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Why Are Republicans Still Squealing about FISA Applications If HPSCI Report Cedes Carter Page Concerns?

Republicans in Congress continue to make fairly breath-taking demands on Rod Rosenstein and Christopher Wray in what seems to be an attempt to create a bogus claim of non-responsiveness that Trump can use to fire one or both of them.

First there was the demand that the House Intelligence Committee get all of FBI’s non-grand jury records on the Mueller investigation, a demand Paul Ryan backed. Then there was the push to publish the Nunes memo over DOJ’s objections. More recently, after Wray’s doubling the number of FBI staffers (to 54) in an attempt to meet a Bob Goodlatte document deadline for FISA, Hillary investigation, and McCabe firing materials proved insufficient, Jeff Sessions has put Chicago’s US Attorney, John Lausch, in charge of the response. As with Sessions’ selection of Utah US Attorney John Huber to review other GOP demands, Sessions seems to be giving himself and his deputies cover from fairly ridiculous GOP demands.

Nevertheless, such concessions have not entirely sheltered Trump’s main targets from the kinds of complaints that might expose Robert Mueller’s investigation below them. Mark Meadows, one of the lead attack dogs in this congressional obstruction effort, even suggested Congress might impeach Rosenstein for failing to meet a 2-week deadline on a Bob Goodlatte subpoena.

Through it all, the complaints that FBI used the Steele dossier as one piece of evidence in Carter Page’s FISA application, persist. This, in spite of the fact that Page had been under FISA surveillance years before, and in spite of the fact that all sides agree that the counterintelligence investigation into Trump’s aides started in response to the George Papadopoulos tip from Australia.

This, in spite of the passage from the Schiff memo (including one redacted sentence) that seems to assert that FBI considered Page an on-going counterintelligence concern.

DOJ cited multiple sources to support the case for surveillance Page — but made only narrow use of information from Steele’s sources about Page’s specific activities in 2016, chiefly his suspected July 2016 meetings in Moscow with Russian officials. [entire short sentence redacted] In fact, the FBI interviewed Page in March 2016 about his contact with Russian intelligence, the very month candidate Donald Trump named hi a foreign policy advisor.

And the Schiff memo is consistent with what Sheldon Whitehouse (among the few other people who had read the application at the time) said.

Whitehouse: I’ve got to be careful because some of this is still classified. But the conclusion that I’ve reached is that there was abundant evidence outside of the Steele dossier that would have provoked any responsible FBI with a counterintelligence concern to look at whether Carter Page was an undisclosed foreign agent. And to this day the FBI continues to assert that he was a undisclosed Russian foreign agent.

Importantly, however, it’s no longer just former prosecutors in the Democratic party who seem to confirm that Page was a real counterintelligence concern, and therefore legitimately a FISA target. At least, that’s what these two passages from the GOP House Intelligence Report suggest.

If you’re complaining that the Intelligence Community didn’t inform Trump about that members of his campaign team were “assessed to be potential counterintelligence concerns,” (and this likely includes Paul Manafort, as well as Page), then you can’t very well complain if FBI obtained a FISA warrant once those counterintelligence concerns left the campaign team. Hell, you’re practically inviting the FBI to obtain such a warrant while the counterintelligence concern is on the campaign, to help warn the candidate.

I know this is a bit to ask, but the GOP should not be able to have it both ways, to try to discredit the Trump investigation by pointing to the use of the Steele dossier in targeting Page, even while demanding FBI should have shared what it knew about Page because he posed a risk to Trump.

The Trump Toadies Who Are Worried about Being Unmasked

Last week, Zoe Tillman noted this FOIA lawsuit from attorney Gene Schaerr, working on behalf of someone who wants to remain anonymous “at present,” suing to obtain records on the unmasking of Trump campaign and transition officials. The thing is, Shaerr isn’t just asking for unmasking records generally.

