidling up to ‘But her emails!’. Or John Kennedy’s [string a bunch of expletives together and insert here] questions which did nothing to further any investigation.

I’m glad Sally Yates laid one across Cruz on the Immigration and Nationality Act of 1965 (INA); he deserved it for his particularly egregious mansplaining.

As you can see from their tweets, I know my fellow contributors have much they wish they could post about the hearing. I know after the closing gavel I had many more questions, not fewer.

Like timing. Timing seemed so inter-related on seemingly disparate issues.

What about the timing of Yates’ discussion with White House Counsel Don McGahn about Lt. Gen. Michael Flynn (ret.) and the timing of the Muslim travel ban, Executive Order 13769?

10-NOV-2017 — First warning about Flynn to Trump by Obama during post-election meeting.

18-NOV-2017 — Flynn named National Security Adviser by Trump.

25-DEC-2017 — Flynn allegedly sends text messages to Russian ambassador Sergei Kislyak including holiday greetings.

29-DEC-2017 — New sanctions announced by Obama, including eviction of 35 Russians (including family members) from two compounds.

29-DEC-2017 — Michael Flynn talks with Kislyak more than once on the same day.

30-DEC-2017 — Trump tweeted positively about Russian president Vladimir Putin’s refusal to retaliate against the new sanctions.

12-JAN-2017 — The Washington Post reported on the Flynn-Kislyak conversations; source cited is “a senior U.S. government official.”

15-JAN-2017 — VP Mike Pence says in a TV interview that he had talked with Flynn about contact with Kislyak:

JOHN DICKERSON: Let me ask you about it was reported by David Ignatius that the incoming national security advisor Michael Flynn was in touch with the Russian ambassador on the day the United States government announced sanctions for Russian interference with the election. Did that contact help with that Russian kind of moderate response to it? That there was no counter-reaction from Russia. Did the Flynn conversation help pave the way for that sort of more temperate Russian response?

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

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

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

JOHN DICKERSON: But what about after—

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

JOHN DICKERSON: Absolutely.

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

JOHN DICKERSON: But that still leaves open the possibility that there might have been other conversations about the sanctions.

MIKE PENCE: I don’t believe there were more conversations.

20-JAN-2017 — Inauguration Day

21-JAN-2017 — Flynn has a follow-up call with Kislyak with regard to a future phone call between Trump and Putin.

23-JAN-2017 — Answers to questions during a press briefing with White House Press Secretary Sean Spicer didn’t match what Pence said in the 15-JAN interview. Spicer said, “There’s been one call. I talked to Gen. Flynn about this again last night. One call, talked about four subjects. … During the transition, I asked Gen. Flynn that – whether or not there were any other conversations beyond the ambassador and he said no.”(Come on, Spicey. Come the fuck on. Pure sloppiness; this isn’t the time for disinformation.)

24-JAN-2017 — Flynn is interviewed by the FBI and without a lawyer present. Yates informed McGahn about Flynn’s interview.

25-JAN-2017 — Yates reviews Flynn’s interview.

25-JAN-2017 — Draft of the travel ban EO leaked and published by WaPo

A provision about safe zones in Syria appears in this draft. It will not appear in the final EO.

26-JAN-2017 — Yates called McGahn that morning and asked for an in-person meeting about a sensitive topic she could not discuss on the phone. They met later that afternoon at McGahn’s office:

…We began our meeting telling him that there had been press accounts of statements from the vice president and others that related conduct that Mr. Flynn had been involved in that we knew not to be the truth.”

A senior member of the DOJ’s National Security Division accompanied Yates. Yates explained why Flynn was compromised and how his actions set Pence up to make unknowingly false statements to the public.

Spicer has said McGahn immediately notified and briefed Trump after meeting with Yates.

