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Hillary Clinton’s Three Devices

I really don’t want to get bogged down in the Hillary email story. But given the ongoing discussions about whether claims she used the personal server to avoid oversight have merit, I did two more things. First, I did this timeline. Without going into too much detail, there are decisions made after requests for emails that suggest avoiding oversight was driving some of this. That’s especially true given the conflicting stories from Paul Combetta pertaining to his actions in late 2014 and March 2015; he ended up deleting Hillary’s emails after being informed of the House Oversight request for them. He may have only revealed that with an immunity deal.

The other detail I want to focus on is the number of devices Hillary had. Hillary defenders often point to her claim that she used the Blackberry for convenience to claim she surely wasn’t avoiding oversight. But I think the FBI report shows that she had three devices, not just one.

Most of the attention on the number of her devices focuses on the fact that she had 13 serial BBs, none of which were handed over to the FBI (instead of her actual BBs,, Williams & Connolly turned over two other BBs, though without SIM or SD cards).

It is true that her 13 BBs were used serially, not at once, which makes Hillary Clinton just like Tom Brady in her serial use of phones: she’s just a famous person who likes to swap out her phones all the time. The difference being that Tom Brady was told he didn’t need to keep his phone, whereas Hillary was under record-keeping obligations even before any investigation started. And Brady at least had had his comms reviewed by lawyers before he deleted his phone.

But it’s not the 13 BB detail that poses problems to Hillary’s single device claim. It’s this passage.

screen-shot-2016-09-08-at-5-14-21-am

Justin Cooper, the Bill Clinton staffer who ran much of the tech in the Chappaqua basement, says that Hillary used both a Blackberry and a flip phone for calls. Huma Abedin and Cheryl Mills dispute that, though in terms that leave some wiggle room (curiously, FBI apparently didn’t ask Monica Hanley, who bought all of Hillary’s Blackberries). There were 2 phone numbers Hillary used, the latter of which only became the Blackberry number after her tenure as SoS. But footnote 8 reveals that there were 4 mobile devices that used what appears to be the second number during her tenure as SoS. This seems to indicate that Cooper is right: Hillary had both an email phone and a series of 4 telephony phones, the latter of which were not email capable.

The footnote makes clear FBI didn’t pursue these telephony phones because they were, by definition, outside the scope of an email leak investigation (which is one of the many reasons one needs to come to this report with an understanding of the narrow scope of the investigation). But any use of flip phones would not be outside the scope of an FRA investigation, because they undermine Hillary’s claim that she adopted the BBs for singe-device convenience.

Then there’s the passage on page 9 that shows there were also 5 iPads that were potentially used for emails, 3 of which were turned over to the FBI (indeed, one of them actually had draft emails from 2012). This suggests that at least during 2012, Hillary had still another device: 3 devices, not 1. She may not have used the iPads for email throughout her tenure, but she did, apparently, use them in some sense.

Finally, there are two more mysterious devices that aren’t accounted for: a personally-owned computer in both of Hillary’s 2 household SCIFs. Amid the discussion of those SCIFs (including the detail that both were not secure at times, which undermines claims that her only SCIF violation was bringing her BB just inside the State SCIF) is this detail.

According to Abedin, Cooper, and [redacted] there were personally-owned desktop computers in the SCIFs in Whitehaven and Chappaqua. Conversely, Clinton stated to the FBI she did not have a computer of any kind of the SCIFs in her residences. According to Abedin and Clinton, she did not use a computer, and she primarily used her BlackBerry or iPad for checking e-mails.

There is admittedly another conflict in the testimony here, between every aide asked and Hillary, but given that even Abedin and Hillary’s [redacted] staffer say there were personally-owned computers in the SCIFs, I tend to believe it.

But Abedin says Hillary didn’t use them, and I sort of believe that too. But that raises questions about 1) why personally-owned computers were in the SCIF in the first place, which is surely also a violation of SCIF rules, especially if Hillary didn’t use them, but also 2) who was using them. The passage also makes it clear Hillary’s aides had access to the SCIF so perhaps they were?

In any case, we can’t be certain given the redactions and conflicting testimony, but according to my count, Hillary probably had three parallel devices during her tenure as Secretary of State: her BB, a flip phone, and an iPad (the latter of which may or may not have been regularly used for comms, though it was at least briefly in 2012), as well as two SCIF desktops that she personally didn’t use.