The odd collection of people being FOIAed

He’s asking for unmasking records pertaining to a really curious group of people:

  1. Steve Bannon
  2. Rep. Lou Barletta
  3. Rep. Marsha Blackburn
  4. Florida Attorney General Pam Bondi
  5. Rep. Chris Collins
  6. Rep. Tom Marino
  7. Rebekah Mercer
  8. Steven Mnuchin
  9. Rep. Devin Nunes
  10. Reince Priebus
  11. Anthony Scaramucci
  12. Peter Thiel
  13. Donald Trump Jr.
  14. Eric Trump
  15. Ivanka Trump
  16. Jared Kushner
  17. Rep. Sean Duffy
  18. Rep. Trey Gowdy
  19. Rep. Dennis Ross
  20. Pastor Darrell C. Scott
  21. Kiron Skinner

Some of these would be obvious, of course: Trump’s spawn, Bannon, Priebus, and Mnuchin. I’m really interested to see Rebekah Mercer (especially given the more we learn on Cambridge Analytica). Mooch is there. The litigious Peter Thiel is there (making him at least a reasonable candidate to be paying for this lawsuit, except for reasons I lay out below).

Mike Flynn, the one person we know to have been unmasked, is not in there (which is particularly odd given all the efforts to find some way to unring Flynn’s guilty plea, though that came after this FOIA was filed).

Then there are the eight members of Congress (in addition to the corrupt FL AG, Pam Bondi, who helped Trump out of a legal pinch in FL after Trump gave her a donation).

Lou Barletta, who’s a loud opponent of “illegal immigration,” a member of the Homeland Security Committee, and who, not long after this FOIA was first filed, prepared a challenge to PA’s Bob Casey in the Senate last year.

Marsha Blackburn, who works on a number of data issues in Congress, and is running to replace Bob Corker as TN Senator. Blackburn worked closely with Tom Marino to shield pharma and pill mills from DEA reach.

Chris Collins from upstate NY. His most interesting committee assignment is on Energy and Commerce, though he has worked on broadband issues.

Tom Marino, former US Attorney for Pennsyltucky who is on the Judiciary Committee. Trump tried to make him the Drug Czar, until it became clear he had pushed through a bill that hurt DEA’s ability to combat the opioid epidemic.

Devin Nunes, whose efforts to undermine the Mueller investigation have been epic, and who first manufactured the unmasking scandal. He’d be a great candidate to be Schaerr’s client, except he would probably just leak this information, which he has already seen.

Sean Duffy, a WI congressman who is chair of the investigations subcommittee of the Financial Services committee, and has been an opponent of CFPB.

Trey Gowdy took over as Chair of the Oversight Committee last year and also serves on the Judiciary and Intelligence Committees. Because of those appointments, even without being designated by Devin Nunes to take the lead on the Mueller pushback, he would have already had the most visibility on the Mueller investigation. But because Nunes put him in charge of actually looking at the intelligence, he is the single Republican who has seen the bulk of the Mueller investigative materials. During Nunes week, he announces his retirement suddenly, and has warned about the seriousness of the Mueller investigation, and he just gave a crazy interview to Fox News (which I’ll return to).

Dennis Ross, from FL, serves on the Financial Services committee.

On top of the Republicans, the list includes two of the few African Americans (with David Clarke, Omarosa, and Tim Scott) who supported Trump.  Darrell Scott was head of a Michael Cohen invented diversity group hastily put together in April 2016. Kiron Skinner is a legit scholar of Reagan who teaches at Carnegie Mellon and has a bunch of other appointments.

As I said, aside from the big obvious players, this list is a curious collection. Of note, however, four people on it should have a sound understanding of how NSA spying and FISA work: Thiel, Nunes, Gowdy, and Marino. But (again aside from the big players), the international ties of most of these people (Thiel and Skinner are big exceptions) are not readily apparent.

The whack understanding of FISA laid out on the complaint

I’m interested in the FISA knowledge of some people named in this list because of the crazy depiction of FISA that the complaint lays out.

The complaint highlights two departments of NSA, claiming they’re the ones that deal with improper use of intelligence (but does not include the Inspector General).

On information and belief, at least two departments within the NSA handle complaints regarding the improper use of intelligence. These departments are known publicly by the codes “S12,” a code name apparently referring to the agency’s Information Sharing Services authority, and “SV,” a code name apparently referring to the agency’s Oversight and Compliance authority.

