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.


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.


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.


Feinstein’s Homework Assignments

While Devin Nunes has been getting all the headlines for trying to muck up the Mueller investigation, Chuck Grassley and Dianne Feinstein are increasingly at odds, as well. First there was the Grassley-Lindsey Graham bogus referral of Christopher Steele (I say it’s bogus not because I doubt his sworn statements have been inconsistent — they have been — but because FBI doesn’t need a referral for statements made to FBI itself). Then Feinstein released, and then apologized for, releasing the Glenn Simpson transcript. Grassley used that to invent the story that Jared Kushner was spooked and so wouldn’t sit for an interview with the Senate Judiciary Committee (we know that’s bullshit because Kushner released his own statement before giving it to the Senate Intelligence Committee, which “spooked” Richard Burr). Still, in response to a Sheldon Whitehouse and Richard Blumenthal request that Don Jr’s transcript be shared with FBI (because he likely lied in it), Grassley suggested he’d release the transcripts of all the interviews pertaining to the June 9 meeting.

So now both are continuing to collect evidence on their own, at least in part to generate headlines rather than investigative leads. But the most recent requests, both sent out yesterday, provide some insight into what they believe might have happened and what they know (or still don’t know).

In this post, I’ll look at whom Feinstein is requesting information from. In a follow-up I’ll comment on Grassley’s latest request.

Who Feinstein wants to talk to and who represents them

Some of Feinstein’s requests are immediately understandable, including the following people (thoughout this post, I’ve noted the lawyer’s name if the letter was sent to one):

As for the others, the explanation for why the Committee is seeking information explains any connection understood to the investigation. Most of this is open source information to footnoted reporting (click through to see those sources). Where that’s not the case, I’ve bolded it, as that presumably reflects still classified information the Committee received.

Michael Caputo (Dennis Vacco):

You joined the presidential campaign of Donald Trump as a communications advisor upon the recommendation of Paul Manafort, and it has been reported you have close ties to campaign advisor Roger Stone. It also has been reported that you have deep ties to Russia, including having worked for the Kremlin and Russian energy conglomerate Gazprom.

Paul Erickson (sent to him directly):

In May 2016, you were involved in efforts to broker a meeting between Alexander Torshin — someone you described as “President Putin’s emissary” — and top officials for the Trump campaign. In your communications with the Trump campaign about this meeting, you said that you had been “cultivating a back-channel to President Putin’s Kremlin” and that the “Kremlin believes htat the only possibility of a true reset in this relationship would be with a new Republican White House.”

Robert Foresman (sent to him directly):

As a long-time investment banker in Russia, you have developed relationships with senior Kremlin officials and have expressed your passion for private diplomacy to help foster improved U.S.-Russia relations. The Committee has reason to believe you sought to engage the Trump campaign in discussions concerning outreach from senior Kremlin officials.

Rhona Graff (Alan Futerfas, who is also representing Don Jr):

As a senior vice president in the Trump Organization and longtime assistant to Donald Trump, you are likely familiar with the President’s communications and schedule, particularly during the 2016 presidential campaign. For example, Roger Stone and Paul Manafort, [sic] have said they contact you to get access to President Trump. And when Rob Goldstone emailed Donald Trump Jr. about setting up the June 9, 2016 meeting between the Trump campaign and a Russian lawyer, he noted, “I can also send this info to your father via Rhona, but it is ultra sensitive so wanted to send to you first.”

Philip Griffin (sent directly to his email):

You have been a longstanding associate of former Trump campaign manager Paul Manafort and served, reportedly at his request, as an advisor to the Trump campaign during the Republican National Convention in Cleveland in July 2016.


You have been a longtime of [sic] associate of Manafort, and you hired Konstantin Kiliminik [sic] to work with you and Manafort in Ukraine. In 2014, you were named in a lawsuit filed by Russian oligarch Oleg Deripaska as a “ley” partner, along with Manafort, Gates, and Kilimnik, in an investment fund that Deripaska contends stole nearly $19 million from him. In 2016, while Manafort was serving as the Trump campaign manager, Kilimnik reportedly emailed Manafort about reporting on Manafort’s role in the campaign with Deripaska, which Manafort suggested might be used to “get whole.”

David Keene (sent directly to him):

In spring 2016, Russian banker Alexander Torshin and Russian national Maria Butina were reportedly involved in efforts to arrange a meeting between Mr. Torshin and then-candidate Donald Trump or his campaign. Mr. Torshin is a “senior Russian official who claimed to be acting at the behest of President Vladimir V. Putin of Russia.” Ms. Butina is the founder of the Russian group known as the Right to Bear Arms and has described herself as a “representative of the Russian Federation” and a “connection between Team Trump and Russia.” You reportedly were introduced to Mr. Torshin in 2011, and were invited by Mr. Torshin and Ms. Butina to speak at the 2013 annual meeting in Moscow for the Right to Bear Arms. Ms. Butina was your guest at the NRA’s 2014 annual meeting, and you traveled along with Trump campaign surrogate Sheriff David Clarke to Moscow in December 2015 for another meeting with Ms. Butina’s organization.

Joseph Keith Kellogg, Jr. (sent directly to him):

As a member of the Trump campaign’s foreign policy team, you worked alongside George Papadopoulos and Carter Page, both of whom had multiple contacts with Russian officials (or their surrogates) that they reported back to the campaign. You also worked on the Trump transition team before joining the National Security Council and served as Chief of Staff under Lt. General Michael Flynn until his removal.


You served as Chief of Staff on the National Security Council during the period when General Flynn lied to administration officials about his Russian contacts. It has been reported that, once the White House learned of those lies from Acting Attorney General Sally Yates, you started participating in the President’s daily security briefings, and — once General Flynn was removed — you served as the President’s interim national security advisor.

John Mashburn (sent to him at the White House):

As the Trump campaign policy director, you worked alongside members of the foreign policy team who had multiple contacts with Russian officials (or their surrogates). For example, Rick Dearborn, another senior policy aide, who reportedly shared a May 2016 request from Alexander Torshin, a senior Russian official with close ties to Vladimir Putin, to meet then-candidate Trump or other top campaign officials at the National Rifle Association’s 2016 annual convention. It also has been reported that JD Gordon informed you about pro-Russian changes to the Republican party platform that were championed by the Trump campaign. You role as senior advisor on the transition team, and now White House Deputy Cabinet Secretary, also has given you a firsthand look at other significant events affecting the Trump administration, including the removals of National Security Advisor Michael Flynn and FBI Director James Comey.

Frank Mermoud (sent via email directly to him):

You served as an advisor to the Trump campaign during the Republican National Convention in Cleveland in July 2016, running the program for ambassadors and foreign delegations — a post that you reportedly held at the recommendation of former Trump campaign manager Paul Manafort. Because of your role at the convention, longstanding relationship with Mr. Manafort, and deep business ties to Ukraine,

Amanda Miller (Alan Futerfas, who also represents Don Jr):

As a vice president for marketing at the Trump Organization, you are likely intimately familiar with President Donald Trump and the inner workings of the Trump Organization. For example, you have made public statements on behalf of the Trump Organization regarding the Trump Organization’s efforts to build a Trump Tower in Moscow. In addition, the Committee has reason to believe that you may have information on other Trump business ties to Russia.

Feinstein wants to know who lied to David Ignatius

In general, the items requested are not the surprising. I am, however, interested that Kellogg, Miller, and Spicer were asked about,

All communications concerning the story written by David Ignatius that appeared in the Washington Post on January 12, 2017, titled, “Why did Obama dawdle on Russia’s hacking?

Note, before the story, the transition team did not comment, but after it revealed that Flynn had phoned Sergei Kislyak several times on December 29, two aides called Ignatius and told what we now know are lies.