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

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

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

The Misunderstandings of the Anti-Transparency Hillary-Exonerating Left

It wasn’t enough for Matt Yglesias to write a widely mocked piece calling for less transparency, now Kevin Drum has too. It all makes you wonder whether there’s some LISTERV somewhere — the successor to JOURNOLIST, from which leaked emails revealed embarrassing discussions of putting politics above principle, perhaps — where a bunch of center-left men are plotting about how to finally end the email scandal that Hillary herself instigated with a stupid decision to host her own email. Especially given this eye-popping paragraph in Drum’s piece:

Part of the reason is that Hillary Clinton is a real object lesson in how FOIA can go wrong when it’s weaponized. Another part is that liberals are the biggest fans of transparency, and seeing one of their own pilloried by it might make them take a second look at whether it’s gone off the rails. What we’ve seen with Hillary Clinton is not that she’s done anything especially wrong, but that a story can last forever if there’s a constant stream of new revelations. That’s what’s happened over the past four years. Between Benghazi committees and Judicial Watch’s anti-Hillary jihad, Clinton’s emails have been steadily dripped out practically monthly, even though there’s never been any compelling reason for it. It’s been done solely to keep her alleged corruption in the public eye.

Even setting aside that his piece generally ignores (perhaps, betrays no knowledge of) the widely-abused b5 exemption that already lets people withhold precisely the kinds of deliberations that Drum wants to kill FOIA over (and is used to withhold a lot more than that), this paragraph betrays stunning misunderstanding about the Clinton email scandal. Not least, the degree to which many of the delays have arisen from Clinton’s own actions.

It led me to go back to read this post, which engages in some cute spin and selective editing, but really gives up the game in this passage.

Oddly, the FBI never really addresses the issue of whether Hillary violated federal record retention rules. They obviously believe that she should have used a State email account for work-related business, but that’s about it. I suppose they decided it was a non-issue because Hillary did, in fact, retain all her emails and did, in fact, turn them over quickly when State requested them.

There’s also virtually no discussion of FOIA. What little there is suggests that Hillary’s only concern was that her personal emails not be subjected to FOIA simply because they were held on the same server as her work emails.

Of course the FBI never really addresses how Hillary violated the Federal Records Act. Of course the FBI never really addresses how Hillary tried to avoid FOIA. (Note too that Drum ignores that some of those “personal” emails have been found to be subject to FOIA and FRA and Congressional requests; they weren’t actually personal.)

That’s because this wasn’t an investigation into violating the Federal Records Act. As I wrote in this post summarizing Jim Comey’s testimony to Oversight and Government Reform:

The FBI investigation that ended yesterday only pertained to that referral about classified information. Indeed, over the course of the hearing, Comey revealed that it was narrowly focused, examining the behavior of only Clinton and four or five of her close aides. And it only pertained to that question about mishandling classified information. That’s what the declination was based on: Comey and others’ determination that when Hillary set up her home-brew server, she did not intend to mishandle classified information.

This caused some consternation, early on in the hearing, because Republicans familiar with Clinton aides’ sworn testimony to the committee investigating the email server and Benghazi were confused how Comey could say that Hillary was not cleared to have her own server, but aides had testified to the contrary. But Comey explained it very clearly, and repeatedly. While FBI considered the statements of Clinton aides, they did not review their sworn statements to Congress for truth.

That’s important because the committee was largely asking a different question: whether Clinton used her server to avoid oversight, Federal Record Act requirements, the Benghazi investigation, and FOIA. That’s a question the FBI did not review at all. This all became crystal clear in the last minutes of the Comey testimony.

Chaffetz: Was there any evidence of Hillary Clinton attempting to avoid compliance with the Freedom of Information Act?

Comey: That was not the subject of our criminal investigation so I can’t answer that sitting here.

Chaffetz: It’s a violation of law, is it not?

Comey: Yes, my understanding is there are civil statutes that apply to that. I don’t know of a crimin–

Chaffetz: Let’s put some boundaries on this a little bit — what you didn’t look at. You didn’t look at whether or not there was an intention or reality of non-compliance with the Freedom of Information Act.

Comey: Correct.

Having started down this path, Chaffetz basically confirms what Comey had said a number of times throughout the hearing, that FBI didn’t scrutinize the veracity of testimony to the committee because the committee did not make a perjury referral.

Chaffetz: You did not look at testimony that Hillary Clinton gave in the United States Congress, both the House and the Senate?

Comey: To see whether it was perjurious in some respect?

Chaffetz: Yes.

Comey: No we did not.

[snip]

Comey: Again, I can confirm this but I don’t think we got a referral from Congressional committees, a perjury referral.

Chaffetz: No. It was the Inspector General that initiated this.