As part of the FOIA to NSA, Schaerr asked for anything submitted to these departments.

All reports made to S12 and SV regarding improper dissemination of any individual listed in Question 2, above. See National Security Agency, United States Signals Intelligence Directive 18, § 7.5 (January 25, 2011).

That’s an oddly specific request, unless whoever is behind this request knows there are reports there.

That might suggest Nunes, Gowdy, or Marino is behind the request. But then consider how unbelievably wrong the complaint gets FISA.

After introducing FISA, it turns exclusively to Section 702, which is odd because the unmasking pseudo-scandal has thus far been based off the unmasking of individual orders.

Plaintiff’s requests in this case concern the Defendants’ use of the Foreign Intelligence Surveillance Act of 1978 (FISA).1 Section 702 of FISA (“Section 702”) empowers the Attorney General and the Director of National Intelligence to jointly authorize “the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.” 50 U.S.C. § 1881a(a) (emphasis added). Section 702 expressly forbids use of this surveillance process to target persons who are either “United States persons” or located “inside the United States.” Id. at 1881a(b).

The complaint then makes three utterly false statements about how labor is divided between the FBI, NSA, and CIA.

14. The FBI collects data on outgoing communications, i.e., from persons in the United States to persons outside the United States.

15. The NSA collects data on incoming communications, i.e., from persons outside the United States to persons inside the United States.

16. The CIA, like the FBI and NSA, analyzes the information that comes from the FBI’s and NSA’s data collection. Unlike the other agencies, the CIA uses the information to engage in international intelligence operations.

The FBI collects on domestic targets, which can include incoming and outgoing comms, plus anything domestic (such as Sergey Kislyak’s calls across town to Mike Flynn; update — the December 29 calls would have been from DC to Dominican Republic, where Flynn was vacationing). The NSA likewise collects incoming and outgoing comms, as well as stuff that takes place entirely overseas (though very little of the latter is done under 702). Both the other agencies, in addition to CIA, use FISA information to engage in international intelligence operations.

The complaint then claims, in contradiction to a bunch of public information, that minimization equates to completely anonymizing US person data.

Section 702 also requires that foreign intelligence surveillance be conducted consistently with “minimization procedures.” Id. § 1881a(e)(1). These procedures are designed to “minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons,” but in a manner still “consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information.” Id. § 1801(h)(1). As relevant here, minimization procedures must be designed to ensure the anonymity of United States persons who may be incidentally surveilled. Id. § 1801(h)(1), (2).

This comment comes immediately after a paragraph on finished intelligence reports, so this may be an incorrect statement of what masking is.

It then makes a claim about how data gets circulated that entirely ignores the sharing of raw data under 702, and further makes claims relying on this article that aren’t actually supported by the article (admittedly, the article doesn’t describe the sharing of raw data, but its focus in primarily on traditional FISA).

Generally, original raw intelligence is not circulated to other agencies; instead, intelligence reports are created and circulated internally. See, e.g., Gregory Korte, What is ‘unmasking?’ How intelligence agencies treat U.S. citizens, USA Today, (Apr. 4, 2017; 2:14 p.m.), https://www.usatoday.com/story/news/politics/ 2017/04/04/ what-unmasking-how-intelligence-agencies-treat-us-citizens/100026368. In the process of summarizing the intelligence, agencies exclude the names of U.S. citizens from the reports, referring to them instead with identifiers like “U.S. Person 1.” Id.

The complaint then describes what sounds like a muddle of upstream collection and back door searches, but gets both wrong.

The NSA also has the ability to search the internet data it collects by entering the name of an individual into a database search tool. This process is known as “upstreaming” and has the effect of creating additional raw intelligence that may contain the names of American persons. Such intelligence is also subject to the usual masking requirements and procedures.

This is wrong because upstream collection uses selectors, not names, whereas back door searches, which can use a name, are done by all three agencies. Such intelligence would not necessarily be masked at FBI if it made it into an investigative report.

The complaint then points to that godawful Circa report that itself muddles the difference between 702 and 704/705b to claim that they were upstream violations during the campaign cycle.