The Trump transition team did not respond Thursday night to a request for comment. But two team members called with information Friday morning. A first Trump official confirmed that Flynn had spoken with Kislyak by phone, but said the calls were before sanctions were announced and didn’t cover that topic. This official later added that Flynn’s initial call was to express condolences to Kislyak after the terrorist killing of the Russian ambassador to Ankara Dec. 19, and that Flynn made a second call Dec. 28 to express condolences for the shoot-down of a Russian plane carrying a choir to Syria. In that second call, Flynn also discussed plans for a Trump-Putin conversation sometime after the inauguration. In addition, a second Trump official said the Dec. 28 call included an invitation from Kislyak for a Trump administration official to visit Kazakhstan for a conference in late January.

Burck’s clients get different treatment

Also as I noted above, Feinstein staff treated the letter to the two William Burck clients differently. Bannon’s was sent to him, but care of Burck.

But McGahn’s was addressed to Burck.

Unless I missed it, McGahn’s is the only letter treated this way. Which is one reason I suspect the blizzard of stories about what a hero McGahn was in June after he had done clearly obstructive things in May and earlier may have more to do with McGahn’s legal jeopardy than Trump’s.

Update: This Politico piece (h/t PINC) says that McGahn hired Burck last May, right after he had done some really stupid things with respect to the Jim Comey firing.

McGahn came calling in May amid the fallout from Trump’s decision to fire Comey from his post as FBI director — an explosive move that prompted Mueller’s appointment.

The Gizmo™: Correlation Doesn’t Equal Adversary Nation

For days, reporters have been mis-using The Gizmo™ (the name I use for the “disinformation dashboard” from the German Marshall Fund, a black box that purports to show “Russian propaganda efforts on Twitter in near-real time”) to claim that Russian-linked accounts are pushing the #ReleaseTheMemo campaign calling for the public release of Devin Nunes’ politicized memo attacking the FBI.

As the effort lead by some Republicans to curtail special counsel Robert S. Mueller III’s investigation into the election meddling has heated up, Russian-linked accounts helped amplify a Twitter hashtag calling for the release of a memo the group hopes will help discredit Mueller’s work, according to Hamilton 68, a research firm that tracks the malicious accounts. The #releasethememo hashtag was tweeted by these accounts nearly 4,000 times in the last couple of days, the firm said.

As always with such reporting, the articles don’t provide even the nuance the project’s most responsible contributor, JM Berger, lays out on their methodology page.

  1. Not all content in this network is “created” by Russia. A significant amount—probably a majority—of content is created by third parties and then amplified by the network because it is relevant to Russian messaging themes.
  2. Not all content amplified by this network is pro-Russian. The network frequently mobilizes to criticize or attack individuals or news reports that it wishes to discredit.
  3. Because of the two points above, we emphasize it is NOT CORRECT to describe sites linked by this network as Russian propaganda sites. We are not claiming that content producers linked by this network are Russian propaganda sites. Rather, content linked by this network is RELEVANT to Russian messaging themes.

Such reports certainly don’t consider the validity of drawing conclusions from such analysis that the authors have refused to have vetted by a third party. What does it mean to openly profess to be pro-Russian, for example? Do non-consensus views on Syria or Ukraine count? Does skepticism about Russian involvement in the election count?

And the reports don’t note the serial false positives, such as the time Jim Lankford used The Gizmo™ to claim Russia was stoking tensions around NFL players taking a knee during the anthem. More responsible analysis showed that,

[B]oth #TakeAKnee and #BoycottNFL were genuinely viral movements, generating high volumes of traffic from large numbers of accounts, but both received an additional boost from bots.

The bots which amplified #TakeAKnee were primarily non-political; they appear to be bots for hire, repurposed to amplify specific posts. Of these, the most significant group is that which retweeted @DianneLogic, given its previous use in online harassment campaigns in the context of Russia and the far right. However, the evidence of its prior behavior is suggestive but not conclusive. It cannot be taken as proving Senator Lankford’s claim.

The accounts which amplifed #BoycottNFL are a different breed. They are largely cyborgs, rather than bots, posting authored content in between slews of retweets. They are also political, rather than commercial. Their sole purpose appears to be boosting far-right American posts.

In both cases, the bots were functionally anonymous, providing no verifiable information on the identity of the user behind them. There is thus no independent information which would allow us to say definitively whether they were American, linked somehow to Russia, or managed from another country entirely.

In short, in spite of this thing being shown to measure something entirely different from what reporters continue to report — correlated traffic (and that, based on unpublished criteria) rather than causal traffic — nevertheless Russia got credit for a campaign clearly driven by right wing Americans backed by a far more extensive propaganda infrastructure.

And then, even as Twitter started leaking initial analysis saying just that — that Russia wasn’t to blame …

[A] knowledgeable source says that Twitter’s internal analysis has thus far found that authentic American accounts, and not Russian imposters or automated bots, are driving #ReleaseTheMemo. There are no preliminary indications that the Twitter activity either driving the hashtag or engaging with it is either predominantly Russian.

In short, according to this source, who would not speak to The Daily Beast for attribution, the retweets are coming from inside the country.

… Two members of Congress from California, Adam Schiff and Dianne Feinstein, called on two California companies, Twitter and Facebook, to confess further manipulation by Russia.

We understand Facebook and Twitter have developed significant expertise in identifying inauthentic and malicious accounts.  Further, your forensic investigations into Russian government exploitation of your platforms during the 2016 U.S. election have helped expose to the American public the vast extent of Russia’s covert influence efforts. We therefore request that your companies conduct an in-depth forensic examination of this real-time activity on your platforms to determine:

  1. Whether and how many accounts linked to Russian influence operations are involved in this campaign;
  2. The frequency and volume of their postings on this topic; and
  3. How many legitimate Twitter and Facebook account holders have been exposed to this campaign.

Given the urgency of this matter, we ask that you provide a public report to Congress and the American public by January 26, 2018.  In addition, we urge your companies to immediately take necessary steps to expose and deactivate accounts involved in this influence operation that violate your respective user policies.

Nothing in this letter explains why Facebook should have to do this work, as The Gizmo™, the sole piece of evidence Schiff and Feinstein rely on, doesn’t track Facebook.

But even the demand to Twitter was based on yet another misreading of what The Gizmo™ actually measures. And, having never asked The Gizmo™ to explain the methodology behind its serial panics, a Senator representing both Facebook and Twitter demanded that they check its work, rather than vice versa.

If I were a forewoman in a Russian troll factory, there would be no easier way to boost my career prospects than to use a few of my bots to manipulate The Gizmo™’s sloppy methodology to claim credit for an obviously American-generated hoax. “Ивана! Давайте претендовать на последнюю республиканскую пропаганду!” Doing so would set off a self-fulfilling prophecy, precisely the kind of thing The Gizmo™’s authors claim to want to prevent, boosting Russia’s ability to sow discord with virtually no effort.

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

Jack Goldsmith and Susan Hennessey Run Cover for Those Giving Jeff Sessions Unreviewable Authority to Criminalize Dissent

I’m used to Susan Hennessey partnering with Ben Wittes to write apologies for NSA and FBI that ignore known facts. I’m a bit surprised that Jack Goldsmith did so in this defense of Democrats — like Adam Schiff and Nancy Pelosi and nineteen Democratic Senators — who have voted to give Jeff Sessions unreviewable authority to criminalize dissent using certain privacy tools.

NSA did not fix “abouts” problems before the issues became public

There are numerous problems with this post. The one that irks me the most, however, is the claim that the “system itself” identified and addressed problems with “abouts” collection before they became public.

We acknowledge that the program has raised hard legal questions as well as difficult compliance issues, primarily involving “abouts” collection. But these problems were identified by the system itself, long before the issues became public, and the practices were fixed or terminated.

This claim, one I’ve corrected Hennessey for on numerous occasions on Twitter, is false, and should be retracted.

I say that with great confidence, because I wrote about the problems on August 11, 2016, well before NSA failed to disclose the full extent of the problems in an October 4, 2016 hearing, which led the worst FISC judge ever, Rosemary Collyer, to complain about NSA’s institutional “lack of candor.”