Now, let me jump to the punch and predict that OGR will refer at least Hillary’s aides, and maybe Hillary herself, to FBI for lying to Congress. They might even have merit in doing so, as Comey has already said her public claims about being permitted to have her own email (which she repeated to the committee) were not true. Plus, there’s further evidence that Hillary used her own server precisely to maintain control over them (that is, to avoid FOIA).

As I said in my earlier post, I’m loathe to admit this, because I’d really like to be done with this scandal (I’d like, even more, to come up with sensible policy proposals like fixing email and text archiving to prevent this from happening in every presidential administration). All the questions about whether Hillary chose to keep her own server to avoid oversight (or, as Chaffetz asked today, to obstruct OGR’s investigation) has never been investigated by FBI. Those requests even have more merit than Democrats are making out — in part for precisely this reason, FBI has never considered at least some evidence to support the case Hillary deliberately avoided FRA, including a string of really suspicious timing. As I wrote in my other post, I also think they won’t amount to anything, in part because these laws (including laws prohibiting lying to Congress) are so toothless. But they are a fair question.

All that said, it is incorrect to take a report showing the FBI not charging Hillary for intentionally mishandling classified information and conclude from that that hers is an example of FRA and FOIA gone amuck. On the contrary. Hillary has never been exonerated for trying to avoid FOIA and FRA. The evidence suggests it would be hard to do that.

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

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

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

CIA Director Entry Number 2: Mike Morell, Fabulist

As Eli Lake wrote the other day, there are three men angling to be CIA Director under President Hillary: John Brennan, Mike Morell, and Mike Vickers.

I’ve already explained what is terrifying about Vickers’ audition to be CIA Director: after laying out the Hillary as Commander-in-Chief case (which appears to be mandatory for these things), Vickers then talks about how we need to escalate our wars and belligerence.

To be sure, we will need more aggressive counterterrorism strategies, stronger support for the Syrian opposition as the only plausible counterweight to authoritarianism and extremism within Syria, more effective counters to Iranian and Russian expansion, and better strategies for deterring and competing with China over the long term.

Henceforth, I will refer to Vickers as The Escalationist.

Today, Mike Morell submitted his audition to be CIA Director.

As Vickers did (these do seem to be formulaic), Morell lays out his extensive bipartisan past (Vickers claims service under 4 Republican and 2 Democratic Presidents, Morell claims 3 of each), then talks about how serving with Hillary convinced him she has the temperament to be Commander-in-Chief.

I spent four years working with Mrs. Clinton when she was secretary of state, most often in the White House Situation Room. In these critically important meetings, I found her to be prepared, detail-oriented, thoughtful, inquisitive and willing to change her mind if presented with a compelling argument.

Like Vickers, Morell lauds Hillary’s courage in pushing for the raid that killed Osama bin Laden.

Mrs. Clinton was an early advocate of the raid that brought Bin Laden to justice, in opposition to some of her most important colleagues on the National Security Council.

[snip]

I never saw her bring politics into the Situation Room. In fact, I saw the opposite. When some wanted to delay the Bin Laden raid by one day because the White House Correspondents Dinner might be disrupted, she said, “Screw the White House Correspondents Dinner.”

Disrupting White House Correspondents Dinner to kill someone would count as politics? Really?

Also like Vickers, Morell then lays out Trump’s lack of qualification for the job, both in terms of background and temperament.

But Morell’s gimmick — the brand that sets him apart on this quest to be CIA Director — is not an explicit call for escalation, but instead the specific gloss he puts on Trump’s soft spot for Putin. After portraying Trump’s careless claims as full endorsements of Putin, Morell claims Trump has been recruited by the old KGB officer, albeit unwittingly.

Mr. Putin is a great leader, Mr. Trump says, ignoring that he has killed and jailed journalists and political opponents, has invaded two of his neighbors and is driving his economy to ruin. Mr. Trump has also taken policy positions consistent with Russian, not American, interests — endorsing Russian espionage against the United States, supporting Russia’s annexation of Crimea and giving a green light to a possible Russian invasion of the Baltic States.

In the intelligence business, we would say that Mr. Putin had recruited Mr. Trump as an unwitting agent of the Russian Federation.

Don’t get me wrong. I’m all in favor in making political hay out of Trump’s call on Putin to hack Hillary, especially coming as it does from someone (unlike Jake Sullivan and Leon Panetta) without a known history of mishandling classified information.

But that line? “recruited Mr. Trump as an unwitting agent of the Russian Federation”? That’s all about the clicks, and it has been serving splendidly. Just like “Slam Dunk” was a nifty line.