News reports—as well as a declassified Foreign Intelligence Surveillance Court (FISC) opinion—also note that some Americans had their names upstreamed, in violation of internal policies, during the 2016 election cycle, which the opinion described as a “serious Fourth Amendment issue.” See Declassified FISC Court opinion at 19-20, available at http://bit.ly/FISCopApril2017; Circa News, Obama intel agency secretly conducted illegal searches on Americans for years, May 23, 2017), https://www.circa.com/story/2017/05/23/politics/obama-intel-agencysecretly-conducted-illegal-searches-on-americans-for-years.

The violations in question, while serious, actually involve back door searches on upstream collection, and to the extent the searches were done on 704/705b targets, would only have happened were there an individualized FISA order against one of the named people (in fact, NSA’s back door searches on US persons are generally limited to people with individualized orders, those who may be targets of a foreign power, or urgent searches following a terrorist attack or similar situation).

In short, it’s a remarkable garble of how FISA really works. That doesn’t exclude Nunes’ involvement (I would hope both Marino and Gowdy have a better understanding of FISA than this, but don’t guarantee it). But it seems to be an attempt to declassify stuff it knows about, even while it exhibits a remarkable misunderstanding of what it’s talking about.

So why are all these Trump toadies worried about being unmasked

All of which brings me to the puzzle: what the hell is his anonymous client up to? Why is the client concerned about this specific selection of transition officials, but not (say) Mike Flynn?

Update: Laura Rozen notes that this list is the list provided here, except with this chunk taken out, and with some weird alpha order going on.

 

The Significance of the January 12 Reauthorization of Carter Page’s FISA Order

I’d like to riff on a small but significant detail revealed in the Schiff memo. This paragraph adds detail to the same general timeframe for the orders obtained against Page laid out in the Nunes memo: the first application approved on October 21, with reauthorizations in early January, early April, and late June.

Republican judges approved the Carter Page FISA orders

The passage also narrows down the judges who approved the orders, necessarily including FISC’s sole Reagan appointee Raymond Dearie and FISC’s sole Poppy appointee Anne Conway, plus two of the following W appointees:

 

  • Rosemary Collyer (worst FISC judge ever)
  • Claire Eagan (OK, she may be worse than Collyer)
  • Robert Kugler
  • Michael Mosman (a good one)
  • Dennis Saylor (also good)

I won’t dwell on this here, but it means the conspiracy theory that Obama appointee Rudolph Contreras approved the order, and because of that recused in the Flynn case, is false.

The first reapplication came days after the dossier and a second Isikoff article came out

Back to the timing. The footnotes provide the dates for two of the other applications: June 29 (in footnotes 12, 14, 15, 16) and January 12 (footnote 31), meaning the third must date between April 1 and 12 (the latter date being 90 days after the second application).

As I laid out here, the timing of that second application is critical to the dispute about whether FBI handled Michael Isikoff’s September 23 article appropriately, because it places the reapplication either before or after two key events: the publication of the Steele dossier on January 10 and Isikoff’s publication of this story on January 11. Isikoff’s January article included a link back to his earlier piece, making it fairly clear that Steele had been his source for the earlier article. The publication of that second Isikoff piece should have tipped off the FBI that the earlier article had been based on Steele (not least because the second Isikoff piece IDs Steele as an “FBI asset,” which surely got the Bureau’s attention).

FBI didn’t respond to Isikoff in time for the second application

Now, you could say that FBI should have immediately reacted to the Isikoff piece by alerting the FISC, but that’s suggesting bureaucracies work far faster than they do. Moreover, the application would not have been drafted on January 12. Except in emergency, the FISC requires a week notice on applications. That says the original application would have been submitted on or before January 5, before the dossier and second Isikoff piece.

FBI appears to have dealt with the Isikoff article interestingly. The body of the Schiff memo explains that Isikoff’s article, along with another that might be either Josh Rogin’s or Julia Ioffe’s articles from the time period, both of which cite Isikoff (Rogin’s is the only one of the three that gets denials from Page directly), were mentioned to show that Page was denying his Moscow meetings were significant.