At the October 26, 2016 hearing, the Court ascribed the government’s failure to disclose those IG and OCO reviews at the October 4, 2016 hearing to an institutional “lack of candor” on NSA’s part and emphasized that “this is a very serious Fourth Amendment issue.”

As a reminder, the problem (the FISC has) with “abouts” collection is not so much that it collected entirely domestic communications — that’s the complaint of the rest of us. It’s that NSA never ever complied with John Bates’ 2011 requirement that NSA not conduct back door searches on upstream collection, because it might result in searches of those entirely domestic communications. In my August 2016 post, I noted that reviewers kept discovering that NSA continued to do back door searches on upstream data in violation of that prohibition, and kept refusing to implement technical fixes to avoid them.

I also raised concerns about the oversight of 704/705(b), which is how the NSA first realized how badly non-compliant their upstream searches were, on May 13, 2016, That’s about when NSA first reported to DOJ “in May and June 2016” that “approximately eighty-five percent of” queries using a tool the NSA employs with 704/705b queries “were not compliant with the applicable minimization procedures.”

I’ll grant that I’m remarkably attentive to documents that get declassified years after the fact. But I’m nevertheless “the public.” If I’m identifying these problems — and NSA’s refusal to make the technical fixes to avoid them — before they get fully briefed to DOJ or FISC, then it is absolutely false to claim that “the system” fixed or terminated the problem long before they became public.

Again, Lawfare should issue a retraction for that claim.

Update, January 19: On Twitter yesterday, Hennessey claimed I misread this quote, and that her proof that the system works was that the NSA had gotten away with ignoring Bates’ orders for five years, but finally shut it down before the public learned that NSA had been ignoring FISC’s orders.

This is still factually false — as I responded to her, the NSA was still identifying problems for eight months after I wrote about the problems, even assuming it had found all of them by April 2017, which was the last declassified reporting on it. But her explanation actually makes the comment downright damning for the NSA. It suggests a lawyer who was at NSA during the period it was not in compliance believes that getting away with violating the Fourth Amendment for five years, but fixing it before documents released on a three year delay (and only because of Snowden) is a sign of a law-abiding agency.

A portrait of a guy who doesn’t know key details as a rigorous overseer

The fact that I was harping on the “abouts” problems before any overseers of the program managed to fully investigate and fix them by itself disproves the claims that Hennessey and Goldsmith make in their hagiography of Adam Schiff.

He is the ranking Democrat on the House intelligence committee and one of the most knowledgeable and informed members of Congress on intelligence matters. Schiff has not hesitated to be  when he sees fit. He has watched the 702 program up close over many years in classified settings in his oversight role. He knows well its virtues and its warts. We suppose it is possible that Schiff would vote to give the president, whose integrity he so obviously worries about, vast powers to spy on Americans in an abusive way. Given everything Schiff has publicly said and done over the last year, however, a much more plausible inference is that he knows not only how valuable the 702 program is but also how law-constrained and carefully controlled and monitored it is.

Plus, I’m not sure why they think that Schiff’s attempt to fix the Section 215 phone dragnet only after Edward Snowden made it public proves that Schiff “never hesitated to be critical of intelligence community practices.” On the contrary, it proves that he did hesitate to do so before excessive programs became public.

The distinction is utterly critical given something I’ve pointed out about this bill. The bill itself is an admission that the intelligence community is out of control, and that congressional overseers can’t get information they need to adequately oversee the program without demanding it in legislation. That’s because it requires the IC to provide information on two practices that Congress cannot be deemed competent to legislate on without having answers about first.

For example, the bill requires an IG Report on how FBI queries raw data.

(b) MATTERS INCLUDED.—The report under subsection (a) shall include, at a minimum, an assessment of the following:

(1) The interpretations by the Federal Bureau of Investigation and the National Security Division of the Department of Justice, respectively, relating to the querying procedures adopted under subsection (f) of section 702 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a(f)), as added by section 101.


(6) The scope of access by the criminal division of the Federal Bureau of Investigation to information obtained pursuant to the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), including with respect to information acquired under subsection (a) of such section 702 based on queries conducted by the criminal division.

(7) The frequency and nature of the reviews conducted by the National Security Division of the Department of Justice and the Office of the Director of National Intelligence relating to the compliance by the Federal Bureau of Investigation with such querying procedures.

I have explained (and I know Hennessey regards this as a problem too) that since 2012, FBI has devolved its access to raw 702 data to field offices. The FBI already conducted far, far less oversight of the back door searches it conducts than NSA does. But because the DOJ/DNI 702 review teams visit only a fraction of the FBI field offices with each review, and because FBI’s querying system doesn’t collect enough information to do oversight remotely, it is possible that the offices that are least familiar with 702 requirements are — for the smaller number of 702 queries they conduct — getting the least oversight.

You can’t pass a bill that effectively blesses FBI’s use of back door searches on Americans about whom it has no evidence of any wrongdoing, while admitting you don’t know how FBI conducts those back door searches, and make any claim to conduct adequate oversight. Rather, the bill permits FBI to continue practices it has stubbornly refused to brief Congress on, rather than demanding that FBI brief Congress first, so Congress can impose any restrictions that might be necessary to adequately protect Americans.

The bill also requires a briefing within six months to explain how DOJ complies with FISA’s legally mandated notice requirements (because notice under 702 is treated as notice under 106(c), this covers 702 surveillance as well).

Not later than 180 days after the date of the enactment of this Act, the Attorney General, in consultation with the Director of National Intelligence, shall provide to the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives and the Committee on the Judiciary and the Select 10 Committee on Intelligence of the Senate a briefing with respect to how the Department of Justice interprets the requirements under sections 106(c), 305(d), and 405(c) of the Foreign Intelligence Surveillance Act of 1978 (50 14 U.S.C. 1806(c), 1825(d), and 1845(c)) to notify an aggrieved person under such sections of the use of information obtained or derived from electronic surveillance, physical search, or the use of a pen register or trap and trace device. The briefing shall focus on how the Department interprets the phrase ‘‘obtained or derived from’’ in such sections.

The public treatment of DOJ’s serial, obvious failures to give notice to defendants is a nifty trick. When DOJ fails to give notice, it clearly violates the law, but notice is not included in minimization procedure review, so therefore is not reviewed by the FISC. When surveillance boosters like Hennessey and Goldsmith say there have never been any willful violations of the law, they manage to ignore the notice violations that have allowed some pretty problematic practices to avoid judicial oversight only because by breaking the law DOJ ensures no court will find them to be breaking the law.

Catch 22: Heads legal violations never get reviewed by a court, tails surveillance boosters can claim the surveillance has a clean bill of health.

Again, this is a known, egregious problem with the implementation of 702.

But rather than do the obvious thing as part of what this post dubs “robust democratic deliberation,” which is to demand answers about how notice is (not) given and require DOJ to fix it as part of the bill, the bill instead simply requires DOJ to provide the information that Congress needs to do basic oversight six months after reauthorization, which effectively punts fixing the problem six years down the road.

How many Chinese-American scientists will be improperly prosecuted because FBI is technically inane in those 6 years, because a bunch of California legislators like Nancy Pelosi, Adam Schiff, and Dianne Feinstein chose to punt on basic oversight?

The most egregious example of this, however, involves the government’s obstinate refusal to explain how many US persons are affected by 702. This bill also did not incorporate an HJC proposal requiring a count of how many Americans got referred for criminal prosecution off of 702 collection.

Letting Jeff Sessions criminalize dissent

That refusal — the refusal to even legislatively require the government to report on the impact of 702 surveillance on Americans, via incidental collection and/or criminal referral — brings us to the problem with this bill that opponents are all raising, but about which Hennessey and Goldsmith are inexcusably silent: the codification of giving Jeff Sessions unreviewable authority to determine what counts as a “criminal proceeding [that] affects, involves, or is related to the national security of the United States.”

Here’s how Hennessey and Goldsmith describe the impact of this program on Americans.

As Lawfare readers know, Section 702 authorizes the intelligence community to target the communications of non-U.S. persons located outside the United States for foreign intelligence purposes. It does not permit the intelligence community to target a U.S. person anywhere in the world. But it does permit incidental collection on U.S. persons, subject to strict rules about minimization and use.

