Posts

Who Violated Their Designated Role: Ezra Cohen-Watnick or Susan Rice?

In the original version of the latest right wing claim — that Susan Rice requested that multiple incoming Trump figures’ names be unmasked in intercepts — Mike Cernovich describes the genesis of Devin Nunes’ concern this way:

The White House Counsel’s office identified Rice as the person responsible for the unmasking after examining Rice’s document log requests. The reports Rice requested to see are kept under tightly-controlled conditions. Each person must log her name before being granted access to them.

Upon learning of Rice’s actions, H. R. McMaster dispatched his close aide Derek Harvey to Capitol Hill to brief Chairman Nunes.

But as Eli Lake — fresh off having apologized for letting Devin Nunes use him — tells the story, close Mike Flynn associate Ezra Cohen-Watnick discovered it and brought the discovery to the White House Counsel’s office, whereupon he was told to “end his own research” on unmasking.

The pattern of Rice’s requests was discovered in a National Security Council review of the government’s policy on “unmasking” the identities of individuals in the U.S. who are not targets of electronic eavesdropping, but whose communications are collected incidentally. Normally those names are redacted from summaries of monitored conversations and appear in reports as something like “U.S. Person One.”

The National Security Council’s senior director for intelligence, Ezra Cohen-Watnick, was conducting the review, according to two U.S. officials who spoke with Bloomberg View on the condition of anonymity because they were not authorized to discuss it publicly. In February Cohen-Watnick discovered Rice’s multiple requests to unmask U.S. persons in intelligence reports that related to Trump transition activities. He brought this to the attention of the White House General Counsel’s office, who reviewed more of Rice’s requests and instructed him to end his own research into the unmasking policy.

This repeats a claim Lake had made in his earlier apology post, which he presented as one detail in the NYT version of this story that was not accurate.

Another U.S. official familiar with the affair told me that one of the sources named in the article, former Defense Intelligence officer Ezra Cohen-Watnick, did not play a role in getting information to Nunes. This official said Cohen-Watnick had come upon the reports while working on a review of recent Justice Department rules that made it easier for intelligence officials to share the identities of U.S. persons swept up in surveillance. He turned them over to White House lawyers.

But it adds the detail that Cohen-Watnick had been told to stand down. That would explain why Lake and others would want to claim that Cohen-Watnick wasn’t involved in dealing all this to Nunes: because he had already been told not to pursue it further. If the multiple accounts saying he was involved in the hand-off to Nunes, it appears he did.

The WaPo’s version of this included a detail not included by the right wingers: that Cohen-Watnick went to John Eisenberg, not Don McGahn, with his “discovery.” Eisenberg is significantly responsible, dating back to when he was at DOJ, for ensuring that ordinary Americans would be sucked up in surveillance under PRISM. For him to be concerned about the legal unmasking of Americans’ identities (to the extent that did exist — and the record is still unclear whether it did) is laughable.

The timing of Cohen-Watnick’s research — dating back to February — intersects in interesting ways with the timeline in this March 14 Politico story of H.R. McMaster’s attempt to sideline him, which was overruled by Steven Bannon.

On Friday [March 10], McMaster told the National Security Council’s senior director for intelligence programs, Ezra Cohen-Watnick, that he would be moved to another position in the organization.

The conversation followed weeks of pressure from career officials at the CIA who had expressed reservations about the 30-year-old intelligence operative and pushed for his ouster.

But Cohen-Watnick appealed McMaster’s decision to two influential allies with whom he had forged a relationship while working on Trump’s transition team — White House advisers Steve Bannon and Jared Kushner. They brought the matter to Trump on Sunday [March 12], and the president agreed that Cohen-Watnick should remain as the NSC’s intelligence director, according to two people with knowledge of the episode.

The House Intelligence Committee first asked NSA, CIA, and FBI for details on unmasking on March 15, the day after this story broke, at which point Nunes already knew of the White House effort. When Nunes first blew this up on March 22, he falsely claimed that that March 15 request had been submitted two weeks earlier.

It’s clear the right wing wants to shift this into Benghazi 2.0, attacking Susan Rice for activities that are, at least on the face of it, part of her job. But the only way the White House could be sure that she (or Ben Rhodes, who they’re also naming) were the ones to leak this would be to investigate not just those two, but also all the FBI (which would have access to this information without unmasking these names, which not a single one of these right wing scribes admit or even seem to understand). That is, the only way they could make credible, as opposed to regurgitated right wing propaganda accusations about leakers is to have spied even more inappropriately than they are accusing the Obama White House of doing.

Raw Versus Cooked: Could NSC Monitor FBI’s Investigation?

Multiple people,including Bart Gellman and Josh Marshall, are now arguing that the reason Ezra Cohen-Watnick and Michael Ellis found intercepts involving Trump’s people is that they were monitoring FBI’s investigation of the investigation.

