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James Clapper: Unmasking And/Or Jeff Sessions?

I’m traveling so I’ll have to lay out my thoughts about the Comey firing later.

But for the moment I want to point to a detail in Monday’s hearing that deserves more attention now.

Early in the hearing, Chuck Grassley asked both Sally Yates and James Clapper if they have ever unmasked a Trump associate or member of Congress. Yates said no, but Clapper revealed he had unmasked someone, but couldn’t say more.

GRASSLEY: OK. I want to discuss unmasking.

Mr. Clapper and Ms. Yates, did either of you ever request the unmasking of Mr. Trump, his associates or any member of Congress?

CLAPPER: Yes, in one case I did that I can specifically recall, but I can’t discuss it any further than that.

GRASSLEY: You can’t, so if I ask you for details, you said you can’t discuss that, is that what you said?

CLAPPER: Not — not here.

Grassley returned to the issue for clarification later on. Clapper said he had asked to have the identity of both a member of Congress and a Trump associate unmasked. But then he said he had only asked on one occasion.

GRASSLEY: Mr. Clapper, you said yes when I asked you if you ever unmasked a Trump associate or a member of Congress. But I forgot to ask, which was it? Was it a Trump associate, a member of Congress, or both?

CLAPPER: Over my time as DNI, I think the answer was on rare occasion, both. And, again, Senator, just to make the point here, my focus was on the foreign target and at the foreign target’s behavior in relation to the U.S. person.

GRASSLEY: OK. How many instances were there, or was there just one?

CLAPPER: I can only recall one.

Finally, Lindsey Graham returned to the issue at the close of the hearing. Clapper confirmed he had made a request to unmask a Trump associate and a member of Congress.

You made a request for unmasking on a Trump associate and maybe a member of Congress? Is that right, Mr. Clapper?

CLAPPER: Yes.

Obviously, there’s plenty of room for confusion in these exchanges, and Clapper has a history of sowing confusion in Congressional testimony.

But if it is true that he has only unmasked one person but that he has unmasked both a Trump associate and a member of Congress, it would suggest he unmasked the identity of a member of Congress who is a Trump associate.

If that’s right, there are several possibilities for who it could be: transition official Devin Nunes, national security advisor Richard Burr, and national security official Jeff Sessions.

But the most likely is Sessions, because we know he was talking to Sergey Kislyak and the intelligence community has pulled their collection on Kislyak.

Even if that’s the case, it’s unsurprising Sessions’ communications with Kislyak have been reviewed and unmasked.

Still, it is a data point from Monday’s hearing that makes Sessions’ role in the firing of Jim Comey worth noting.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

One Takeaway from the Five Takeaways from the Comey Hearing: Election 2016 Continues to Suffocate Oversight

The Senate Judiciary Committee had an oversight hearing with Jim Comey yesterday, which I live-tweeted in great depth. As you can imagine, most of the questions pertained either to Comey’s handing of the Hillary investigation and/or to the investigation into Russian interference in the election. So much so that The Hill, in its “Five Takeaways from Comey’s testimony,” described only things that had to do with the election:

  • Comey isn’t sorry (but he was “mildly nauseous” that his conduct may have affected the outcome)
  • Emotions over the election are still raw
  • Comey explains DOJ dynamic: “I hope someday you’ll understand”
  • The FBI may be investigating internal leaks
  • Trump, Clinton investigations are dominating FBI oversight

The Hill’s description of that third bullet doesn’t even include the “news” from Comey’s statement: that there is some still-classified detail, in addition to Loretta Lynch’s tarmac meeting with Bill Clinton and the intercepted Hillary aide email saying Lynch would make sure nothing happened with the investigation, that led Comey to believe he had to take the lead on the non-indictment in July.

I struggled as we got closer to the end of it with the — a number things had gone on, some of which I can’t talk about yet, that made me worry that the department leadership could not credibly complete the investigation and declined prosecution without grievous damage to the American people’s confidence in the — in the justice system.

As I said, it is true that most questions pertained to Hillary’s emails or Russia. Still, reports like this, read primarily by people on the Hill, has the effect of self-fulfilling prophecy by obscuring what little real oversight happened. So here’s my list of five pieces of actual oversight that happened.

Neither Grassley nor Feinstein understand how FISA back door searches work

While they primarily focused on the import of reauthorizing Section 702 (and pretended that there were no interim options between clean reauthorization and a lapse), SJC Chair Chuck Grassley and SJC Ranking Member Dianne Feinstein both said things that made it clear they didn’t understand how FISA back door searches work.

At one point, in a discussion of the leaks about Mike Flynn’s conversation with Sergey Kislyak, Grassley tried to suggest that only a few people at FBI would have access to the unmasked identity in those intercepts.

There are several senior FBI officials who would’ve had access to the classified information that was leaked, including yourself and the deputy director.

He appeared unaware that as soon as the FBI started focusing on either Kislyak or Flynn, a back door search on the FISA content would return those conversations in unmasked form, which would mean a significant number of FBI Agents (and anyone else on that task force) would have access to the information that was leaked.

Likewise, at one point Feinstein was leading Comey through a discussion of why they needed to have easy back door access to communication content collected without a warrant (so we don’t stovepipe anything, Comey said), she said, “so you are not unmasking the data,” as if data obtained through a back door search would be masked, which genuinely (and rightly) confused Comey.

FEINSTEIN: So you are not masking the data — unmasking the data?

COMEY: I’m not sure what that means in this context.

It’s raw data. It would not be masked. That Feinstein, who has been a chief overseer of this program for the entire time back door searches were permitted doesn’t know this, that she repeatedly led the effort to defeat efforts to close the back door loophole, and that she doesn’t know what it means that this is raw data is unbelievably damning.

Incidentally, as part of the exchange wit Feinstein, Comey said the FISA data sits in a cloud type environment.

Comey claims the government doesn’t need the foreign government certificate except to target spies

Several hours into the hearing, Mike Lee asked some questions about surveillance. In particular, he asked if the targeting certificates for 702 ever targeted someone abroad for purposes unrelated to national security. Comey seemingly listed off the certificates we do have — foreign government, counterterrorism, and counterproliferation, noting that cyber gets worked into other ones.