That redacted sentence must refer to the January 12 application, because that footnote is the only footnote citing that application and nothing else in the paragraph discusses it.

An earlier passage describes the first notice to FISC, in that same January 12 application, “that Steele told the FBI that he made his unauthorized media disclosure because of his frustration at Director Comey’s public announcement shortly before the election that the FBI reopened its investigation into candidate Clinton’s email use.”

It’s possible that redacted sentence distinguishes what Grassley and Graham did in their referral of Steele. The first application stated that, “The FBI does not believe that [Steele] directly provided this information to the press.” Whereas the January reapplication stated in a footnote that the FBI, “did not believe that Steele gave information to Yahoo News that ‘published the September 23 News Article.” Within a day or so, the FBI should have realized that was not the case.

So it’s true FBI was denying that the September Isikoff article was based off Steele reporting after the time they should have known it was, but that can probably best be explained by the application timelines and the lassitude of bureaucracy.

The submission of the preliminary second application likely coincides with the Obama briefing on the Russian threat

As noted above, the second application would have been submitted a full week earlier than it otherwise would have had to have been given the 90-day term on FISA orders targeting Americans. That means the preliminary application was probably submitted by January 5. Not only would that have been too early to incorporate the response to the dossier, most notably the second Isikoff piece, but it even preceded Trump’s briefing on the Russian tampering, which took place January 6.

It’s also interesting timing for another reason: it means FBI may have submitted its reapplication targeting Page on the same day that Jim Comey and Sally Yates briefed Obama, Susan Rice, and Joe Biden, in part, on the fact that Putin’s mild response to the election hack sanctions rolled out in late December arose in response to requests from Mike Flynn to Sergey Kislyak. As I addressed here, that briefing has become a subject of controversy again, as Chuck Grassley and Lindsey Graham tried to suggest that the Steele dossier may have contributed to the investigation of Flynn.

But contrary to what the Republican Senators claimed in their letter to Rice on the subject, Rice claims the Steele dossier and the counterintelligence investigation never came up.

The memorandum to file drafted by Ambassador Rice memorialized an important national security discussion between President Obama and the FBI Director and the Deputy Attorney General. President Obama and his national security team were justifiably concerned about potential risks to the Nation’s security from sharing highly classified information about Russia with certain members of the Trump transition team, particularly Lt. Gen. Michael Flynn. In light of concerning communications between members of the Trump team and Russian officials, before and after the election, President Obama, on behalf of his national security team, appropriately sought the FBI and the Department of Justice’s guidance on this subject. In the conversation Ambassador Rice documented, there was no discussion of Christopher Steele or the Steele dossier, contrary to the suggestion in your letter.

Given the importance and sensitivity of the subject matter, and upon the advice of the White House Counsel’s Office, Ambassador Rice created a permanent record of the discussion. Ambassador Rice memorialized the discussion on January 20, because that was the first opportunity she had to do so, given the particularly intense responsibilities of the National Security Advisor during the remaining days of the Administration and transition. Ambassador Rice memorialized the discussion in an email sent to herself during the morning of January 20, 2017. The time stamp reflected on the email is not accurate, as Ambassador Rice departed the White House shortly before noon on January 20. While serving as National Security Advisor, Ambassador Rice was not briefed on the existence of any FBI investigation into allegations of collusion between Mr. Trump’s associates and Russia, and she later learned of the fact of this investigation from Director Comey’s subsequent public testimony. Ambassador Rice was not informed of any FISA applications sought by the FBI in its investigation, and she only learned of them from press reports after leaving office.

Grassley and Graham appear to have confused the IC investigation with the counterintelligence investigation, only the latter of which incorporated the Steele dossier.

In any case, one reason the apparent coincidence between the January 5 briefing and the reapplication process is important is it suggests it was also pushed through a week early to provide room for error with the inauguration. If a FISA order on January 19 goes awry, it might not get approved under President Trump. But if anything happened to that application submitted around January 5, it’d be approved with plenty of time before the new Administration took over.

