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

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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.

The WikiLeaks Deterrent Theory, AKA the Arbitrary Official Secrets Act

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Three outlets yesterday — first the WaPo, then CNN, then NYT — reported that DOJ is considering charges against Julian Assange and WikiLeaks. The discussion of what charges, and for what leaks, differs between the reports.

While mentioning the Vault 7 leaks, WaPo also focuses on Chelsea Manning’s leaks and Assange’s discussions about how to gain access.

In March, WikiLeaks published thousands of files revealing secret cyber-tools used by the CIA to convert cellphones, televisions and other ordinary devices into implements of espionage. The FBI has made significant progress in the investigation of the leak, narrowing the list of possible suspects, officials said. The officials did not describe WikiLeaks’ exact role in the case beyond publishing the tools.

Prosecutors are also reexamining the leaks from Chelsea Manning, the Army soldier who was convicted in 2013 of revealing sensitive diplomatic cables. Manning chatted with Assange about a technique to crack a password so Manning could log on to a computer anonymously, and that conversation, which came up during Manning’s court-martial, could be used as evidence that WikiLeaks went beyond the role of publisher or journalist.

Alexa O’Brien tweeted out some thoughts and links to what any further prosecution of the Manning leak might entail.

CNN, which is the most certain charges have already been drawn up, explains that DOJ believes WikiLeaks’ actions changed in nature with Edward Snowden.

The US view of WikiLeaks and Assange began to change after investigators found what they believe was proof that WikiLeaks played an active role in helping Edward Snowden, a former NSA analyst, disclose a massive cache of classified documents.

I think that may be demonstrably true of Sarah Harrison, who helped a fugitive escape. But I’m not sure the US has equally compelling evidence against Assange.

Perhaps the most interesting discussion comes from NYT, which discusses the ongoing debate — with “senior Justice Department officials … pressuring prosecutors” over what is realistic and what authorities actually want, which is an Espionage conviction.

The official, speaking on the condition of anonymity because the details of the discussions remain secret, said senior Justice Department officials had been pressuring prosecutors in the Eastern District of Virginia to outline an array of possible charges against Mr. Assange.

But the official said prosecutors remained skeptical that they could pursue the most serious charges, of espionage, with regard to the documents Mr. Assange disclosed years ago with the help of an Army intelligence analyst, Chelsea Manning. Ms. Manning was convicted and sent to prison, but President Barack Obama commuted her sentence in January.

Given how few people Trump has confirmed into positions in government, these outlets should be a bit more descriptive. In that passage, for example, and the following from WaPo, what does “senior justice department official” mean when US Attorney Dana Boente is (as I’ve noted but none of these stories do) also acting DAG and acting AG for any Russia-related charges.

Prosecutors in recent weeks have been drafting a memo that contemplates charges against members of the WikiLeaks organization, possibly including conspiracy, theft of government property or violating the Espionage Act, officials said. The memo, though, is not complete, and any charges against members of WikiLeaks, including founder Julian Assange, would need approval from the highest levels of the Justice Department.

Would Boente be approving charges filed under Boente’s name?

Though that may not matter. Rod Rosenstein, who will become DAG shortly, has himself pursued excessive charges in leak cases, both against Thomas Drake and Hal Martin.

Perhaps the most interesting claim is that the FBI thought indicting Assange — who likely won’t be prosecuted in any case unless Ecuador suddenly changes their mind about their house guest — would provide some kind of deterrent effect.

Officials have said that the F.B.I. supports prosecuting Mr. Assange. Several years ago, the agency sent a series of documents to the Justice Department outlining charges that investigators claimed to have evidence to support. At the time, F.B.I. counterintelligence agents believed that charging Mr. Assange would deter him from posting new troves of American documents.

I think you’d have to be daft to think prosecuting Assange would deter him from posting more, assuming this happened while he was in the Ecuadoran Embassy. Prosecuting him would only mean he’d have less to lose — and, frankly, more reason to post things that might please America’s adversaries, like Russia.

But it might serve as deterrence for other publishing outlets that aren’t holing up in an Embassy. Short of some really distinguishing actions (and Harrison’s might amount to that in the Snowden case), indicting Assange would put everyone else with a SecureDrop on notice that they, too, might be prosecuted. Surely, DOJ would pick and choose who gets prosecuted. They might choose other easily easily targeted people — people who are gay, people who no longer live in this country, people who have too many dogs — to similarly make examples of (though pity the fool that challenges Glenn Greenwald’s First Amendment rights.

DOJ wants to start cutting away at the First Amendment. All the better for them, if in the name of prosecutorial discretion, Jeff Sessions’ DOJ could pick and choose which publishers’ speech gets curtailed.

Dana Boente Still Has a Job and Why That’s of Interest for WikiLeaks

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WaPo has a weird story reporting, erroneously, that Donald Trump has no US Attorneys.