LEE: Yes. Let’s talk about Section 702, for a minute. Section 702 of the Foreign Intelligence Surveillance Amendments Act authorizes the surveillance, the use of U.S. signals surveillance equipment to obtain foreign intelligence information.

The definition includes information that is directly related to national security, but it also includes quote, “information that is relevant to the foreign affairs of the United States,” close quote, regardless of whether that foreign affairs related information is relevant to a national security threat. To your knowledge, has the attorney general or has the DNI ever used Section 702 to target individuals abroad in a situation unrelated to a national security threat?

COMEY: Not that I’m aware of. I think — I could be wrong, but I don’t think so, I think it’s confined to counterterrorism to espionage, to counter proliferation. And — those — those are the buckets. I was going to say cyber but cyber is fits within…

He said they don’t need any FG information except that which targets diplomats and spies.

LEE: Right. So if Section 702 were narrowed to exclude such information, to exclude information that is relevant to foreign affairs, but not relevant to a national security threat, would that mean that the government would be able to obtain the information it needs in order to protect national security?

COMEY: Would seem so logically. I mean to me, the value of 702 is — is exactly that, where the rubber hits the road in the national security context, especially counterterrorism, counter proliferation.

I assume that Comey said this because the FBI doesn’t get all the other FG-collected stuff in raw form and so isn’t as aware that it exists. I assume that CIA and NSA, which presumably use this raw data far more than FBI, will find a way to push back on this claim.

But for now, we have the FBI Director stating that we could limit 702 collection to national security functions, a limitation that was defeated in 2008.

Comey says FBI only needs top level URLs for ECTR searches

In another exchange, Lee asked Comey about the FBI’s continued push to be able to get Electronic Communication Transaction Records. Specifically, he noted that being able to get URLs means being able to find out what someone was reading.

In response, Comey said he thought they could only get the top-level URL.

After some confusion that revealed Comey’s lie about the exclusion of ECTRs from NSLs being just a typo, Comey said FBI did not need any more than the top domain, and Lee answered that the current bill would permit more than that.

LEE: Yes. Based on the legislation that I’ve reviewed, it’s not my recollection that that is the case. Now, what — what I’ve been told is that — it would not necessarily be the policy of the government to use it, to go to that level of granularity. But that the language itself would allow it, is that inconsistent with your understanding?

COMEY: It is and my understanding is we — we’re not looking for that authority.

LEE: You don’t want that authority…

(CROSSTALK)

COMEY: That’s my understanding. What — what we’d like is, the functional equivalent of the dialing information, where you — the address you e-mailed to or the — or the webpage you went to, not where you went within it.

This exchange should be useful for limiting any ECTR provision gets rushed through to what FBI claims it needs.

The publication of (US) intelligence information counts as intelligence porn and therefore not journalism

Ben Sasse asked Comey about the discussion of indicting Wikileaks. Comey’s first refusal to answer whether DOJ would indict Wikileaks led me to believe they already had.

I don’t want to confirm whether or not there are charges pending. He hasn’t been apprehended because he’s inside the Ecuadorian embassy in London.

But as part of that discussion, Comey explained that Wikileaks’ publication of loads of classified materials amounted to intelligence porn, which therefore (particularly since Wikileaks didn’t call the IC for comment first, even though they have in the past) meant they weren’t journalism.

COMEY: Yes and again, I want to be careful that I don’t prejudice any future proceeding. It’s an important question, because all of us care deeply about the First Amendment and the ability of a free press, to get information about our work and — and publish it.

To my mind, it crosses a line when it moves from being about trying to educate a public and instead just becomes about intelligence porn, frankly. Just pushing out information about sources and methods without regard to interest, without regard to the First Amendment values that normally underlie press reporting.

[snip]

[I]n my view, a huge portion of WikiLeaks’s activities has nothing to do with legitimate newsgathering, informing the public, commenting on important public controversies, but is simply about releasing classified information to damage the United States of America. And — and — and people sometimes get cynical about journalists.

American journalists do not do that. They will almost always call us before they publish classified information and say, is there anything about this that’s going to put lives in danger, that’s going to jeopardize government people, military people or — or innocent civilians anywhere in the world.

I’ll write about this more at length.

Relatedly (though technically a Russian investigation detail), Comey revealed that the investigation into Trump ties to Russia is being done at Main Justice and EDVA.

COMEY: Yes, well — two sets of prosecutors, the Main Justice the National Security Division and the Eastern District of Virginia U.S. Attorney’s Office.

That makes Dana Boente’s role, first as Acting Attorney General for the Russian investigation and now the Acting Assistant Attorney General for National Security, all the more interesting, as it means he is the person who can make key approvals related to the investigation.

I don’t have any problem with him being chosen for these acting roles. But I think it supremely unwise to effectively eliminate levels of oversight on these sensitive cases (Russia and Wikileaks) by making the US Attorney already overseeing them also the guys who oversees his own oversight of them.

The US is on its way to becoming the last haven of shell corporations

Okay, technically these were Sheldon Whitehouse and Amy Klobuchar comments about Russia. But as part of a (typically prosecutorial) line of questioning about things related to the Russian investigation, Whitehouse got Comey to acknowledge that as the EU tries to crack down on shell companies, that increasingly leaves the US as the remaining haven for shell companies that can hide who is paying for things like election hacks.

WHITEHOUSE: And lastly, the European Union is moving towards requiring transparency of incorporations so that shell corporations are harder to create. That risks leaving the United States as the last big haven for shell corporations. Is it true that shell corporations are often used as a device for criminal money laundering?

COMEY: Yes.

[snip]

WHITEHOUSE: What do you think the hazards are for the United States with respect to election interference of continuing to maintain a system in which shell corporations — that you never know who’s really behind them are common place?

COMEY: I suppose one risk is it makes it easier for illicit money to make its way into a political environment.

WHITEHOUSE: And that’s not a good thing.

COMEY: I don’t think it is.

And Klobuchar addressed the point specifically as it relates to high end real estate (not mentioning that both Trump and Paul Manafort have been alleged to be involved in such transactions).