27-JAN-2017 — McGahn called Yates and asked for a second in-person meeting. Yates met him at his office. During their conversation, McGahn asked, “Why does it matter to DOJ if one White House official lies to another?” Yates re-reviews the FBI’s concerns shared the previous day. (I want to ask if McGahn got his JD out of a box of Cracker Jacks.) McGahn asked,

“And there was a request made by Mr. McGahn, in the second meeting as to whether or not they would be able to look at the underlying evidence that we had that we had described for him of General Flynn’s conduct.” (Bold mine; who is ‘they’?)

Yates indicated she would work with FBI team and “get back with him on Monday morning.”

27-JAN-2017 — Travel ban EO signed and distributed. Rex Tillerson has not yet appeared before the Senate in a confirmation hearing. Defense Department’s James Mattis did not see the EO until morning of January 27; the EO is signed later in the day after Mattis was sworn in just before 3:00 p.m. Homeland Security Secretary John Kelly said he saw final EO draft not long before it was signed. Office of Legal Counsel issued a determination about the EO that day, “the proposed order is approved with respect to form and legality.” According to Yates’ SJC testimony the OLC’s determination goes to the form and not the content of the EO.

28-JAN-2017 — Federal Judge Ann Donnelly issued a stay late Saturday on deportations of persons with valid visas.

29-JAN-2017 — Though not yet confirmed as Secretary of State, Tillerson involved in cabinet-level meetings in pre-dawn hours regarding the travel ban.

30-JAN-2017 — Yates called McGahn that morning and told him he could go to FBI to look at “underlying evidence.” McGahn does not reply until the afternoon. Yates didn’t know whether McGahn looked at evidence because “because that was my last day with DOJ.” Yates ordered DOJ not to defend the EO in court

30-JAN-2017 — Yates is fired by the White House Monday night. White House statement said,

“The acting Attorney General, Sally Yates, has betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States … This order was approved as to form and legality by the Department of Justice Office of Legal Counsel. … Ms. Yates is an Obama Administration appointee who is weak on borders and very weak on illegal immigration. It is time to get serious about protecting our country. Calling for tougher vetting for individuals travelling from seven dangerous places is not extreme. It is reasonable and necessary to protect our country.”

08-FEB-2017 — WaPo reports Flynn denied twice discussing Russian sanctions with Kislyak.

09-FEB-2017 — Allegedly, Pence learned this day Flynn was not straight with him about his interactions with Kislyak. WaPo reported Flynn had discussed sanctions with Kislyak prior to the inauguration.

10-FEB-2017 — ABC News reported Flynn wasn’t certain he talked about the sanctions with Kislyak. Pence spoke with Flynn twice this day.

12-FEB-2017 — Stephen Miller dodges questions about Flynn’s status during Sunday morning TV interviews.

13-FEB-2017 — Flynn resigns, 18 days after Yates raised questions with the White House about his vulnerability to compromise.

Yates’ directive not to enforce the illegal travel ban EO is the prima facie reason why she was fired a week after the EO was pushed. But was it really the travel ban or the fact she had not only warned the White House about Flynn’s compromised status but the implication there might be more at stake?

The rushed timing of the EO — pushed out on a Friday night after business hours — and its inception generate more questions about the travel ban.

Who really wrote the travel ban? Some reports say the ‘major architects’ were Stephen Miller and Steve Bannon, neither of whom have law degrees or any experience in legal profession. Wikipedia entry for Bannon indicates he has a master’s in national security studies from Georgetown, but there’s no indication about the date this was conferred and it’s still not a law degree. Miller has a BA from Duke and a bunch of cred from writing conservative stuff, much of it with a white nationalist bent. (Yeah, stuff, because none of it provided adequate background to write effective executive orders.)

There were reports a week after the first travel ban EO was issued which indicated Congressional aides actually wrote the executive order — aides from Rep. Bob Goodlatte’s office.

Who were those aides?

Why Goodlatte’s aides? Was it because Goodlatte is the Chairman of the House Judiciary Committee?