Their silence about how the bill doesn’t deal with back door searches is problematic enough.

But they predictably, but problematically, make no mention of the way the bill codifies the use of 702 in domestic law enforcement under the Tor/VPN exception.

As I have laid out, in 2014 FISC created an exception to the rule that NSA must detask from a facility as soon as they learn that Americans are also using that facility. That exception applies to Tor and (though I understand this part even less) VPN servers — basically the kinds of privacy tools that criminals, spies, journalists, and dissidents might use to hide their online activities. NSA has to sort through what they collect on the back end, but along the way, they get to decide to keep any entirely domestic traffic they find has significant foreign intelligence purpose or is evidence of a crime, among other reasons. The bill even codifies 8 enumerated crimes under which they can keep such data. Some of those crimes — child porn and murder — make sense, but others — like transnational crime (including local drug dealers selling imported drugs) and CFAA (with its well-known propensity for abuse) pose more potential for abuse.

But it’s the unreviewable authority for Jeff Sessions bit that is the real problem.

We know, for example, that painting Black Lives Matter as a national security threat is key to the Trump-Sessions effort to criminalize race. We also know that Trump has accused his opponents of treason, all for making critical comments about Trump.

This bill gives Sessions unreviewable authority to decide that a BLM protest organized using or whistleblowing relying on Tor, discovered by collection done in the name of hunting Russian spies, can be referred for prosecution. The fact that the underlying data predicating any prosecution was obtained without a warrant under 702 would — in part because this bill doesn’t add teeth to FISA notice — ensure that courts would never learn the genesis of the prosecution. Even if a court somehow managed to do so, however, it could never deem the domestic surveillance unlawful because the bill gives Jeff Sessions the unreviewable authority to treat dissent as a national security threat.

This is such an obviously bad idea, and it is being supported by people who talk incessantly about the threat that Trump and Sessions present. Yet, rather than addressing the issue head on (which I doubt Hennessey could legally do in any case), they simply remain silent about what is the biggest complaint from privacy activists, that this gives a racist, vindictive Attorney General far more authority than he should have, and does so without fixing the inadequate protections for criminal defendants along the way.

I mean, I get that surveillance boosters who recognize the threat Trump and Sessions pose want to absolve themselves for giving Trump tools that can so obviously be abused.

But this attempt does so precisely by dodging the most obvious reasons for which boosters should be held to account.

Update: Changed post to note that just Trump has accused FBI Agents of treason, not Sessions, and not (yet) journalists.

Update: Here’s the roll call of the 65-34 vote passage of the bill. Democrats who voted in favor are:

  1. Carper
  2. Casey
  3. Cortez Masto
  4. Donnelly
  5. Duckworth
  6. Feinstein
  7. Hassan
  8. Heitkamp
  9. Jones
  10. Klobuchar
  11. Manchin
  12. McCaskill
  13. Nelson
  14. Peters
  15. Reed
  16. Schumer
  17. Shaheen
  18. Stabenow
  19. Warner
  20. Whitehouse


10 Years of emptywheel: Key Non-Surveillance Posts 2016-2017

Happy Birthday to me! To us! To the emptywheel community!

On December 3, 2007, emptywheel first posted as a distinct website. That makes us, me, we, ten today.

To celebrate, over the next few days, the emptywheel team will be sharing some of our favorite work from the last decade. I’ll be doing probably 3 posts featuring some of my most important or — in my opinion — resilient non-surveillance posts, plus a separate post bringing together some of my most important surveillance work. I think everyone else is teeing up their favorites, too.

Putting together these posts has been a remarkable experience to see where we’ve been and the breadth of what we’ve covered, on top of mainstays like surveillance. I’m really proud of the work I’ve done, and proud of the community we’ve maintained over the years.

For years, we’ve done this content ad free, relying on donations and me doing freelance work for others to fund the stuff you read here. I would make far more if I worked for some free-standing outlet, but I wouldn’t be able to do the weedy, iterative work that I do here, which would amount to not being able to do my best work.

If you’ve found this work valuable — if you’d like to ensure it remains available for the next ten years — please consider supporting the site.


Why Doesn’t Dianne Feinstein Want to Prevent Murders Like those Robert Dear Committed?

I’ve written a lot about how the focus on Islamic terrorism, based on a claim it’s foreign, creates gross inequalities for Muslims in this country, and does nothing to address some of our most dangerous mass killers (as the Stephen Paddock massacre in Las Vegas makes all too clear). This post is one of that series. It focuses on how the ill-advised efforts to use the No Fly List to create a list of those who couldn’t own guns would be discriminatory and wouldn’t add much to safety.

“Only Facts Matter:” Jim Comey Is Not the Master Bureaucrat of Integrity His PR Sells Him As

From the periods when Jim Comey was universally revered as a boy scout through those when Democrats blamed him for giving us Trump (through the time Democrats predictably flip flopped on that point), I have consistently pointed to a more complicated story, particularly with regards to surveillance and torture. I think the lesson of Comey isn’t so much he’s a bad person — it’s that he’s human, and no human fits into the Manichean world of good guys and bad guys that he viewed justice through.

NSA and CIA Hacked Enrique Peña Nieto before the 2012 Election

As Americans came to grips with the fact that Russia had hacked Democrats to influence last year’s election, many people forgot that the US does the same. And it’s not even just in the bad old days of Allen Dulles. The Snowden documents revealed that NSA and CIA hacked Enrique Peña Nieto in the weeks before he was elected in 2012. The big difference is we don’t know what our spooks did with that information.

Why Is HPSCI’s Snowden Report So Inexcusably Shitty?

In 2016, HPSCI released its Devin Nunes-led investigation into Edward Snowden’s leaks. It was shitty. Really shitty.

Now that the HPSCI investigation into the Russian hack (which has not been subjected to the same limitations as the Snowden investigation was) has proven to be such a shit show, people should go back and review how shitty this review was (including its reliance on Mike Flynn’s inflammatory claims). There absolutely should have been a review of Snowden’s leaks. But this was worse than useless.

Look Closer to Home: Russian Propaganda Depends on the American Structure of Social Media

As people began to look at the role of fake news in the election, I noted that we can’t separate the propaganda that supported Trump from the concentrated platforms that that propaganda exploited. A year later, that’s a big part of what the Intelligence Committees have concluded.

The Evidence to Prove the Russian Hack

In this post I did a comprehensive review of what we knew last December about the proof Russia was behind the tampering in last year’s election.

Obama’s Response to Russia’s Hack: An Emphasis on America’s More Generalized Vulnerability

Last year, in a speech on the hack, Obama focused more on America’s vulnerability that made it possible for Russia to do so much damage than he did on attacking Putin. I think it’s a really important point, one I’ve returned to a lot in the last year.

The Shadow Brokers: “A Nice Little NSA You’ve Got Here; It’d Be a Shame If…”

In December, I did a review of all the posts Shadow Brokers had done and suggested he was engaged in a kind of hostage taking, threatening to dump more NSA tools unless the government met his demands. I was particularly interested in whether such threats were meant to prevent the US from taking more aggressive measures to retaliate against Russia for the hack.


On “Fake News”

After getting into a bunch of Twitter wars over whether we’re at a unique moment with Fake News, I did this post, which I’ve often returned to.

How Hal Martin Stole 75% of NSA’s Hacking Tools: NSA Failed to Implement Required Security Fixes for Three Years after Snowden

The government apparently is still struggling to figure out how its hacking tools (both NSA and CIA) got stolen. I noted back in January that an IG report from 2016 showed that in the three years after Snowden, the IC hadn’t completed really basic things to make itself more safe from such theft.

The Doxing of Equation Group Hackers Raises Questions about the Legal Role of Nation-State Hackers

One thing Shadow Brokers did that Snowden and WikiLeaks, with its Vault 7 releases, have not is to reveal the identities of NSA’s own hackers. Like DOJ’s prosecution of nation-state hackers, I think this may pose problems for the US’ own hackers.