There have been recent concerns that organized criminals, including Russians, are using the luxury real estate market to launder money. The Treasury Department has noted a significant rise in the use of shell companies in real estate transactions, because foreign buyers use them as a way to hide their identity and find a safe haven for their money in the U.S. In fact, nearly half of all homes in the U.S. worth at least $5 million are purchased using shell companies.

Does the anonymity associated with the use of shell companies to buy real estate hurt the FBI’s ability to trace the flow of illicit money and fight organized crime? And do you support efforts by the Treasury Department to use its existing authority to require more transparency in these transactions?

COMEY: Yes and yes.

It’s a real problem, and not just because of the way it facilitates election hacks, and it’d be nice if Congress would fix it.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Grassley Continues to Ask Worthwhile Questions about the Steele Dossier

In this post, I noted several details made clear by Christopher Steele’s defense in a lawsuit pertaining to the dossier he did for opponents to Donald Trump:

  • Steele also shared his dossier with an active British intelligence official, which is a second channel via which the US intelligence community may have obtained the dossier in spite of their hilariously unconvincing denials
  • Steele’s claims he wasn’t sharing actual copies of the dossier with the press, at least, don’t accord with other public claims
  • Steele said absolutely nothing about how he shared the dossier with the FBI (which may have been an alternative channel via which it leaked)
  • Steele obtained the most inflammatory claims in the dossier at a time when he claims neither to have been paid nor to have been actively collecting intelligence (and paying sources)

Taken together, these inconsistencies suggest certain alternative stories about the dossier. For example, it’s possible the dossier was used as a way to launder intelligence gathered via other means, as a way to protect sources and methods. It’s likely the US IC had more awareness and involvement in the dossier than they’ve publicly claimed.

With that in mind, I find it very interesting that Chuck Grassley claims to have found inconsistencies in the story FBI and DOJ are giving him about the dossier.

As I noted at the time, Grassley raised some really good questions in a letter to FBI back on March 6, questions made all the more salient given three somewhat conflicting reports about whether the FBI ever paid Steele.

Yesterday, he held a presser to release another letter to FBI, which he sent last Friday. He explained that nine days after he sent his letter, Comey briefed him and Dianne Feinstein on the circumstances surrounding Mike Flynn’s ouster, and answered a few of the questions Grassley had asked in his March 6 letter. But FBI never did respond to the letter itself, beyond sending a four sentence boilerplate letter on April 19, claiming the questions had been answered in the briefing.

In the letter, Grassley makes clear that documents the committee received from DOJ since (are these not FBI? If so are they NSD?) conflict with what Comey relayed in the briefing in that FBI actually had a more substantive relationship than Comey let on.

There appear to be material inconsistencies between the description of the FBI’s relationship with Mr. Steele that you did provide in your briefing and information contained in Justice Department documents made available to the Committee only after the briefing.  Whether those inconsistencies were honest mistakes or an attempt to downplay the actual extent of the FBI’s relationship with Mr. Steele, it is essential that the FBI fully answer all of the questions from the March 6 letter and provide all the requested documents in order to resolve these and related issues.

Significantly, after having asked these questions about public reports that FBI had discussed paying Steele,

All FBI records relating to the agreement with Mr. Steele regarding his investigation of President Trump and his associates, including the agreement itself, all drafts, all internal FBI communications about the agreement, all FBI communications with Mr. Steele about the agreement, all FBI requests for authorization for the agreement, and all records documenting the approval of the agreement.

[snip]

Did the agreement with Mr. Steele ever enter into force?  If so, for how long?  If it did not, why not?

Grassley is restating that question, asking for documentation of all payments to Steele.

Documentation of all payments made to Mr. Steele, including for travel expenses, if any; the date of any such payments; the amount of such payments; the authorization for such payments.

He asked about it in today’s oversight hearing with Comey, and Comey insisted the appearance of conflict was easy to explain (and promised to explain it). I suspect DOJ may have paid for Steele’s travel to the US in October 2016, which might be fine, but that was also when Steele shared his dossier with David Corn. Otherwise, Comey refused to answer in a public forum questions about whether FBI made any representations to a judge relying on the dossier (for example for the FISA order), whether the FBI was aware that Steele paid sources who paid subsources, and whether Comey or the FBI knew that Fusion employed a former Russian intelligence officer who was (like Mike Flynn and Paul Manafort) were serving as an unregistered agent of a foreign power, in this case to help Russia fight Magnitsky sanctions.

The last question pertains to Fusion employee, Rinat Akhmetshin. In July 2016, Hermitage Capital Management filed a FARA complaint against him and number of other people alleging they were unregistered lobbyists for Prevezon Holdings, a Cyprus based firm that was seeking to push back against sanctions. The complaint alleges, among other things, that Akhmetshin is a former GRU officer, hired to generate negative publicity, and has been ” accused of organizing, on behalf of Russian oligarch Andrey Melnichenko, for the computers of International Mineral Resources to be hacked to steal “confidential, personal and otherwise sensitive information” so that it could be disseminated.”

Grassley surely raised the issue (as he also did in a March letter to Dana Boente in the latter’s role as Acting Attorney General) to accuse Steele’s associates of the same things Steele and others have accused Paul Manafort of (and Mike Flynn has admitted). But it seems an utterly valid issue in any case, not least because it raises questions of why Fusion brought in Steele when Akhmetshin could have collected Russian intelligence on Trump himself. Did he? If so, was that included in the parts of the dossier we haven’t seen. More importantly, was Akhmetshin still around when the dossier got leaked? Does he have any ongoing ties with Russia that might lead to the murder of sourced named in the dossier?

In today’s hearing, Grassley said that Fusion refused to cooperate with the questions he posed to them about the dossier. It seems the firms paid to compile that dossier are obfuscating on both sides of the Atlantic.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

BBC’s FISA Reporter Argues CIA Should Lead Trump Investigation

Paul Wood is the BBC reporter who, in a January story focusing largely on MI6 officer Christopher Steele’s dossier, repeated the Louise Mensch report that the government had obtained a FISA order targeting two Russian banks.

On 15 October, the US secret intelligence court issued a warrant to investigate two Russian banks. This news was given to me by several sources and corroborated by someone I will identify only as a senior member of the US intelligence community. He would never volunteer anything – giving up classified information would be illegal – but he would confirm or deny what I had heard from other sources.