Was it because of Goodlatte’s immigration bills circa 2013:

H.R. 2278, the “Strengthen and Fortify Enforcement Act” (The SAFE Act)
H.R. 1773, the “Agricultural Guestworker Act”
H.R. 1772, the “Legal Workforce Act”
H.R. 2131, the “SKILLS Visa Act”

In other words, did the aides who wrote those bills also assist with and/or write the EO?

If these aides helped the ‘major architects’, why did the travel ban EO look so clearly illegal?

Did these aides ever refer the ‘major architects’ to the Office of Legal Counsel for assistance with the EO’s wording?

Did media try to interview the aides in question? If not, why? If not permitted to do so, why?

Did those aides sign a non-disclosure agreement with the White House? (Why the hell are there NDAs for ANY government employee anyhow, especially those with security clearance of any level? This is OUR government, not the Trump holding company.) Did the aides limit their work to transition team support, or were they working on the EO post-inauguration? Did they take vacation time to do the work? Or were they performing work for the White House on Congress’ dime?

In spite of his iffy-sounding support for their work, did Goodlatte kick those aides in the ass for moonlighting while puncturing the separation between the Executive Branch and the Legislative Branch, making it appear (if tenuously) there was a degree of concurrence between the two branches?

Did Michael Flynn talk about the EO with these aides?

And was Flynn one of the ‘major architects’ of the travel ban EO along with Miller and Bannon as reported in some outlets?

Assuming Flynn was a co-architect/co-author of the EO, was the EO pushed through in a hurry to effect Flynn’s work before he might be terminated and/or prosecuted?

Was the execution of a travel ban EO part of a quid pro quo with a foreign entity?
Is this the reason why Trump reduced the role of chairman of the Joint Chiefs of Staff and the director of national intelligence to “an as-needed basis” on National Security Council — to reduce potential interference by seasoned security professionals who might stop the EO?

Was Miller’s role in the creation of the travel ban EO less about any experience he has but instead related to his former work during 113th Congress with the Gang of Eight on immigration reform? (We come full circle – see Goodlatte’s bills above.)

How might this travel ban EO — banning Muslims from specific countries — help a foreign entity?

Or was the Muslim travel ban EO simply launched early — before the administration even had a Secretary of State, before its content was reasonably defensible — to distract Yates and the DOJ and derail further investigation into Flynn’s compromised status?

I’m sure if I spend any more time re-reading the SJC’s hearing transcript I’ll come up with even more questions. But as events around Flynn and the travel ban EO unfolded as if knit together, I can’t help wondering if they really were of a piece.

How odd that the first thing the first SJC non-chair member did, before asking witnesses any questions, was hand out a timeline of events to all the participants.

And how convenient FBI Director James Comey screwed up his last testimony before congress enough that his firing this evening by the White House would look entirely justified — immediately removing him not only from the next FBI flight from Los Angeles to DC but from any further investigation into Michael Flynn.

What timing.

What Secrets Are the Spooks Telling HJC about Section 702?

There’s a paper that has been making waves, claiming it has found a formula to debunk conspiracies based on the likelihood if they were real, they would have already been leaked. Never mind that people have already found fault with the math, the study has another glaring flaw. It treats the PRISM program — and not, say, the phone dragnet — as one of its “true” unknown conspiracies.

PRISM — one part of the surveillance program authorized by Section 702 of the FISA Amendments Act — was remarkable in that it was legislated in public. There are certainly parts of Section 702 that were not widely known, such as the details about the “upstream” collection from telecom switches, but even that got explained to us back in 2006 by Mark Klein. There are even details of how the PRISM collection worked — its reliance on network mapping, the full list of participants. There are details that were exposed, such as that the government was doing back door searches on content collected under it, but even those were logical guesses based on the public record of the legislative debates.

Which is why it is so remarkable that — as I noted here and here — House Judiciary Committee Chair Bob Goodlatte has scheduled a classified hearing to cover the program that has been the subject of open hearings going back to at least 2008.