Reasons Why Dems Have Been Fucking Stupid on the Steele Dossier: a Long Essay

I believe Democrats have been ill-advised to focus their Russia energy on the Steele dossier, not least because there has been so much more useful reporting on the Russia hack that the Steele dossier only makes their case more vulnerable to attack. In any case, I continue to post this link, because I continue to have to explain the dossier’s problems.

Other Key Posts Threads

10 Years of emptywheel: Key Non-Surveillance Posts 2008-2010

10 Years of emptywheel: Key Non-Surveillance Posts 2011-2012

10 Years of emptywheel: Key Non-Surveillance Posts 2013-2015

Abbe Lowell Reveals the Complete Inadequacy of the Intelligence Committee Russian Investigations

As noted, the press has been focused on the Senate Judiciary Committee’s revelation that Jared Kushner failed to turn over several documents known to exist, which has led to more details about efforts by Aleksander Torshin to meet with people associated with the campaign.

Here are the things identified to be missing from Jared’s production to SJC.

In addition, there are several documents that are known to exist but were not included in your production. For example, other parties have produced September 2016 email communications to Mr. Kushner concerning WikiLeaks, which Mr. Kushner then forwarded to another campaign official. Such documents should have been produced in response to the third request but were not. Likewise, other parties have produced documents concerning a “Russian backdoor overture and dinner invite” which Mr. Kushner also forwarded. And still others have produced communications with Sergei Millian, copied to Mr. Kushner.

In response to the Feinstein letter revealing these details, Jared’s lawyer, the very capable Abbe Lowell, wrote back, scolding Feinstein (though the letter is also addressed to Chuck Grassley) for releasing her letter to the press. But in fact, Lowell’s letter is not responsive to four of the items laid out in Feinstein’s letter. And the way in which Lowell doesn’t respond reveals the complete inadequacy of the Intelligence Committee Russian investigations.

The four things (I noticed that) Lowell doesn’t address are:

  • A request for a copy of Jared’s own copy of his SF-86 applications
  • A privilege log
  • Call records pertaining to some of the requests
  • Communications “about” certain individuals

A request for a copy of Jared’s own copy of his SF-86 applications

Feinstein’s letter notes that Jared should have a copy of his SF-86 applications and asks for them.

However, if Mr. Kushner or his counsel retained copies of the forms, you should produce them. The SF-86 instructions explicitly advise the applicant to “retain a copy of the completed form for your records.” Moreover, with regard to your claim that the documents are confidential, while the Privacy Act limits the government’s authority to release the information provided to it, there is no restriction on your client’s ability to provide that information to Congress.

Lowell simply notes that SJC is pursuing this, and scoffs that Jared’s serially incomplete SF-86 forms might be relevant to the inquiry.

I explained to your staff that documents concerning the SF-86 are deemed government personnel records, and I know the Committee is pursuing these (again with whatever relevance they could possibly have to any real inquiry) from the proper channels.

A privilege log

Feinstein also asked that Jared work with the White House so he could release “certain documents” that might implicate executive privilege, with an eye towards providing a privilege log.

You also raised concerns that certain documents might implicate the President’s Executive Privilege and declined to produce those documents. We ask that you work with White House counsel to resolve any questions of privilege so that you can produce the documents that have been requested or provide a privilege log that describes the documents over which the President is asserting executive privilege.

While Lowell addresses documents that post-date the inauguration, he makes no comment about executive privilege at all.

Call records pertaining to some of the requests

Feinstein’s letter also notes that Jared included no phone records pertaining to some of the requests (she doesn’t say which ones).

You also have not produced any phone records that we presume exist and would relate to Mr. Kushner’s communications regarding several requests.

Lowell does not address that request at all.

Communications “about” certain individuals

Finally, and most interesting to me, even before Feinstein listed the known documents that Jared had failed to turn over, she noted that he had failed to search for communications about certain things.

For example, you limited your production in response to our second request in a manner that eliminates communications about the individuals identified in that request.[1] If, as you suggest, Mr. Kushner was unaware of, for example, any attempts at Russian interference in the 2016 presidential election, then presumably there would be few communications concerning many of the persons identified in our second request, and the corresponding burden of searching would be small.

[1] The Committee requested “[a]ll communications to, form, or copied to you relating to” certain individuals, but you stated that you “found no communications in which these individuals also appear in the to, from, or copy to lines of the communications.”

In fact, the three missing documents all might be considered such “about” communications, as they consist of forwarded emails adding further commentary.

Here’s where Lowell’s response gets really interesting. As with the request for call records, he doesn’t address the failure to search on communications “about” people at all. He doesn’t mention that he has failed to search for documents in the manner directed by the committee.

But for each of the missing documents, he explains why they wouldn’t be relevant in such a way that completely dodges the fact that, as communications “about” the persons in question, they definitely are.

A communication in which he was a copied recipient and was not about Russia contacts by him (or apparently by anyone else) was not responsive to any request about Mr. Kushner’s own contacts.


The “Millian” email between Mr. Millian and a reporter, in which Mr. Millian is actually conferring with Michael Cohen and confirming that Mr. Millian has no relationship with the President, is also not one about contacts that Mr. Kushner, or really anyone, had that would be responsive to any relevant request.


[of the Torshin email] Again, this was not any contact, call or meeting in which Mr. Kushner was involved.


You can see there would be no reason for us not to provide such a clear expression that Mr. Kushner had no contacts with, nor was in collusion with, nor was pursuing any such relationship with Russia except that it was not responsive.

So not only does he offer disingenuous explanations for each of the missing documents — one after another he explains that these emails don’t involve any contact between Jared and the designated person — but he completely ignores that under the terms of the request, they were obviously responsive.

Of course, the only reason SJC learned of these emails is because the other participants in the email chains turned them over. But there are undoubtedly other emails or documents that are “about” these and presumably other requested individuals that others wouldn’t have been party to. And by ignoring the request for “about” documents, Lowell is basically completely blowing off providing those other documents, which would likely be even more interesting.

Just as an example, Jared could very well have had 100 other discussions “about” Wikileaks or Julian Assange with some unknown person, and Lowell’s incomplete search would have hidden it.

Now check out Lowell’s more general excuse for not turning over such documents:

With respect to the substance of your letter, let me start with the so-called “Missing Documents.” They are not missing at all. As you will note, after I spoke to your staff, I wrote a cover letter with our production. In that letter, I wrote: “We believe that our prior production [to the intelligence committees] contains the most pertinent documents to your inquiry into the June 9, 2016 meeting at Trump Tower, and related matters, and undercut any notion that there was collusion (or even any extensive interaction) between Mr. Kushner and Russia concerning the 2016 election.” The documents provided to those committees fully responded to their requests. That was why we said we would provide those documents to you first to see if anything else was relevant or new, and try to determine whether those documents satisfy your inquiry as well.

This production, which doesn’t include any documents about designated topics (including the June 9 meeting), satisfied the intelligence committees. That means the intelligence committees could not have asked for “about” documents (which is particularly ironic given that they’re both trying to find a way to help NSA turn “about” 702 collection back on). Which in turn means the intelligence committees likely have huge gaps in their understanding of Jared’s awareness of the Russian discussions.

And in addition to all his other contemptuous non-answers to Feinstein’s letter, Lowell says Jared shouldn’t have to sit for an interview with SJC because he already sat for 6 hours with the other committees, the committees that didn’t ask for “about” documents and therefore don’t have a complete picture of Jared’s involvement.

This is the scam that’s been going on for almost a year (which is probably why Michael Cohen has been dodging an interview with SJC too).

While his letter is otherwise totally unhelpful, it’s nice of Lowell to so clearly make evidence the inadequacies of the other congressional investigations.

Update: Perhaps Mueller is facing the same problem, because he just subpoenaed the Trump campaign for more documents, by keyword.