Last night he posted another story, confirming that one of the figures described in Steele’s dossier as having been withdrawn from DC because of his close ties to the election operation, Mikhail Kalugin, was indeed a Russian spy operating under diplomatic cover.

[S]ources I know and trust have told me the US government identified Kalugin as a spy while he was still at the embassy.

[snip]

A retired member of a US intelligence agency told me that Kalugin was being kept under surveillance before he left the US.

But I’m more interested in the vague details Wood offers about Steele’s past cooperation — and how he pitches a claim that the FBI is screwing up the investigation.

Remember: the public story is that only the FBI had any contact with Steele. But the first time this article describes him sharing information he collected for other sources with US intelligence agencies, it doesn’t specify that.

I understand – from former officials – that from 2013-16, Steele gave the US government extensive information on Russia and Ukraine.

This was work done for private clients, but which Steele wanted the US authorities to see.

One former senior official who saw these reports told me: “It was found to be of value by the people whose job it was to look at Russia every day.

Indeed, the article distinguishes between what those agencies believed about Steele from what the FBI did.

In light of his earlier work, the US intelligence community saw him as “credible” (their highest praise).

The FBI thought the same; they had worked with Steele going back to his days in MI6.

The article goes on to complain that Steele never briefed the CIA on the dossier, which it explains by saying his Russian related contacts had moved on.

But the CIA never interviewed him, and never sought to.

This comes from several people who are in a position to know.

[snip]

I understand that Steele himself did not ask to brief the CIA because he had a long-standing relationship with the FBI.

The Russia people at the CIA had moved on and he felt he did not have the personal contacts he would need.

As a reminder, the Intelligence Community offered completely ridiculous explanations for when it first obtained the dossier, which were implausible, even ignoring the way they pretended FBI wasn’t part of the IC.

In any case, having laid out these distinctions, the article then voices the complaints of those who believe the FBI is screwing the investigation up, and that only CIA has the contacts to conduct it.

This comes from several people who are in a position to know.

They are alarmed at how the investigation is going, and worry it is being fumbled.

One said: “The FBI doesn’t know about Russia, the CIA knows about Russia.

“Any sources Steele has in Russia, the FBI doesn’t know how to evaluate.

“The Agency does… Who’s running this thing from Moscow? The FBI just aren’t capable on that side, of even understanding what Chris has.”

The article cites one reason this complaint is bogus — the CIA, along with other agencies, are part of the task force investigating this case. It doesn’t explain why the theory voiced by its sources — that the Russians would need to steal voter roll data from states (or even cooperate with Trump) to micro-target messages. Voter rolls are readily available. And while cooperating with Trump’s campaign would make micro-targeting more effective, it would not be necessary for a knowledgable person.

In any case, these complaints sound like the excuses given for why Steele did not, ultimately, take payment from FBI (which I discussed here), with one difference. It wasn’t just that Steele thought the FBI was paying too much attention on Hillary’s email campaign, but he thought publicizing his dossier would make the difference in the election.

“He really thought that what he had would sway the election,” said one.

That claim, with questions introduced by this article about which agencies he has worked with, is rather interesting.

One final point. After the article got posted, the Beeb took out a critical line (highlighted below) claiming that Steele didn’t share his dossier with reporters himself, but instead did so through his employer.

That doesn’t make sense for a lot of reasons — and is belied by David Corn’s account of what happened. But I find it particularly interesting given the fact that — after Chuck Grassley first asked the FBI to provide information on the dossier — Grassley has since asked the consulting firm questions that would provide a way to double check the FBI’s claims. Fusion’s answers, which are due by April 7, might present problems for this claim, which has since disappeared. Poof!

Among the things Richard Burr suggested yesterday is that the committee may not succeed in getting Steele to testify (suggesting that being outside the country put him beyond subpoena). Given the airing of complaints from Steele and his friends here, I really look forward to seeing whether he cooperates with SSCI.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

The Feedback Loop in Christopher Steele’s Dossier

Last week, at least three media outlets have provided new details about the relationship between former MI6 officer Christopher Steele — the author of the Trump dossier — and the FBI. First WaPo reported that Steele had reached a verbal agreement that the FBI would pay him to continue his investigation of Russia’s involvement with Trump after still unnamed Democrats stopped paying him after the election. CNN then reported that FBI actually had paid Steele for his expenses. Finally, NBC reported Steele backed out of the deal before it was finalized. Chuck Grassley just sent a letter to Jim Comey asking for more information about the proposed arrangement with Steele.

I’m with Grassley on this. According to WaPo and NBC, FBI would only have paid Steele after the election, presumably regardless of the outcome; by that point Steele’s research couldn’t affect the outcome of the investigation. Nevertheless, the possibility that FBI may have used information from a Democratically paid oppo researcher does raise questions of propriety. Add in the discrepancies in these three reports about whether FBI did pay for Steele’s work, and Grassley is right to raise questions.

I’m also interested in what the relationship says about the way in which political necessities may have impacted the content of Steele’s dossier. All three reports attribute the termination of any FBI-Steele relationship, at least in part, to Steele’s frustration with the FBI. WaPo goes on at some length, explaining that Steele got pissed when Jim Comey reopened the Hillary investigation on October 28, and then grew angrier after the NYT reported the FBI had not confirmed any link to Russia.

Ultimately, the FBI did not pay Steele. Communications between the bureau and the former spy were interrupted as Steele’s now-famous dossier became the subject of news stories, congressional inquiries and presidential denials, according to the people familiar with the arrangement, who spoke on the condition of anonymity because they were not authorized to discuss the matter.

[snip]

In October, anticipating that funding supplied through the original client would dry up, Steele and the FBI reached a spoken understanding: He would continue his work looking at the Kremlin’s ties to Trump and receive compensation for his efforts.

But Steele’s frustration deepened when FBI Director James B. Comey, who had been silent on the Russia inquiry, announced publicly 11 days before the election that the bureau was investigating a newly discovered cache of emails Clinton had exchanged using her private server, according to people familiar with Steele’s thinking.