Intelligence from Page’s FISA collection helped support the government’s high confidence that Russia attempted to influence the election

Here’s one of the most interesting details in the Schiff memo, however. This passage describes that the wiretap on Page obtained important intelligence, though it won’t tell us what it is.

That redacted footnote, number 14, describes that the redacted intelligence is part of what gave the Intelligence Community “high confidence”

Admittedly, this footnote, with its citation to the October and June applications, is uncertain on this point. But for the wiretap on Page to have supported the December ICA assessment of the Russian tampering, then it would have had to have involved collection from that first period.

If that’s right, then it suggests the reason the Obama Administration may have applied for the order renewal early, the same day Comey and Yates briefed Obama on the ICA and Flynn, is because something from that order (possibly targeting Page’s December trip to Moscow) added to the IC’s certainty that the Russians had pulled off an election operation.

Schiff Memo Reveals that Mifsud Specifically Told Papadopoulos Russia Would Release Hillary Emails to Help Trump Campaign

“If it’s what you say I love it” – Don Jr., gleefully accepting Russian dirt after George Papadopoulos had been told Russia would release emails to help the campaign

HPSCI just released the Schiff memo responding to the Nunes memo. Mostly, it’s underwhelming.

But there is one piece of important news. The memo provides more details about what George Papadopoulos told Australian Ambassador, Alexander Downer, about the Russian outreach via Joseph Mifsud. That passage reads:

George Papadopoulos revealed [redacted] that individuals linked to Russia, who took interest in Papadopoulos as a Trump campaign foreign policy adviser, informed him in late April 2016 that Russia [two lines redacted]. Papadopoulos’s disclosure, moreover, occurred against the backdrop  of Russia’s aggressive covert campaign to influence our elections, which the FBI was already monitoring. We would later learn in Papadopoulos’s plea that the information the Russians could assist by anonymously releasing were thousands of Hillary Clinton emails.

While the description of what Papadopoulos said is redacted, the context makes it clear (as does this Adam Schiff tweet) that Papadopoulos didn’t tell Downer specifically what Russia had told him was available, only that they could release it to help Trump.

But that Mifsud told Papadopoulos that the Russians were thinking of releasing it to help Trump is news, important news. It means the discussions of setting up increasingly senior levels of meetings between Russia and the Trump campaign took place against the offer of help in the form of released kompromat.

Which, particularly given the evidence that Papadopoulos shared that information with the campaign, makes the June 9 meeting still more damning.

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

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

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

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

[snip]

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

That much I can agree with him on.

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

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

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

Let’s unpack this passage closely.

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

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

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

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

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

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

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

On the Grassley-Feinstein Dispute

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

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

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

Whitehouse And related documents, yes. The package.

Bharara: And you’ve gone to read them?

Whitehouse: I’ve gone to read them.

Bharara: You didn’t send Trey Gowdy?

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

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

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

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

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

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

Did Christopher Steele lie?

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

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

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

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

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

Did Christopher Steele lie to the FBI?

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

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

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

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

1023s are Confidential Human Source reports.

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

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

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

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

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

[snip]

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

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

Does it harm the viability of the FISA application?

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

What about the Michael Isikoff reference?

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

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

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

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

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

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

Let’s do some math.

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

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

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

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

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

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

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

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

Does this matter at all to the Mueller inquiry?

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

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

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

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

 

George Papadopoulos’ Social Media Call Records Were Not Subpoenaed Until After His Interviews

I’ve been tracking questions about how aggressively (or not) the FBI investigated George Papadopoulos after receiving a tip, in July 2016, that he had heard the Russians bragging about having dirt in the form of emails from Hillary Clinton in April 2016. In this post, I showed that, given that they didn’t know about Ivan Timofeev until after his interviews, they could not even have started pursuing a warrant until after the first interview, at best (and didn’t know about the existence communications over a Section 702 provider with Timofeev until after both). In this post, I suggested that it looked like the FBI first obtained a preservation order for the device GSA had on him on March 9, 21 days after his second interview.

Since then two details have come out. First, this Peter Strzok/Lisa Page SMS text highlighted by Matt Tait suggests that as late as June 6, 2017, the Special Counsel’s office was still debating whether searching Section 702 presented a litigation risk (meaning Trump’s buddies are getting far more protection than the rest of us might be).