The hearing is taking place as we speak with the following witnesses.

  • Mr. Robert S. Litt
    General Counsel
    Office of the Director of National Intelligence
  • Mr. Jon Darby
    Deputy Director for Analysis and Production, Signals Intelligence Directorate
    National Security Agency
  • Mr. Stuart J. Evans
    Deputy Assistant Attorney General for Intelligence, National Security Division
    U.S. Department of Justice
  • Mr. Michael B. Steinbach
    Assistant Director for Counterterrorism
    Federal Bureau of Investigation

This suggests there is either something about the program we don’t already know, or that the government is asking for changes to the program that would extend beyond the basic concept of spying on foreigners in the US using US provider help.

I guess we’re stuck wildarseguessing what those big new secrets are, given the Intelligence Community’s newfound secrecy about this program.

Some observations about the witnesses. First, between Litt and Evans, these are the lawyers that would oversee the yearly certification applications to FISC. That suggests the government may, in fact, be asking for new authorities or new interpretations of authorities.

Darby would be in charge of the technical side of this program. Since the PRISM as it currently exists is so (technologically) simple, that suggests the new secrets may involve a new application of what the government will request from providers. This might be an expansion of upstream, possibly to bring it closer to XKeyscore deployment overseas, possibly to better exploit Tor. Remember, too, that under USA Freedom Act, Congress authorized the use of data collected improperly, provided that it adheres to the new minimization procedures imposed by the FISC. This was almost certainly another upstream collection, which means there’s likely to be some exotic new upstream application that has caused the government some problems of late.

Note that the sole FBI witness oversees counterterrorism, not cybersecurity. That’s interesting because it would support my suspicions that the government is achieving its cybersecurity collection via other means now. But also that any new programs may be under the counterterrorism function. Remember, the NatSec bosses, including Jim Comey, just went to Silicon Valley to ask for help applying algorithms to identify terrorism content. Remember, too, that such applications would have been useless to prevent the San Bernardino attack if they were focused on the public social media content. So it may be that NSA and FBI want to apply algorithms identifying radicalizers to private content.

Finally, and critically, remember the Apple debate. In a public court case, Apple and the FBI are fighting over whether Apple can be required to decrypt its customers’ smart device communications. The government has argued this is within the legal notion of “assistance to law enforcement.” Apple disagrees. I think it quite possible that the FBI would try to ask for decryption help to be included under the definition of “assistance” under Section 702. Significantly, these witnesses are generally those (including Bob Litt and FBI counterterrorism) who would champion such an interpretation.

Jim Sensenbrenner Flip-Flops Wildly on Value of Classified Hearings

Jenna McLaughlin has a report on what I noted here — House Judiciary Committee Chair Bob Goodlatte has scheduled a classified hearing to talk about Section 702 of the FISA Amendments Act on February 2. In it, she includes this unbelievable quote from Jim Sensenbrenner.

“Closed briefings are necessary for members of Congress to ask questions about classified information,” said Judiciary Committee member Jim Sensenbrenner, R-Wisc., in a statement to The Intercept. “However, I would support a subsequent open hearing on Section 702 of the Foreign Intelligence Surveillance Act because transparency and public discussion are critical to the reform and reauthorization of Section 702.”

It’s unbelievable because, after Sensenbrenner made some horseshit claims of ignorance immediately after Edward Snowden revealed the phone dragnet that had been authorized by legislation Sensenbrenner had authored, people started asking why he hadn’t gone to the classified hearings, at which DOJ briefed members about the dragnet (and FBI later lied about the abuses carried out in executing that dragnet).

Sensenbrenner’s spokesperson explained back in 2013 that he didn’t go to those classified hearing because he didn’t want to be restrained by confidentiality.