Those people say Steele’s frustration with the FBI peaked after an Oct. 31 New York Times story that cited law enforcement sources drawing conclusions that he considered premature. The article said that the FBI had not yet found any “conclusive or direct link” between Trump and the Russian government and that the Russian hacking was not intended to help Trump.

WaPo doesn’t lay this out in detail, however. Here’s what happened on those days in October:

October 28: Comey informs eight committee chairs he will reopen the investigation, which promptly (and predictably) leaks.

October 30: Having been officially briefed on the dossier, Harry Reid writes Comey accusing him of a Hatch Act violation for releasing the information on Clinton while withholding what we know to be information in the dossier.

October 31, 6:52PM: David Corn publishes story based on dossier.

October 31, 9:27PM: NYT publishes article describing multiple investigations into Russian interference, stating “no evidence has emerged that would link him or anyone else in his business or political circle directly to Russia’s election operations.”

October 31, 10:52PM: NYT edits article, adding “conclusive or direct” as a caveat in the sentence “Law enforcement officials say that none of the investigations so far have found any conclusive or direct link between Mr. Trump and the Russian government.”

Notably, assuming the times in Newsdiffs (from which I got the NYT timing) are correct, Steele had already gone public before the NYT published its article. That suggests he (like Harry Reid) believed his research should be part of a competing public story. And by going public in what was obviously a Democratically-seeded article, Steele likely made it far more difficult for FBI to continue the relationship.

Already, these new timeline details raise questions about the degree to which Steele’s concerns that the Trump Russian investigation should have more prominence than the email investigation may have influenced his work. Even if Jim Comey did do something colossally stupid by announcing the reopening of the investigation, that shouldn’t affect Steele’s interest in providing the best intelligence to the US, regardless of the public impact, unless he was always motivated primarily by his role as campaign oppo researcher.

The pointless Alfa Bank report that nevertheless seems to reinforce the dodgy Alfa server story

But I also wonder whether it relates to the content. Consider report 112, dated September 14. It pertains to “Kremlin-Alpha Group Cooperation.” It doesn’t have much point in a dossier aiming to hurt Trump. None of his associates nor the Russian DNC hack are mentioned. It does suggest that that Alfa Group had a “bag carrier … to deliver large amounts of illicit cash to” Putin when he was Deputy Mayor of St. Petersburg, though describes the current relationship as “both carrot and stick,” relying in part on kompromat pertaining to Putin’s activities while Deputy Mayor. It makes no allegations of current bribery, though says mutual leverage helps Putin “do his political bidding.”

As I said, there’s no point to have that Alfa Bank passage in a dossier on Trump. But it does serve, in its disclosure, to add a data point (albeit not a very interesting one) to the Alfa Server story that (we now know) FBI was already reviewing but which hadn’t been pitched to the press yet. In Corn’s piece, he mentions the Alfa Bank story but not the report on Putin’s ties to it. It may be in there because someone — perhaps already in possession of the Alfa Bank allegations — asked Steele to lay out more about Alfa’s ties with Putin.

Here’s one reason that’s interesting, though. Even aside from all the other reasons the Alfa story is dodgy, it was deliberately packaged for press consumption. Rather than the at least 19 servers that Trump’s spam email was pinging, it revealed just two: Alfa Bank and Spectrum Health (the latter of which got spun, anachronistically, as a DeVos organization that thus had to be tight with Trump). Which is to say, the Alfa story was dodgy and packaged by yet unknown people.

The discovery of direct collusion during the intelligence review of the Russian hack

More interesting still is what happens in the period that — according to public reporting, anyway — Steele was working for free.

Contrary to what Steele’s anger suggests, there was no real evidence of direct Russian ties to Trump outside of the famous PeeGate incident (and even if that happened, he was not a knowing participant). In the first report, there’s a claim that “the Kremlin has been feeding TRUMP and his team valuable intelligence … including Democratic presidential candidate Hillary Clinton,” but the part of the report that purportedly describes that sharing states that the Kremlin file on Hillary “had not yet been made available abroad, including to TRUMP or his campaign team,” seemingly contradicting the claim. A subsequent report describes a Presidential Administration official discussed the “possible release [of the dossier] to the Republican’s campaign team,” but without any confirmation that occurred (or even that Trump knew about it).

A subsequent report includes a claim of a “well-developed conspiracy of co-operation between [Trump’s team] and the Russian leadership managed through Paul Manafort and Carter Page. It continued to suggest a quid pro quo between the Russian hack and a shift on Ukraine and NATO policies. But in subsequent discussions of Manafort and Page’s corruption, it drops this claim entirely. Even when Michael Cohen enters the narrative, its about managing fallout over Manafort’s Ukrainian corruption.

There are claims that Trump was trying to set up business in Russia, followed by repeated descriptions of Russians not succeeding in getting him to do so.

In other words, in spite of the fact that there were some really damning allegations in the reports, the subsequent reporting didn’t necessarily back the most inflammatory aspects of them.

After the election, there’s just one report, dated December 13. That dates it to after the CIA’s leak fest reporting that Putin hacked the DNC not just to hurt Hillary and the US, but also to elect Trump. It dates to after Obama ordered an IC report on the hack. It dates to after John McCain delivered yet another copy of the dossier to FBI. It slightly precedes a Crowdstrike report (also done for free) bumping its formerly non-public “medium” confidence Russia’s GRU hacked the DNC to “high.”

And after previous reports describing Michael Cohen’s meetings as serving to cover up Manafort’s corruption and Page’s non-consummated Rosneft deal, this one alleges “the operatives involved [in the DNC hack] had been paid by both TRUMP’s team and the Kremlin,” the first such allegation. That is, over a month after the election but less than a month before its leak, the kind of detail backing direct collusion reappeared in this report.

Chuck Grassley’s questions

Which brings me back to Grassley’s letter. In addition to asking about payments, whether the agreement ever went into force, and whether and how Steele’s material served as a basis for FBI reports or even warrants, Grassley asks a question I’ve long wanted to know: Why we got this version of the memo, which is obviously just a partial selection of the complete dossier (rather like the Alfa story).

  1. How did the FBI first obtain Mr. Steele’s Trump investigation memos?  Has the FBI obtained additional memos from this same source that were not published by Buzzfeed?  If so, please provide copies.