I certainly think the Trump people would like to do that — and would be willing to stoop to that. I even believe that the response to the Russian hack last year had some counterintelligence problems, though probably not on the FBI side.

But there are some details that may limit how much the NSC can monitor the investigation.

First, Devin Nunes has always been very clear: the intercepts he was shown have nothing to do with Russia. That’s not, itself, determinative. After all, Cohen-Watnick and Ellis might have found a bunch of Russian intercepts, but only shared the non-Russian ones so Nunes could make a stink without being accused of endangering the investigation. Also, it’s possible that intercepts involving other countries — most notably Turkey, but there are other countries that might be even more interesting, including Ukraine or Syria — would impact any Russian investigation.

Also note that among the many things Nunes appears not to understand about surveillance is that there are two ways an American’s name can be visible outside the circle of analysts doing the initial review of them: their names can be put into finished intelligence reports that get circulated more broadly, with customers asking to have the name unmasked after the fact. Alternately, their names can be found off of subsequent searches of raw data. At the NSA and CIA, searches for US person content are somewhat controlled. At FBI they are not only not controlled, but they are routine even for criminal investigations. So if, say, General Flynn (or Paul Manafort) were under investigation for failing to register as a foreign agent, the FBI would routinely search their database of raw FISA material on his name. (These are the “back door searches” Ron Wyden has been screaming about for years, concerns which people like Devin Nunes have previously dismissed on national security grounds.) And we have every reason to believe that counterintelligence intercepts of Russians in the US are among the raw feeds that the FBI gets. So if Flynn had conversations with Russians (or Turks) in the US, we should assume that FBI saw them as a routine matter if Flynn became the subject of an investigation at all. We should also assume that the FBI did a search on every Sergey Kislyak intercept in their possession, so they will have read everything that got picked up, including all recorded calls with Trump aides.

On March 15, the House Intelligence Committee asked the NSA, CIA, and FBI for information on unmasking. I don’t believe that request asked about access to US person names on subsequent searches or raw material. Furthermore, at least as of last week, the FBI was not rushing to comply with that request. As I noted after the Jim Comey hearing before HPSCI, none of the Republicans concerned about these issues seemed to have any basic clue about FBI’s searches on raw data. If Nunes doesn’t know (and he appears not to), it’s unlikely Ellis knows, who was until this month Nunes’ aide.

But there’s one other thing that may prevent NSC from obtaining information about the investigation: FBI sometimes uses what are called “ad hoc databases” that include raw FISA data (and probably, post EO 12333 sharing rule changes, raw EO 12333 data) tied to particular investigations. It’s unclear what conditions might necessitate the use of an ad hoc database (see page 25ff for a discussion of them), but if security concerns would encourage their use, it would be likely to have one here, an investigation which Comey described as being so sensitive he delayed briefing the Gang of Four. Ad hoc databases are restricted to those working on investigations, and include specific records of those authorized to access the database. So if FBI were using an ad hoc database for this investigation, it would be even harder for the NSC to learn what they were looking at.

If the FBI’s investigation relies on raw intelligence — and it would be unfathomable that it does not, because it would probably receive the raw FISA data tied to such an investigation routinely, and EO 12333 sharing rules specifically envision the sharing of raw data associated with counterintelligence investigations — then the NSC’s access to finished intelligence reports would provide little insight into the investigation (Nunes was a bit unclear on whether that’s what he was looking at, but the entire premise of his complaints is that these were finished reports).

But while we’re worrying about whether and how Trump would monitor an investigation into his aides, remember that in 2002, Jay Bybee wrote a memo authorizing the sharing of grand jury information with the President and his close advisors including for counterintelligence investigations.

In addition, the Patriot Act recently amended 6(e) and Title III specifically to provide that matters involving foreign intelligence or counterintelligence or foreign intelligence information may be disclosed by any attorney for the government (and in the case of Title III, also by an investigative or law enforcement officer) to certain federal officials in order to assist those officials in carrying out their duties. Federal officials who are included within these provisions may include, for example, the President, attorneys within the White House Counsel’s Office, the President’s Chief of Staff, the National Security Advisor, and officials within the Central Intelligence Agency and the Department of Defense.

[snip]

Although the new provision in Rule 6(e) permitting disclosure also requires that any disclosures be reported to the district court responsible for supervising the grand jury, we conclude that disclosures made to the President fall outside the scope of the reporting requirement contained in that amendment, as do related subsequent disclosures made to other officials on the President’s behalf.

In other words, Trump could demand that he — or his National Security Advisor! — get information on any grand jury investigations, including those covering counterintelligence cases. And no judge would be given notice of that.

With Jeff Sessions’ recusal, that’s far less likely to happen than it might have been. But understand that the Executive Branch believes that the President can learn about the happenings in grand jury investigations of the sort that might target his aides.

Update: additional details have been added to this post after it was first posted.