The subpoena, which requested documents and emails from the listed campaign officials that reference a set of Russia-related keywords, marked Mr. Mueller’s first official order for information from the campaign, according to the person. The subpoena didn’t compel any officials to testify before Mr. Mueller’s grand jury, the person said.

The subpoena caught the campaign by surprise, the person said. The campaign had previously been voluntarily complying with the special counsel’s requests for information, and had been sharing with Mr. Mueller’s team the documents it provided to congressional committees as part of their probes of Russian interference into the 2016 presidential election.

Did Akhmetshin and Kaveladze Coordinate Before or After Jared Disclosed the June 9 Meeting

Following Dianne Feinstein’s release of a letter revealing the things Jared Kushner didn’t turn over to the Senate Judiciary Committee, the press has honed in on the things Kushner failed to disclose or lied about. Most interesting is an email chain involving a back channel meeting sought by mobbed up Russian, Aleksander Torshin. While that particular meeting didn’t happen, Don Jr did sit next to Torshin at the NRA convention held in Mitch McConnell’s home town, Louisville (he took the picture above).

An email chain described Aleksander Torshin, a former senator and deputy head of Russia’s central bank who is close to Russian President Vladimir Putin, as wanting Trump to attend an event on the sidelines of a National Rifle Association convention in Louisville, Kentucky, in May 2016, the sources said. The email also suggests Torshin was seeking to meet with a high-level Trump campaign official during the convention, and that he may have had a message for Trump from Putin, the sources said.

Kushner rebuffed the request after receiving a lengthy email exchange about it between a West Virginia man and Trump campaign aide Rick Dearborn, the sources said.


While Kushner told Dearborn and other campaign officials on the email not to accept Torshin’s offer, Torshin was seated with the candidate’s son, Donald Trump Jr., during a private dinner on the sidelines of an NRA event during the convention in Louisville, according to an account Torshin gave to Bloomberg. Congressional investigators have no clear explanation for how that came to be, according to sources familiar with the matter.

But I’m at least as interested in an AP story that may relate to other Kushner disclosures to Congress. It reports that in June of this year, two participants in the June 9, 2016 Trump Tower meeting, Rinat Akhmetshin and Ike Kaveladze met in Moscow.

Akhmetshin told congressional investigators that he asked for the Moscow meeting with Kaveladze to argue that they should go public with the details of the Trump Tower meeting before they were caught up in a media maelstrom. Akhmetshin also told the investigators that Kaveladze said people in Trump’s orbit were asking about Akhmetshin’s background, the person said.

Akhmetshin’s lawyer, Michael Tremonte, declined to comment.

Scott Balber, a lawyer for Kaveladze, confirmed that his client and Akhmetshin met over coffee and that the Trump Tower meeting a year earlier was “obviously discussed.”

Investigators wonder whether they met to orchestrate a limited hangout before the meeting otherwise came out.

Balber denied his client had been contacted by associates of Trump before he took the meeting with Akhmetshin, or had been aware of plans to disclose the Trump Tower gathering to the U.S. government.

Balber said the men did not discuss strategy or how to line up their stories, and did not meet in anticipation of the Trump Tower meeting becoming public and attracting a barrage of news media attention.

He said Akhmetshin did convey during coffee the possibility that his name could come out in connection with the Trump Tower meeting and cause additional, unwanted scrutiny given that he had been linked in earlier news reports to Russian military intelligence, coverage that Akhmetshin considered unfair. Akhmetshin has denied ongoing ties with Russian intelligence, but acknowledged that he served in the Soviet military in the late 1980s as part of a counterintelligence unit.

“That was the impetus,” Balber said of the men’s get-together. “It had absolutely nothing to do with anticipation of the meeting coming out in the press.”

There are three things the AP story doesn’t mention, however.

Previously, the leak of the June 9 meeting had been tied to document submission — by Jared Kushner and Paul Manafort — to Congress.

The Trump Tower meeting was not disclosed to government officials until recently, when Mr. Kushner, who is also a senior White House aide, filed a revised version of a form required to obtain a security clearance.


Mr. Manafort, the former campaign chairman, also recently disclosed the meeting, and Donald Trump Jr.’s role in organizing it, to congressional investigators who had questions about his foreign contacts, according to people familiar with the events.

That might explain why investigators would suspect the meeting was designed to arrange testimony: because it roughly coincided with the admission to the meeting by Kushner and Manafort.

The AP also doesn’t note that Scott Balber, Kaveladze’s (and the Agalarov’s) lawyer, represented Trump in a lawsuit in 2013 (the same year that Agalarov brought Trump’s Miss Universe contest to Moscow).

Nor does it mention that Balber has orchestrated at least two other stories about this meeting: First, an October blitz performing a limited hangout of the emails and oppo research that Natalia Veselnitskaya purportedly brought to the meeting (which, as I noted should have focused on Balber’s role in massaging Veselnitskaya’s story).

But here’s the bigger question. Why would an American lawyer who has previously represented Trump need to fly to Russia to meet with Veselnitskaya personally? This email chain and the talking points could very easily be sent — but weren’t. So why did Balber need to solidify stories with Veselnitskaya in person? And what is the provenance of the emails as presented, stripped of any forensic information?

So while it’s clear Trump’s former lawyer wants to change the spin around this story, it seems to me the takeaway should be,


And, more recently, performing a new limited hangout, suggesting Veselitskaya got her oppo research from Russia’s prosecutor Yuri Chaika.

 Stories that note Veselnitskaya crafted the talking points on Browder and Ziff, which were then picked up by Russia’s prosecutor general Yuri Chaika, are used to suggest that that means Veselnitskaya got the talking points she wrote from Chaika. In conjunction, several iterations of the talking points are released (but not the ones she originally wrote). Also, Balber again weighs in to distance Agalarov.

Donald Trump Jr. has dismissed Mr. Goldstone’s emails as “goosed-up.” Mr. Balber blamed miscommunication among those arranging the meeting. “Mr. Agalarov unequivocally, absolutely, never spoke to Mr. Chaika or his office about these issues,” he said.

So orchestrating a meeting between Rinat Akhmetshin and Ike Kaveladze would make three attempts, on sometime Trump and current Agalarov lawyer Scott Balber’s part, to craft a story about the June 9 meeting.

There are other reasons I know of to suspect that Balber’s story is total crap, but they’ll have to wait.

One more data point.

Remember that in his telegraphed testimony, Don Jr claimed he couldn’t recall the presence of Akhmetshin.

I’m more interesting in the things the forgetful 39 year old could not recall. While his phone records show he spoke to Emin Agalarov, the rock star son of Aras Agalarov, who has been dangling real estate deals in Russia for the Trumps for some time, for example, he doesn’t recall what was discussed.

Three days later, on June 6th, Rob contacted me again about scheduling a time for a call with Emin. My phone records show three very short phone calls between Emin and me between June 6th and 7th. I do not recall speaking to Emin. It is possible that we left each other voice mail messages. I simply do not remember.

This is important, because those conversations probably explained precisely what was going to happen at that meeting (and how it might benefit real estate developer Aras Agalarov), but Jr simply can’t recall even having a conversation (or how long those conversations were).

He also doesn’t recall whether he discussed the meeting, after the fact, with Jared, Manafort, or (the unspoken “anyone else” here is pregnant) Pops.

The meeting lasted 20-30 minutes and Rob, Emin and I never discussed the meeting again. I do not recall ever discussing it with Jared, Paul or anyone else. In short, I gave it no further thought

Once we find out he did discuss it with Pops and others, he can say he’s stupid and we’ll all believe him.

Most interesting, to me, is his claim to only recall seven participants in the meeting.

As I recall, at or around 4 pm, Rob Goldstone came up to our offices and entered our conference room with a lawyer who I now know to be Natalia Veselnitskaya. Joining them was a translator and a man who was introduced to me as Irakli Kaveladze. After a few minutes, Jared and Paul joined. While numerous press outlets have reported that there were a total of eight people present at the meeting, I only recall seven. Because Rob was able to bring the entire group up by only giving his name to the security guard in the lobby, I had no advance warning regarding who or how many people would be attending. There is no attendance log to refer back to and I did not take notes.