Asked whether his boss had attended any of those sessions during that period, Sensenbrenner spokesperson Ben Miller said the congressman “does not want to be limited by the restraints of confidentiality. Therefore, he believes in an open dialogue by which legislative solutions can be constructed and passed into law before the public.” Miller said Sensenbrenner had “attended confidential briefings in the past,” but didn’t say how many, which ones, or whether any dealt directly with the “sensitive” application of section 215.

[snip]

“While some members of Congress were briefed, particularly those on the intelligence committees, most, including myself, were not,” Sensenbrenner wrote in a column for The Guardian newspaper. Sensenbrenner did not disclose, as his spokesperson did for this story, that he chooses not to attend the briefings.

So back in 2013, when Sensenbrenner was disclaiming any responsibility for a dragnet, he didn’t to be restrained by what he gets told in a classified hearing.

But now, at a time when Congress might consider stopping FBI from doing its uncounted back door searches of people it has no evidence against, Sensenbrenner says “closed briefings are necessary.”

Given what 2013 Sensenbrenner said about the importance of conducting these discussions in the light of day, and given that Section 702 has always been debated in public, I would suggest Sensenbrenner’s support for closed hearings now suggests the fix is in.

One wonders what squeals of outrage Sensenbrenner will make in 2023 after new abuses of Section 702 get disclosed?

 

After Lying in a Closed Surveillance Briefing in 2011, Intelligence Community Plans Another Closed Briefing

On May 18, 2011, 48 members of the House (mostly Republicans, but also including MI’s Hansen Clarke) attended a closed briefing given by FBI Director Robert Mueller and General Counsel Valerie Caproni on the USA PATRIOT Act authorities up for reauthorization. The hearing would serve as the sole opportunity for newly elected members to learn about the phone and Internet dragnets conducted under the PATRIOT Act, given Mike Rogers’ decision not to distribute the letter provided by DOJ to inform members on the secret dragnets they were about to reauthorize.

During the hearing, someone asked,

Russ Feingold said that Section 215 authorities have been abused. How does the FBI respond to that accusation?

One of the briefers — the summary released under FOIA does not say who — responded,

To the FBI’s knowledge, those authorities have not been abused.

As a reminder, hearing witness Robert Mueller had to write and sign a declaration for the FISC two years earlier to justify resuming full authorization for the phone dragnet because, as Judge Reggie Walton had discovered, the NSA had conducted “daily violations of the minimization procedures” for over two years. “The minimization procedures proposed by the government in each successive application and approved and adopted as binding by the orders of the FISC have been so frequently and systemically violated that it can fairly be said that this critical element of the overall BR regime has never functioned effectively,” Walton wrote in March 2009.

Now, I can imagine that whichever FBI witness claimed the FBI didn’t know about any “abuses” rationalized the answer to him or herself using the same claim the government has repeatedly made — that these were not willful abuses. But Walton stated then — and more evidence released since has made clear he was right since — that the government simply chose to subject the vast amount of US person data collected under the PATRIOT Act to EO 12333 standards, not more stringent PATRIOT Act ones. That is, the NSA, operating under FBI authorizations, made a willful choice to ignore the minimization procedures imposed by the 2006 reauthorization of the Act.

Whoever answered that question in 2011 lied, and lied all the more egregiously given that the questioner had no way of phrasing it to get an honest answer about violations of minimization procedures.

Which is why the House Judiciary Committee should pointedly refuse to permit the Intelligence Committee to conduct another such closed briefing, as they plan to do on Section 702 on February 2. Holding a hearing in secret permits the IC to lie to Congress, not to mention disinform some members in a venue where their colleagues can not correct the record (as Feingold might have done in 2011 had he learned what the FBI witnesses said in that briefing).

I mean, maybe HJC Chair Bob Goodlatte wants to be lied to? Otherwise, there’s no sound explanation for scheduling this entire hearing in closed session.