We will actually learn a lot about the validity of the dossier if we see what other parts got dealt to the FBI, and if so whether the copy released to the public was cherry picked for the most damning information.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

FBI Still Not Counting How Often Encryption Hinders Their Investigations

The annual wiretap report is out. The headline number is that wiretaps have gone up, and judges still don’t deny any wiretap applications.

The number of federal and state wiretaps reported in 2015 increased 17 percent from 2014.   A total of 4,148 wiretaps were reported as authorized in 2015, with 1,403 authorized by federal judges and 2,745 authorized by state judges.  Compared to the applications approved during 2014, the number approved by federal judges increased 10 percent in 2015, and the number approved by state judges increased 21 percent.  No wiretap applications were reported as denied in 2015.

The press has focused more attention on the still very small number of times encryption thwarts a wiretap.

The number of state wiretaps in which encryption was encountered decreased from 22 in 2014 to 7 in 2015.  In all of these wiretaps, officials were unable to decipher the plain text of the messages.  Six federal wiretaps were reported as being encrypted in 2015, of which four could not be decrypted.  Encryption was also reported for one federal wiretap that was conducted during a previous year, but reported to the AO for the first time in 2015.  Officials were not able to decipher the plain text of the communications in that intercept.

Discussing the number — which doesn’t include data at rest — on Twitter got me to look at something that is perhaps more interesting.

Back in July 2015, 7 months into the period reported on today, Deputy Attorney General Sally Yates and FBI Director Jim Comey testified in a “Going Dark” hearing. Over the course of the hearing, they admitted that they simply don’t have the numbers to show how big a problem encryption is for their investigations, and they appeared to promise to start counting that number.

Around January 26, 2016 (that’s the date shown for document creation in the PDF) — significantly, right as FBI was prepping to go after Syed Rizwan Farook’s phone, but before it had done so — Comey and Yates finally answered the Questions for the Record submitted after the hearing. After claiming, in a response to a Grassley question on smart phones, “the data on the majority of the devices seized in the United States may no longer be accessible to law enforcement even with a court order or search warrant,” Comey then explained that they do not have the kind of statistical information Cy Vance claims to keep on phones they can’t access, explaining (over five months after promising to track such things),

As with the “data-in-motion” problem, the FBI is working on improving enterprise-wide quantitative data collection to better explain the “data-at-rest” problem.”

[snip]

As noted above, the FBI is currently working on improving enterprise-wide quantitative data collection to better understand and explain the “data at rest” problem. This process includes adopting new business processes to help track when devices are encountered that cannot be decrypted, and when we believe leads have been lost or investigations impeded because of our inability to obtain data.

[snip]

We agree that the FBI must institute better methods to measure these challenges when they occur.

[snip]

The FBI is working to identify new mechanisms to better capture and convey the challenges encountered with lawful access to both data-in-motion and data-at =-rest.

Grassley specifically asked Yates about the Wiretap report. She admitted that DOJ was still not collecting the information it promised to back in July.

The Wiretap Report only reflects the number of criminal applications that are sought, and not the many instances in which an investigator is dissuaded from pursuing a court order by the knowledge that the information obtained will be encrypted and unreadable. That is, the Wiretap Report does not include statistics on cases in which the investigator does not pursue an interception order because the provider has asserted that an intercept solution does not exist. Obtaining a wiretap order in criminal investigations is extremely resource-intensive as it requires a huge investment in agent and attorney time, and the review process is extensive. It is not prudent for agents and prosecutors to devote resources to this task if they know in advance the targeted communications cannot be intercepted. The Wiretap Report, which applies solely to approved wiretaps, records only those extremely rare instances where agents and prosecutors obtain a wiretap order and are surprised when encryption prevents the court-ordered interception. It is also important to note that the Wiretap Report does not include data for wiretaps authorized as part of national security investigations.

These two answers lay out why the numbers in the Wiretap Report are of limited value in assessing how big a problem encryption is.

But they also lay out how negligent DOJ has been in responding to the clear request from SJC back in July 2015.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

In Exchange about Clinton Email Investigation, Lynch Forcefully Reminds She Is FBI’s Boss

There’s one last exchange in Wednesday’s Senate Judiciary Committee hearing with Attorney General Loretta Lynch that deserves closer focus. It came during John Cornyn’s round of questioning.

He structured his questions quite interestingly. He started by using the example of the Apple All Writs Act order to emphasize that FBI can’t do anything without DOJ’s approval and involvement. “I just want to make sure people understand the respective roles of different agencies within the law enforcement community — the FBI and the DOJ.”

He then turned to an unrelated subject — mental health, particularly as it relates to gun crime — ending that topic with a hope he and Lynch could work together.

Then he came back to the respective roles of the FBI and DOJ. “So let me get back to the role of the FBI and the Department of Justice.”

He did so in the context of Hillary’s email scandal. He started by reminding that Hillary had deleted 30,000 emails rather than turning them over to State for FOIA review. Cornyn then raised reports that the government had offered Bryan Pagliano immunity (Chuck Grassley argued elsewhere in the hearing that that should make it easy for Congress to demand his testimony, as the WSJ has also argued). “It’s true, isn’t it, that immunity can’t be granted by the FBI alone, it requires the Department of Justice to approve that immunity.”

Lynch filibustered, talking about different types of immunities, ultimately ceding that lawyers must be involved. She refused to answer a question directly about whether they had approved that grant of immunity. Which is when Cornyn moved onto trying to get the Attorney General to admit that she would have the final decision on whether to charge anyone in the email scandal.

Cornyn: Let me give you a hypothetical. If the FBI were to make a referral to the Department of Justice to pursue a case by way of an indictment and to convene a grand jury for that purpose, the Department of Justice is not required to do so by law, are they?

Lynch: It would not be an operation of law, it would be an operation of our procedures, which is we work closely with our law enforcement partners–

Cornyn: Prosecutorial discretion–

Lynch: –it would also be consulting with the Agents on all relevant factors of the investigation, and coming to a conclusion.

Cornyn: But you would have to make to the decision, or someone else working under you in the Department of Justice?

Lynch: It’s done in conjunction with the Agents. It’s not something that we would want to cut them out of the process. That has not been an effective way of prosecuting in my experience.