Then there’s a point that Eric Swalwell made in Monday’s hearing debating whether or not to reveal the Schiff memo. In response to Michael Turner’s suggestion that there was no evidence of “collusion” between Trump and Russia, Swalwell pointed out that only after the FBI challenged Trump aide claims did the Bureau find evidence to support a conspiracy.

George Papadopoulos I think is the canary in the coal mine. He was interviewed January 27, 2017, by FBI. He lied about his contacts over in London with the professor. He was interviewed again in February, and he lied. Only when the FBI showed the willingness to subpoena his Skype and Facebook logs did he come around 6 months later.

This makes it clear that the FBI had not even obtained call records from Papadopoulos (via an NSL or a subpoena) before the second interview, the standard for which is really low.

Again, this shows that, at least during that phase of the investigation, the FBI was moving very conservatively. The GOP keep complaining that Carter Page, who had been a suspected foreign agent for years, was targeted under FISA. But they’re not acknowledging that the FBI appears to have treated the other Trump aides with kid gloves. for nine months after the period when they obtained a real tip about their involvement.

How the White House’s Tolerance for Wife-Beaters Exposed That It Was Harboring Counterintelligence Threats

There are a lot of important lessons about the White House’s protection and promotion of Rob Porter even after the FBI informed the White House about his serial wife beating: about White House’s tolerance for conflicts, about John Kelly’s overblown competence. If you haven’t read Dahlia Lithwick’s piece on what it says about society’s response to domestic abuse more generally, absolutely do.

There are also multiple theories about how this all came to light, whether the recent girlfriend who learned of the abuse after talking to the ex-wives about Porter’s philandering made it happen, or whether the FBI did so in the wake of White House involvement in the Devin Nunes saga.

Whatever the answers to those issues, it’s now clear what just or is about to happen.

Last night, the WaPo answered a question that should have been answered at yesterday’s presser. There are dozens of people working in the White House who, like Porter, have not yet received clearance. Starting with the son-in-law that has been remapping the world while under active counterintelligence investigation for shaping policy in a way that may stave off familial bankruptcy.

Dozens of White House employees are awaiting permanent security clearances and have been working for months with temporary approvals to handle sensitive information while the FBI continues to probe their backgrounds, according to U.S. officials.

People familiar with the security-clearance process said one of those White House officials with an interim approval is Jared Kushner — the president’s son-in-law and one of his most influential advisers.

Then Politico provided the other, even more critical piece of this puzzle: FBI already told the White House that Porter and others would not get security clearance. And there are witnesses that Kelly knew about these multiple White House aides and thought they should be fired.

White House chief of staff John Kelly was told several weeks ago that the FBI would deny full security clearances to multiple White House aides who had been working in the West Wing on interim security clearances.

Those aides, according to a senior administration official, included former White House staff secretary Rob Porter, who left the White House on Thursday after reports that he physically and verbally abused his two ex-wives.

The White House chief-of-staff told confidants in recent weeks that he had decided to fire anyone who had been denied a clearance — but had yet to act on that plan before the Porter allegations were first reported this week.

I figure around about noon we’ll learn Jared was one of the others.

Remember: according to Supreme Court precedent, the President has final authority on matters of clearance. So if Trump wants to override the FBI’s determination, he can. Which he might get away with so long as it remained secret, so long as the press didn’t know that a bunch of people were working with the country’s most sensitive information even though the FBI had told the White House it was a very bad idea to let them. And know which ones they were.

But whether through the coincidental timing of a bunch of women refusing to let a serial abuser go on with his life or through orchestration by the Bureau or both, any effort to keep secret that the White House was delaying the obvious counterintelligence choice or even perhaps planning to defy the FBI about it is in the process of being exposed.

Trump is reportedly consulting now with two of the most likely counterintelligence problems, Jared and (on her own right, because of her own dodgy business deals) Ivanka, on a staff shake-up to try to make this problem go away.

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Instead, Nunes seems completely unaware that such problems existed.