In a piece auditioning to be CIA Director, I’d prefer someone stick more rigorously to the truth. Trump is an apologist for Putin, undoubtedly, but there’s no more evidence Putin has recruited Trump (unwittingly) than there is, say, the Saudis have recruited Hillary. They’re all just picking the assholes they champion, with Hillary picking the assholes we’ve long championed.

Then again, this is not the first time Morell has stretched the truth a bit — up to and including on torture, so we shouldn’t be surprised by the tactic.

So there you have it: The Escalationist versus The Fabulist, your first two contestants on the Price is Right CIA nomination competition.

Sadly, we probably won’t see something quite so explicit from Brennan (though it would be amusing to see if a third endorsement hewed so closely to the same script as the other two), so we’ll just have to accept Lake’s “drone warrior” brand for him.

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

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

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

What Price Victory?

Virtually the entire political class has now united to defeat Donald Trump, with Morning Joe today staging a Michael Hayden appearance that served largely to allow Scarborough to tell the story of Trump asking three times in a foreign policy briefing why the US couldn’t use its nukes. As Dan Drezner pointed out on Twitter, Scarborough says the event happened months ago — when the primary was still going on — but has just now staged its telling.

Beating Donald Trump is important. He’s a racist who aims to win by promising white working class people they can resume persecuting people of color again, and he is dangerously inconsistent. That said, he does want to spend lots on infrastructure and protect workers from the ravages of globalization, something often forgotten in depictions of him as entirely policy free.

But the transpartisan obsession with beating Trump has largely applauded two developments that, for liberals, for democrats, for those who believe in peace, for progressives, should be a worry.

First, the Neocon establishment has come out in enthusiastic support for Clinton, with ideologue Eliot Cohen orchestrating serial efforts (one that even includes John Yoo!!) to oppose Trump. They point to Trump’s erratic nature and more recently the theories of Putin’s influence. They do so even in the face of a report that Paul Manafort, through whom any Putin influence would be managed, is checking out.

I exchanged messages Tuesday evening with a longtime ally of Trump campaign manager Paul Manafort, whom I asked about who was calling the shots in the campaign. The response indicated that Manafort, a veteran of Republican politics brought in this spring for the transition from primaries to the general election, has lost control over his candidate.

“Manafort not challenging (Trump) anymore,” Manafort’s ally wrote. “Mailing it in. Staff suicidal.”

I’m getting whiplash following the Manchurian Trump stories. Maybe the ones suggesting Bill Clinton was behind the Trump run are the true ones after all.

And even while the focus has been on Russia’s alleged influence with Trump, there has been no focus on Hillary’s unquestioning support of Saudi Arabia (the country that had ties to 9/11) and Israel. Or on Hillary’s equally troubling policy proposals, such as starting a No Fly Zone over Russian planes.  As Will Bunch noted in a great column, Democrats have become the party that shuns people who chant No More War.

The delegates didn’t hear from an Andrew Bacevich or the equivalent of James Madison, but they did get Panetta, who — as noted in this excellent analysis — has supported expanded war powers for the White House, failed to push for real accountability on Bush-era torture, and once suggested that “a 30-year war” will be needed against terrorism. Was it really rude for some of the DNC delegates to chant “no more war!” during Panetta’s speech? Or were some citizens desperately trying to be heard with a different point of view, in a nation so eager to squelch any public debate?

It should be a scandal that the United States drops bombs from flying death robots or our obscenely expensive military jets over countries like Libya, swaths of Africa, or Syria based only on a 15-year-old congressional resolution passed after an attack carried out mostly by Saudi Arabians loyal to a terrorist group that barely exists in 2016. But we’re afraid of any frank discussion of that, or the recent admission by the Obama administration that U.S. military actions in nations with which we’re not technically at war have killed 116 innocent civilians. That’s a number that experts find ridiculously low, by the way, and doesn’t as include as many as 85 Syrian civilians who were killed in late July by a U.S. airstrike — a story that was all but ignored in the media. Even if you strongly believe that such collateral damage is necessary to defeat international terrorism, chanting “USA! USA!” to support militarism is both jingoistic and crudely callous toward the dead.

Not only has Hillary gotten the support of the people who brought us into Iraq based on a lie (she told her own little stretchers to get us into Libya), but we’re now drowning out any voice for peace.

Then there’s the parade of heinous billionaires Hillary has rolled out, with Mark Cuban, Mike Bloomberg, and now Meg Whitman. NYT’s coverage of Whitman’s announcement emphasizes that Hillary has been courting Republican billionaires since before she finalized the nomination and that Hillary’s pick of the pro-TPP pro-Wall Street Tim Kaine is what sealed the deal for Whitman.