Cornyn: Yeah, I’m not suggesting that you would cut them out. I’m just saying, as you said earlier, you and the FBI would do that together, correct? Just like the Apple case?

Lynch: We handle matters together of all types.

Cornyn: If the FBI were to make a referral to the Department of Justice to pursue criminal charges against Mr. Pagliano or anyone else who may have been involved in this affair, does the ultimate decision whether to proceed to court, to ask for the convening of a grand jury, and to seek an indictment, does that rest with you, or someone who works for you at the Department of Justice?

Lynch: So Senator with respect to Mr. Pagliani [sic] or anyone who has been identified as a potential witness in any case, I’m not able to comment on the specifics of that matter and so I’m not able to provide you–

Cornyn: I’m not asking you to comment on the specifics of the matter, I’m asking about what the standard operating procedure is, and it seems pretty straightforward. The FBI does a criminal investigation, but then refers the charges to the Department of Justice, including US Attorneys, perhaps in more celebrated cases goes higher up the food chain. But my simple question is doesn’t the buck stop with you, in terms of whether to proceed, to seek an indictment, to convene a grand jury, and to prosecute a case referred to you by the FBI?

Lynch: There’s many levels of review, at many stages of the case, and so I would not necessarily be involved in every decision as to every prosecutorial step to make.

Cornyn: It would be you or somebody who works for you, correct?

Lynch: Everyone in the Department of Justice works for me, including the FBI, sir.

Cornyn: I’m confident of that.

Grassley: Senator Schumer.

Schumer: Well done, Attorney General, well done.

I’m not entirely sure what to make of this: whether Cornyn was setting this up for the future, or whether he was trying to lay out Lynch’s responsibility for a decision already made. But given the reports that FBI Agents think someone should be charged (whether because of the evidence or because Hillary is Hillary), it sure felt like Cornyn was trying to pressure Lynch for her role in decisions already discussed. Indeed, I wonder whether Cornyn was responding to direct entreaties from someone at the FBI, possibly quite high up at the FBI, about Lynch’s role in this case.

Whatever he was trying to do, it may lead to some folks in the FBI getting a stern talking to from their boss, Loretta Lynch.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

FBI Can’t Have Whistleblower Protection Because It Would Encourage Too Many Complaints

The Department of Justice is undercutting Chuck Grassley’s efforts to provide FBI employees whistleblower protection. That became clear in an exchange (2:42) on Wednesday.

The exchange disclosed two objections DOJ has raised to Grassley’s FBI Whistleblower Protect Act. First, as Attorney General Loretta Lynch revealed, DOJ is worried that permitting FBI Agents to report crimes or waste through their chain of command would risk exposing intelligence programs.

What I would say is that as we work through this issue, please know that, again, any concerns that the Department raises are not out of a disagreement with the point of view of the protection of whistleblowers but again, just making sure that the FBI’s intelligence are also protected at the same time.

I suspect (though am looking for guidance) that the problem may be that the bill permits whistleblowers to go to any member of Congress, rather than just ones on the Intelligence Committees. It’s also possible that DOJ worries whistleblowers will be able to go to someone senior to them, but not read into a given program.

Still, coming from an agency that doesn’t adequately report things like its National Security Letter usage to Congress, which has changed its reporting to the Intelligence Oversight Board so as to exempt more activities, and can’t even count its usage of other intelligence programs, it seems like a tremendous problem that DOJ doesn’t want FBI whistleblowers to have protection because it might expose what FBI is doing on intelligence.

That’s sort of the point!

Especially given Grassley’s other point: apparently, DOJ is opposed to the bill because it will elicit too many complaints.

One of the issues that your department has raised is that allowing FBI employees to report wrong-doing to their chain of command could lead to too many complaints. You know? What’s wrong with too many complaints? … Seems to me you’d invite every wrong doing to get reported to somebody so it could get corrected.

Apparently, DOJ knows there are so many problems FBI employees would like to complain about that things would grind to a halt if they were actually permitted to complain.

This is the FBI! Not only a bureau that has tremendous power over people, but also one with a well-documented history of abuse. It should be the first entity that has whistleblower protection, not the last!

Grassley raised two more points. First, in April 2014, DOJ promised to issue new guidelines on whistleblowing for FBI, clarifying who employees could go to. That hasn’t been done yet.

FBI has, however, created a video about whistleblowing which is, according to what Grassley said, pretty crappy. He’s asking for both those things as well.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

The Play on the Scalia Replacement: Remember the Lame Duck

Within minutes after the public announcement of Antonin Scalia’s death, Senator Mike Lee’s flack Conn Carroll started predicting Obama would have zero chance of successfully naming a successor. After Carroll, one after another actual Senator followed that sentiment, including Chuck Grassley and Mitch McConnell, both of whom would have the ability to stall any Obama nominee. From that point, the GOP was pretty much committed, they said, to preventing any Obama nominee from being confirmed.

That led to a bunch of bad comparisons — between judges like Robert Bork who was rejected and Miguel Estrada who never got a vote — and simply going a year without acting on a President’s nominee. Even the comparison with Anthony Kennedy (who was nominated in November after two other nominees, including Bork, failed) is inapt, as he was nominated earlier than any Obama pick would be (though in a sense that fetishizes the year that would pass without a nominee).

I, like bmaz, believe Obama will pick someone fairly centrist, probably someone who has been recently confirmed by big margins.  I agree the most likely nominee will be Sri Srinivasan, who in 2013 was confirmed to the DC Circuit with a 97-0 vote — though I’m also mindful of the wisdom (given the GOP unanimity about obstructing this nominee) of picking someone who drive Democratic turnout — an African-American woman, for example. Though I highly doubt Obama will nominate Loretta Lynch, as some have suggested, not least because the fight over releasing data on HSBC’s continued money laundering will draw more attention as it moves toward appeal, which might focus attention on her role in administering the wrist slap in the face of egregious drug cartel and terrorist supporting money laundering.

After some reflection, some conservatives have suggested that the GOP would have been better served if they had simply not managed to pass Obama’s nominee, rather than making such a big stink about it.