 

The FISC Purportedly Continues to Have Problems with “Relevant” and “All”

Amid posts bewailing Rand Paul because the Senator’s substantial discussions of the problems with EO 12333 and Section 702 spying aren’t the substantial discussions he wants (I’ll return to these once more pressing matters have passed), Steve Vladeck has returned to the USA F-ReDux topic on which he doesn’t keep contradicting himself: the amicus.

As he notes (and I noted here), Mitch McConnell is (as we speak) attempting to water down the already flimsy FISC amicus via amendment. And Vladeck — as he has before — exposed the false claims that the objections to the amicus comes from the judiciary, this time as represented in the letter from Director of the Administrative Offices of US Courts James Duff.

Why is such a radical amendment to a provision in the House bill that was negotiated very carefully so necessary? According to the memo, “Amendment 1451 is responsive to the judiciary’s continual opposition to the amicus structure of the USA Freedom Act,” as manifested in “a letter to Congress from the director of the Administrative Office of the U.S. Courts.”

[snip]

I don’t mean to belabor the point. If anything, as I suggested yesterday, section 401 of the House-passed USA FREEDOM Act is a terribly weak version of what should have been a very good (and unobjectionable) idea–allowing a security-cleared outside lawyer to participate in the tiny percentage of cases before the FISC that involve applications for anything besides individualized warrants (you know, the cases in which adversarial participation is already authorized).Part of why section 401 is so weak is because members of Congress have consistently allowed themselves to be snookered by (or have found it convenient to hide behind) the objections of the “judiciary.”

On the merits, though, these objections are patently unavailing. And they certainly aren’t the objections of the “judiciary.”

I’ve also tracked how others, like James Clapper, have been using these purported judiciary concerns to undercut the “advocate” that President Obama used to pretend to want.

What’s particularly interesting, however, is one of the recurrent problems the “judges” seem to keep having. Duff emphasizes that one problem with amici is the Executive would lie to the FISC if telling the truth might risk revealing useful information to an amici. And as one part of that, he focuses on USA F-ReDux’s intent to get

Designated amici are required to have access to “all relevant” legal precedent, as well as certain other materials “the court determines are relevant.

[snip]

We are concerned that a lack of parallel construction in proposed clause (6)(A)(i) (apparently differentiating between access to legal precedent as opposed to access to other materials) could lead to confusion in its application.

This is what Clapper seemed to be going after last September.

Clapper signals he will make the amicus curiae something different. First, he emphasized this amicus will not interfere with ex parte communications between the court and the government. That may violate this passage of Leahy’s bill, which guarantees the special advocate have access to anything that is “relevant” to her duties.

(A) IN GENERAL.—If a court established under subsection (a) or (b) designates a special advocate to participate as an amicus curiae in a proceeding, the special advocate—

[snip]

(ii) shall have access to all relevant legal precedent, and any application, certification, petition, motion, or such other materials as are relevant to the duties of the special advocate;

Given that in other parts of 50 USC 1861, “relevant” has come to mean “all,” it’s pretty amazing that Clapper says the advocate won’t have access to all communication between the government and the court.

But the really interesting thing — the reason McConnell’s as-we-speak attempt to gut the amicus further — is that the House already fixed some of this. In a manager’s amendment presented as technical clarifications (but which, on this issue, were not), Bob Goodlatte rewrote this passage:

(i) shall have access to all relevant legal precedent, and any application, certification, petition, motion, or such other materials that the court determines are relevant to the duties of the amicus curiae;

To read like this, to directly address one of Huff’s stated concerns:

(i) shall have access to any relevant legal precedent, and application, certification, petition, motion, or such other materials that the court determines are relevant to the duties of the amicus curiae;

That is, Goodlatte already gave the court complete discretion over what the amicus could access, up to and including underlying legal precedents.

Of course, all that assumes the courts will get all the information they need, which they have a long history of not doing.

Here’s the real takeaway though. The President likes to claim he supports this reform. But he has already made it clear he didn’t really want an advocate at the FISC, but would instead like the FISC to remain a rubber stamp.