The unstated subtext here is even more pregnant. Don Jr accounts for seven of the participants in this meeting:

(3) Himself, Paul Manafort, Jared Kusher

(4) Natalia Veselnitskaya, her translator, the Agalarov’s real estate invstment executive Irakli Kaveladze, and Rob Goldstone

So what he really means to say is he doesn’t recall the presence of Rinat Akhmetshin, who has ties to Russian intelligence and a history of fending off accusations of hacking.

Finally, remember that Veselnitskaya was in touch with Agalarov in advance of the meeting, at the same time that Trump Jr was having phone calls — the substance of which he simply can’t remember — with the younger Agalarov.

Me, 11 days ago.


All of which is to say that the efforts of the last month feel like a limited hangout — an attempt to avoid potentially more damaging revelations with new admissions about Magnitsky. That’s not to say the Magnitsky discussion didn’t happen. It’s to say the potential admissions — down to Veselnitskaya’s claim that, “I definitely don’t have!” information on Russian hacking and interference — have gotten far more damaging since when, in July, she claimed the election didn’t come up.

At the very least, it seems the players — particularly the Trump sponsor Agalarovs  are concerned about what Rob Goldstone has had to say to whatever investigative body — and are now trying to cement a different more damning one, yet one that still stops short of what they might admit to.

In either case, another thing seems clear: Veselnitskaya attempted to come to the country, using the same method she did when she actually used her presence to pitch Don Jr. After that meeting was denied, Trump went from suggesting he might meet with Putin to confirming that he plans to.

Earlier today, NBC reported that Rob Goldstone is preparing to come to the US (bizarrely showing willingness to come here rather than remain in Thailand where extraditions are possible but challenging) to meet with Mueller’s team.

From all this, I suspect that Jared’s delayed disclosures may hide other, far more damning ones.

Eleven (or Thirteen) Senators Are Cool with Using Section 702 to Spy on Americans

The Senate Intelligence Committee report on its version of Section 702 “reform” is out. It makes it clear that my concerns raised here and here are merited.

In this post, I’ll examine what the report — particularly taken in conjunction with the Wyden-Paul reform — reveals about the use of Section 702 for domestic spying.

The first clue is Senator Wyden’s effort to prohibit collection of domestic communications — the issue about which he and Director of National Intelligence Dan Coats have been fighting about since June.

By a vote of four ayes to eleven noes, the Committee rejected an amendment by Senator Wyden that would have prohibited acquisition under Section 702 of communications known to be entirely domestic under authority to target certain persons outside of the United States. The votes in person or by proxy were as follows: Chairman Burr—no; Senator Risch—no; Senator Rubio—no; Senator Collins—no; Senator Blunt—no; Senator Lankford—no; Senator Cotton—no; Senator Cornyn—no; Vice Chairman Warner—no; Senator Feinstein—aye; Senator Wyden—aye; Senator Heinrich— aye; Senator King—no; Senator Manchin—no; and Senator Harris—aye.

It tells us that the government collects entirely domestic communications, a practice that Wyden tried to prohibit in his own bill, which added this language to Section 702.

(F) may not acquire communications known to be entirely domestic;

This would effectively close the 2014 exception, which permitted the NSA to continue to collect on a facility even after it had identified that Americans also used it. As I have explained is used to collect Tor (and probably VPN) traffic to obtain foreigners’ data. I suspect that detail is what Wyden had in mind when, in his comments in the report, he said the report itself “omit[s] key information about the scope of authorities granted the government” (though there are likely other things this report hides).

I have concerns about this report. By omitting key information about the scope of authorities granted the government, the Committee is itself contributing to the continuing corrosive problem of secret law

As the bill report lays out, Senators Burr, Risch, Rubio, Collins, Blunt, Lankford, Cotton, Cornyn, Warner, King, and Manchin are all cool using a foreign surveillance program to spy on their constituents, especially given that Burr has hidden precisely the impact of that spying in this report.

Any bets on whether they might have voted differently if we all got to know what kind of spying on us this bill authorized.

That, of course, is only eleven senators who are cool with treating their constituents (or at least those using location obscuring techniques) like foreigners.

But I’m throwing Feinstein and Harris in with that group, because they voted against a Wyden amendment that would have limited how the government could use 702 collected data in investigations.

By a vote of two ayes to thirteen noes, the Committee rejected an amendment by Senator Wyden that would have imposed further restrictions on use of Section 702-derived information in investigations and legal proceedings. The votes in person or by proxy were as follows: Chairman Burr—no; Senator Risch—no; Senator Rubio—no; Senator Collins—no; Senator Blunt—no; Senator Lankford—no; Senator Cotton—no; Senator Cornyn—no; Vice Chairman Warner—no; Senator Feinstein—no; Senator Wyden— aye; Senator Heinrich—aye; Senator King—no; Senator Manchin— no; and Senator Harris—no.

While we don’t have the language of this amendment, I assume it does what this language in Wyden’s bill does, which is to limit the use of Section 702 data for purposes laid out in the known certificates (foreign government including nation-state hacking, counterproliferation, and counterterrorism — though this language makes me wonder if there’s a Critical Infrastructure certificate or whether it only depends on the permission to do so in the FBI minimization procedures, and the force protection language reminds me of the concerns raised by a recent HRW FOIA permitting the use of 12333 language to do so).

(B) in a proceeding or investigation in which the information is directly related to and necessary to address a specific threat of—

(i) terrorism (as defined in clauses (i) through (iii) of section 2332(g)(5)(B) of title 18, United States Code);

(ii) espionage (as used in chapter 37 of title 18, United States Code);

(iii) proliferation or use of a weapon of mass destruction (as defined in section 2332a(c) of title 18, United States Code);

(iv) a cybersecurity threat from a foreign country;

(v) incapacitation or destruction of critical infrastructure (as defined in section 1016(e) of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 (42 U.S.C. 5195c(e))); or

(vi) a threat to the armed forces of the United States or an ally of the United States or to other personnel of the United States Government or a government of an ally of the United States.

Compare this list with the one included in the bill, which codifies the use of 702 data for issues that,

“Affects, involves, or is related to” the national security of the United States (which will include proceedings used to flip informants on top of whatever terrorism, proliferation, or espionage and hacking crimes that would more directly fall under national security) or involves,

  • Death
  • Kidnapping
  • Serious bodily injury
  • Specified offense against a minor
  • Incapacitation or destruction of critical infrastructure (critical infrastructure can include even campgrounds!)
  • Cybersecurity, including violations of CFAA
  • Transnational crime, including transnational narcotics trafficking
  • Human trafficking (which, especially dissociated from transnational crime, is often used as a ploy to prosecute prostitution; the government also includes assisting undocumented migration to be human trafficking)


Importantly, the bill does not permit judicial review on whether the determination that something “affects, involves, or is related to” national security. Meaning Attorney General Jeff Sessions could decide tomorrow that it can collect the Tor traffic of BLM or BDS activists, and no judge can rule that’s an inappropriate use of a foreign intelligence program.

The bill report’s description of this section makes it clear that — in spite of its use of the word “restriction,” — this is really about providing affirmative “permission.”

Section 6 provides restrictions on the Federal Bureau of Investigation’s (FBI’s) use of Section 702-derived information, so that the FBI can use the information as evidence only in court proceedings [my emphasis]

That is, Wyden would restrict the use of 702 data to purposes the FISC has affirmatively approved, rather than the list of 702 purposes expanded to include the most problematic uses of Tor: all hacking, dark markets, and child porn.

So while Feinstein and Harris voted against the use of 702 to collect known domestic communications, they’re still okay using domestic Tor commuincations they say they don’t want to let NSA collect to prosecute Americans (which is actually not surprising given their past actions on sex workers).

Again, they’re counting on the fact that the bill report is written such that their constituents won’t know that this is going on. Unless they read me.