Attorney General Jeff Sessions is making aggressive law enforcement a top priority, directing his federal prosecutors across the country to crack down on illegal immigrants and “use every tool” they have to go after violent criminals and drug traffickers.

But the attorney general does not have a single U.S. attorney in place to lead his tough-on-crime efforts across the country. Last month, Sessions abruptly told the dozens of remaining Obama administration U.S. attorneys to submit their resignations immediately — and none of them, or the 47 who had already left, have been replaced.

“We really need to work hard at that,” Sessions said when asked Tuesday about the vacancies as he opened a meeting with federal law enforcement officials. The 93 unfilled U.S. attorney positions are among the hundreds of critical Trump administration jobs that remain open.

While it is true that Trump had Sessions ask for the remaining 93 US Attorneys’ resignations, he subsequently announced he was keeping Rod Rosenstein (who contrary to WaPo’s claim that he “served as U.S. attorney for Maryland” is still there, and who will become Deputy Attorney General as soon as he’s confirmed in the next few weeks) and Dana Boente (who is US Attorney for EDVA but also acting AG for the Russia investigation).

Both Boente and Rosenstein made press announcements today; the guys whose custody they announced probably would prefer if they weren’t on the job.

I guess the WaPo wanted to suck up to Jeff Sessions and so didn’t consider the possibility that we’re better off with 91 US Attorney vacancies than 91 racist hacks like Sessions, pushing through his regressive policies.

Anyway, since we’ve established that Boente still has a job and in fact oversees the Russia investigation, I thought I’d point out something I was considering during last week’s threats from CIA Director Mike Pompeo against WikiLeaks.

During Pompeo’s comments at CSIS last week, he said,

Julian Assange and his kind are not the slightest bit interested in improving civil liberties or enhancing personal freedom. They have pretended that America’s First Amendment freedoms shield them from justice. They may have believed that, but they are wrong.

[snip]

[W]e have to recognize that we can no longer allow Assange and his colleagues the latitude to use free speech values against us. To give them the space to crush us with misappropriated secrets is a perversion of what our great Constitution stands for. It ends now.

As some people observed, Pompeo’s comments are inconsistent with the practice of Obama’s DOJ, particularly under Holder. While Holder would have happily prosecuted Julian Assange for his role in release of files leaked by Chelsea Manning, he realized that if he did, he’d be criminalizing stuff that the press does.

Pompeo, at least, seems to disagree.

And the reason why Boente’s continued tenure as Eastern District US Attorney — and his role overseeing the Russian investigation — is that he has also been overseeing the ongoing investigation into Wikileaks since 2013.

Consider the fact that Assange’s actions of late may be more incriminating than those involving Manning (even assuming Assange can credibly claim he has no way of knowing whether Russia is responsible for the DNC hack, Assange’s comments about both the DNC and the Vault 7 leak suggest more coordination than in the past). Then add in the fact that Boente, for the next few weeks anyway, might be able to claim to be both US Attorney and Acting AG on any role by WikiLeaks in the publication of the DNC emails. And it raises the possibility that Boente would use this window to indict Assange.

I think that’s unlikely. Moreover, while an indictment would give the US reason to pressure Ecuador even more to boot Assange, it’s not clear they would. But it’s possible.

The Friday Afternoon Massacre: Who Is Overseeing the Trump Investigation?

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Update: After refusing to resign, Preet has now officially been fired. It remains to be seen whether there’s some underlying legal reason to force Trump to do this, or whether it’s press grand-standing.

Dana Boente, the US Attorney for Eastern District of VA and Acting Deputy Attorney General since Trump fired Sally Yates, just called the other US Attorneys and told them to submit their resignations effective immediately.

The press seems most interested in whether this order covers media hound Preet Bharara, US Attorney for Southern District of NY. Preet is leading an investigation into NY political scandals affecting key Democrats, and Trump had told him he would be kept on (Preet’s political godfather is Chuck Schumer, which may have had something to do with that).

But I’m far more interested in whether Boente himself is resigning to himself.

In addition to serving as Acting DAG, since Jeff Sessions recused himself from any investigation into Trump last week, Boente has been in charge of that investigation. So if Boente resigned to himself this afternoon, it would mean no one was in charge of the investigation. Plus, Boente also oversees several other interesting investigations, notably the long-standing investigation of Wikileaks.

Mind you, Rod Rosenstein, at least until this afternoon US Attorney for MD, is all teed up to be confirmed as DAG. Except Richard Blumenthal has said he would hold up that investigation until a special counsel was appointed to investigate Trump. With no DAG and no one in charge of the Trump investigation (the USAs in WDPA, DC, and NDCA, who also have a piece of the investigation presumably also just resigned), Blumenthal might be pressured to relent on that front.

Update: NBC finally got some clarity on Boente — he (and Rosenstein) will stay on. Which I guess means Preet is out.