I think that ignores how much both parties look forward to using this nominee to drive turnout — and regardless of who the respective nominees are, the GOP have a much bigger challenge in getting enough voters to turn out to elect a GOP president in November, so I’m sure they’re quite happy to have an issue that (they presumably hope) might flip some conservative Latino votes — though one likely outcome of an extended 8-member court is that the Fifth Circuit’s ruling staying Obama’s immigration orders will be upheld after a 4-4 tie on the court, which might have the opposite effect.

Furthermore, I think it ignores one other factor. Srinivasan has been predicted to be Obama’s most likely SCOTUS appointment for almost 3 years (few people consider how such predictions might have influenced Ruth Bader Ginsburg’s decision not to retire). The Republicans probably presume he’s the most likely candidate as well.

The presumption Srinivasan — or someone similar — would be the nominee easily justifies the GOP’s immediate promise they won’t confirm a nominee. That’s because they need to explain why someone they just overwhelmingly confirmed, someone who faced more opposition from the left than the right, suddenly became unacceptable.

More importantly, I presume the GOP wants to keep open the possibility of confirming Srinivasan or whatever centrist Obama appoints during the Lame Duck. Here’s why:

Barring any replay of Bush v. Gore, both sides will know on November 9 who would get to pick Scalia’s replacement if Obama’s pick failed. Both sides will also know the makeup of the Senate. Because of the demographic issues I mentioned earlier, the likely Democratic nominee, Hillary Clinton, is most likely to win. That’s not to say I think she’s necessarily the strongest candidate — even ignoring the potential the email scandal will taint close advisors like Huma Abedin or Jake Sullivan, I think it likely the economy will be crashing by November in a way that would favor Trump if he were the GOP nominee facing Hillary. But I think electoral demographics suggest the GOP will have a harder time winning this year, particularly after a year of Trump branding the GOP with bigotry.

Plus (ignoring my suspicion the economy will be crashing by November), we’re likely to have a more Democratic Senate after November. Harry Reid is the only retiring Democrat where the replacement race is currently perceived to be toss-up, whereas Marco Rubio, Mark Kirk, Kelly Ayotte, and Ron Johnson are all deemed to be likely toss-ups, if not Dem-favorable. It’s still most likely the GOP will have a slight majority, but a smaller one, in the Senate, one where people like Susan Collins could make more of a difference. But it is likely to be more Democratic.

If Hillary wins (the most likely outcome) and Democrats win the Senate (unlikely, but feasible), then the Republicans will have good reason to want to confirm an Obama nominee perceived to be centrist. Whereas Srinivasan looks far worse than Scalia to the Republicans, he would all of a sudden look far preferable to a Hillary choice with the time to wait out the Senate. The GOP would have time between November 9 and the Christmas break to confirm whatever Obama nominee has been languishing.

In other words, I think the GOP have provided a way to stall someone (like Srinivasan) they have recently confirmed, while leaving the possibility of confirming that person if November makes it likely the next nominee will be more liberal.

One more thing: Commentary on this process has presumed that McConnell and Grassley (and Obama) learned of Scalia’s death when we all did. I would hope that Obama, at least, got word well before that, particularly given the involvement of at least the US Marshals and according to some reports the FBI. But I also wouldn’t leave out the possibility that one of the 39 other still unidentified guests at the ranch this weekend gave the Republican leadership a heads up as soon as a hearse showed up. So it’s possible that what looked like quick knee-jerk response on the part of Republican leadership was instead more considered, along the lines I’ve just laid out.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

District Attorneys Use Spying as Cover To Demand a Law Enforcement Back Door

In response to a question Senate Intelligence Committee Chair Richard Burr posed during his committee’s Global Threat hearing yesterday, Jim Comey admitted that “going dark” is “overwhelmingly … a problem that local law enforcement sees” as they try to prosecute even things as mundane as a car accident.

Burr: Can you, for the American people, set a percentage of how much of that is terrorism and how much of that fear is law enforcement and prosecutions that take place in every town in America every day?

Comey: Yeah I’d say this problem we call going dark, which as Director Clapper mentioned, is the growing use of encryption, both to lock devices when they sit there and to cover communications as they move over fiber optic cables is actually overwhelmingly affecting law enforcement. Because it affects cops and prosecutors and sheriffs and detectives trying to make murder cases, car accident cases, kidnapping cases, drug cases. It has an impact on our national security work, but overwhelmingly this is a problem that local law enforcement sees.

Much later in the hearing Burr — whose committee oversees the intelligence but not the law enforcement function of FBI, which functions are overseen by the Senate Judiciary Committee — returned to the issue of encryption. Indeed, he seemed to back Comey’s point — that local law enforcement is facing a bigger problem with encryption than intelligence agencies — by describing District Attorneys from big cities and small towns complaining to him about encryption.

I’ve had more District Attorneys come to me that I have the individuals at this table. The District Attorneys have come to me because they’re beginning to get to a situation where they can’t prosecute cases. This is town by town, city by city, county by county, and state by state. And it ranges from Cy Vance in New York to a rural town of 2,000 in North Carolina.

Of course, the needs and concerns of these District Attorneys are the Senate Judiciary Committee’s job to oversee, not Burr’s. But he managed to make it his issue by calling those local law enforcement officials “those who complete the complement of our intelligence community” in promising to take up the issue (though he did make clear he was not speaking for the committee in his determination on the issue).

One of the responsibilities of this committee is to make sure that those of you at at the table and those that comp — complete the complement of our intelligence community have the tools through how we authorize that you need. [sic]

Burr raised ISIS wannabes and earlier in the hearing Comey revealed the FBI still hadn’t been able to crack one of a number of phones owned by the perpetrators of the San Bernardino attack. And it is important for the FBI to understand whether the San Bernardino attack was directed by people in Saudi Arabia or Pakistan that Tashfeen Malik associated with before coming to this country planning to engage in Jihad.

But only an hour before Jim Comey got done explaining that the real urgency here is to investigate drug cases and car accident cases, not that terrorist attack.

The balance between security, intelligence collection, and law enforcement is going to look different if you’re weighing drug investigations against the personal privacy of millions than if you’re discussing terrorist communications, largely behind closed doors.

Yet Richard Burr is not above pretending this about terrorism when it’s really about local law enforcement.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.