Look, I get the need to collect on Tor traffic to go after its worst uses. But if you’re going to do that, stop pretending this is a foreign surveillance bill, and instead either call it a secret court bill (one that effectively evades warrant requirements for all Tor wiretapping in this country), or admit you’re doing that collection and put review of it back into criminal courts where it belongs.

The Senate Intelligence Committee 702 Bill Is a Domestic Spying Bill

Richard Burr has released his draft Section 702 bill.

Contrary to what you’re reading about it not “reforming” 702, the SSCI bill makes dramatic changes to 702. Effectively, it makes 702 a domestic spying program.

The SSCI expands the kinds of criminal prosecutions with which it can use Section 702 data

It does so in Section 5, in what is cynically called “End Use Restriction,” but which is in reality a vast expansion of the uses to which Section 702 data may be used (affirmatively codifying, effectively, a move the IC made in 2015). It permits the use of 702 data in any criminal proceeding that “Affects, involves, or is related to” the national security of the United States (which will include proceedings used to flip informants on top of whatever terrorism, proliferation, or espionage and hacking crimes that would more directly fall under national security) or involves,

  • Death
  • Kidnapping
  • Serious bodily injury
  • Specified offense against a minor
  • Incapacitation or destruction of critical infrastructure (critical infrastructure can include even campgrounds!)
  • Cybersecurity, including violations of CFAA
  • Transnational crime, including transnational narcotics trafficking
  • Human trafficking (which, especially dissociated from transnational crime, is often used as a ploy to prosecute prostitution; the government also includes assisting undocumented migration to be human trafficking)

This effectively gives affirmative approval to the list of crimes for which the IC can use 702 information laid out by Bob Litt in 2015 (in the wake of the 2014 approval).

Importantly, the bill does not permit judicial review on whether the determination that something “affects, involves, or is related to” national security. Meaning Attorney General Jeff Sessions could decide tomorrow that it can collect the Tor traffic of BLM or BDS activists, and no judge can rule that’s an inappropriate use of a foreign intelligence program.

“So what?” you might ask, this is a foreign surveillance program. So what if they find evidence of child porn in the course of spying on designated foreign targets, and in the process turn it over to the FBI?

The reason this is a domestic spying program is because of two obscure parts of 702 precedent.

The 2014 exception permits NSA to collect Tor traffic — including the traffic of 430,000 Americans

First, there’s the 2014 exception.

In 2014, the FISC approved an exception to the rule that the NSA must detask from a facility when it discovers that a US person was using it. I laid out the case that the facilities in question were VPNs (collected in the same way PRISM would be) and Tor (probably collected via upstream collection). I suggested then that it was informed speculation, but it was more than that: the 2014 exception is about Tor (though I haven’t been able to confirm the technical details of it).

NSA is collecting Tor traffic, including the traffic of the 430,000 Americans each day who use Tor.

One way to understand how NSA gets away with this is to consider how the use of upstream surveillance with cybersecurity works. As was reported in 2015, NSA can use upstream for cybersecurity purposes, but only if that use is tied to known indicators of compromise of a foreign government hacking group.

On December 29 of last year, the Intelligence Community released a Joint Analysis Report on the hack of the DNC that was considered — for cybersecurity purposes — an utter shitshow. Most confusing at the time was why the IC labeled 367 Tor exit nodes as Russian state hacker indicators of compromise.

But once you realize the NSA can collect on indicators of compromise that it has associated with a nation-state hacking group, and once you realize NSA can collect on Tor traffic under that 2014 exception, then it all begins to make sense. By declaring those nodes indicators of compromise of Russian state hackers, NSA got the ability to collect off of them.

NSA’s minimization procedures permit it to retain domestic communications that are evidence of a crime

The FISC approved the 2014 exception based on the understanding that NSA would purge any domestic communications collected via the exception in post-tasking process. But NSA’s minimization procedures permit the retention of domestic communications if the communication was properly targeted (under targeting procedures that include the 2014 exception) and the communication 1) includes significant foreign intelligence information, 2) the communication includes technical database information (which includes the use of encryption), 3) contains information pertaining to an imminent threat of serious harm to life or property OR,

Such domestic communication does not contain foreign intelligence information but is reasonably believed to contain evidence of a crime that has been, is being, or is about to be committed. Such domestic communication may be disseminated  (including United States person identities) to appropriate law enforcement authorities, in accordance with 50 U.S.C. § 1806(b) and 1825(c), Executive Order No 12333, and, where applicable, the crimes reporting procedures set out in the August 1995 “Memorandum of Understanding: Reporting of Information Concerning Federal Crimes,” or any successor document.

So they get the data via the 2014 exception permitting NSA to collect from Tor (and VPNs). And they keep it and hand it off to FBI via the exception on NSA’s destruction requirements.

In other words, what Richard Burr’s bill does is affirmatively approve the use of Section 702 to collect Tor traffic and use it to prosecute a range of crimes, some of them potentially quite minor.


After the Ad Hominem Approach to Surveillance Reauthorization Fails, Spooks Now Revert to Secrecy

As I have noted, thus far the surveillance boosters’ favored approach to Section 702 reauthorization has been to engage in ad hominem attacks against people engaging in good faith in the legislative process (even while they, themselves, make what would most charitably be called significant errors). Even when people make a concerted effort to avoid such sloppy attacks — as FBI Director Christopher Wray did at a recent appearance — they still accuse others of believing in myths while ignoring their own myth-making.

But now Richard Burr and the spooks he caters to are adopting another approach: legislating in secret.

The SSCI is reportedly moving to mark up their own version of Section 702 reauthorization this week — a bill crafted by Senators Burr, Warner, Feinstein, and Cornyn. The make-up of the team is key: because Cornyn and Feinstein are also on Senate Judiciary, they can sink any alternate bill that moves through that committee (something Feinstein has been doing since at least 2009).

As Wyden says in a letter objecting to the secret mark-up,

Section 702 has been the subject of extensive public testimony, while relevant FISA Court orders, minimization procedures and other documents have been declassified and released to the public. In this context, the public is right to expect that Congress debate the reauthorization of this authority in the open. Indeed, a transparent legislative process is a fundamental hallmark of our democracy.

A bunch of NGOs have also called on Burr to make this mark-up public.

There are several likely reasons why Burr and the spooks want to craft their legislation in secret.

Perhaps most importantly, by holding a closed session, you delay by about a month and a half what happened in the session, what the cleared Senators debated, and the tactical means the Chair (in this case Burr) used to shut down reform suggestions. That’s what happened in 2012, when Feinstein delayed the release of the bill report for about that long, hiding details about Ron Wyden’s attempt to get a count of US persons affected by 702 (see these three posts — one, two, three — for details, though Wyden did manage to call Feinstein out for lying about FISC always finding the collection to be constitutional).

Indeed, I’d bet a lot of money that one reason Burr wants to have a secret mark-up is to the very same thing Feinstein did four years ago: hide the government’s lies about their alleged inability to do a count of how many Americans get sucked up as part of 702, and how.

But the other reason Burr and the spooks likely want to have a mark-up in secret is precisely because of the transparency won since 2013, they don’t have winning arguments anymore. While courts, because of the secrecy reviewing cases without any adversarial process and often not getting a full picture of how 702 works, have found 702 itself constitutional (though the Ninth Circuit largely dodged the question of back door searches), as more and more people understand how it works (and as white men watching the Mike Flynn case come to understand how fragile life can get for those picked up incidentally), the program seems problematic.

And even those who believe 702 in its current form serves an irreplaceable role in our surveillance system can see the need for no-nonsense reforms, such as requiring an amicus help review yearly reauthorization.

In other words, by hiding this mark-up, Burr is conceding that he can’t win this legislative battle democratically. He, and the spooks, have to cheat. And they’re willing to do so, to codify parts of this program that likely wouldn’t pass court review if done in a real adversarial process.

We are at a critical tipping point with surveillance in this country, as the government chips away at the technologies that allow individuals to retain some kind of privacy. And to ensure we slide over that tipping point and down the dangerous slope on the other side, a bunch of spooks and their servants are cowering from democracy.