Whitman, who said she would remain a Republican, brings with her a considerable network of contributors, some of whom she said were open to giving to Mrs. Clinton. She said she was willing to campaign for Mrs. Clinton, said she would do her best to gather checks for her campaign and indicated she would personally give to both Mrs. Clinton and her affiliated “super PACs.” An aide to Ms. Whitman said she would personally give at least an amount in the “mid-six figures” to the Clinton effort.

While Democrats openly appealed at their convention last week to Republicans uneasy with Mr. Trump, Mrs. Clinton and her top supporters have been making a similar cross-party pitch in private since before the Democratic nomination fight even came to its conclusion.

[snip]

She said she had told Mrs. Clinton that she wanted to see the two parties’ conventions and assess the running mates that each nominee chose before making her decision. When Mrs. Clinton selected Senator Tim Kaine of Virginia, a consensus-oriented figure, “that was a positive for me,” Ms. Whitman said.

Whitman’s nod to Kaine is of particular concern to me, as Democrats downplayed his anti-choice and pro-business policies, at least in public, until after the convention. Now, if anything happens to Hillary (who has some dangerously unhinged enemies), we’ll basically have a moderate Republican running the country.

It’s not just that Hillary has secretly been courting oligarchs since before she cemented the nomination. It’s that her post-convention politicking has focused on it, as if the approval of oligarchs is what it will take to win in midwest swing states.

The guy who will likely become Majority Leader is even more aggressively pursuing typical Republican voters (though this view — admittedly filtered through the potentially inaccurate National Review — has some huge logical contradictions, not to mention an odd idea of what it would take for Democrats to continue to win Illinois).

“No guarantees, there never are, but the odds are more like than not that we will take back the Senate,” Sen. Chuck Schumer said at a forum sponsored by the Washington Post Thursday afternoon. Schumer will be the next majority or minority leader of the Senate Democrats, depending upon how November unfolds. He suggested that the electorate’s sense of economic gloom was actually working to his party’s advantage: “The electorate is moving in a more Democratic direction. When middle class incomes decline, people tend to move in a more progressive direction.”

Schumer’s optimism is driven more by national demographics than by the specific traits of his candidates. He contends that Millennials, or voters aged 18 to 35, will be the largest age group voting in this year’s electorate, even if they don’t turn out in massive numbers.

“The number one factor in whether we retake the Senate is whether Hillary Clinton does well, and I think she’s going to do really well,” Schumer says of his former fellow New York senator. He notes that Senate Majority Leader Mitch McConnell urged Senate Republicans in difficult races to localize their elections, rather than get too tied to Trump’s positions and comments and scoffs, “Sorry, Mitch, this is a national election if there ever was one.”

At least publicly, Schumer has no worries about his party’s dwindling fortunes among working-class white voters. “For every blue-collar Democrat we lose in western Pennsylvania, we will pick up two moderate Republicans in the suburbs in Philadelphia, and you can repeat that in Ohio and Illinois and Wisconsin.”

Democrats, it appears, want to become the party of the Republican soccer mom, which may work well with the bellicose warmongering, but which seems to view economic malaise as an opportunity rather than a problem.

So yeah, by all means, let’s beat the orange crazy man.

But let’s also be cognizant of the more politically palatable craziness that gets embraced in the process.

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

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

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

On Responsible Sourcing for DNC Hack Stories

For some reason Lawfare thinks it is interesting that the two Democratic members of the Gang of Four — who have apparently not figured out there’s a difference between the hack (allegedly done by Russia) and the dissemination (done by Wikileaks, which has different motivations) are calling for information on the DNC hack to be released.

The recent hack into the servers of the Democratic National Committee (DNC) and the subsequent release via WikiLeaks of a cache of 20,000 internal e-mails, demonstrated yet again the vulnerability of our institutions to cyber intrusion and exploitation.  In its timing, content, and manner of release, the email dissemination was clearly intended to undermine the Democratic Party and the presidential campaign of Secretary Hillary Clinton, and disrupt the Democratic Party’s convention in Philadelphia.

[snip]

Specifically, we ask that the Administration consider declassifying and releasing, subject to redactions to protect sources and methods, any Intelligence Community assessments regarding the incident, including any that might illuminate potential Russian motivations for what would be an unprecedented interference in a U.S. Presidential race, and why President Putin could potentially feel compelled to authorize such an operation, given the high likelihood of eventual attribution.

For some equally bizarre reason, WaPo thinks Devin Nunes’ claim — in the same breath as he claims Donald Trump’s repeated calls on Russia to release Hillary’s email were sarcastic — that there is “no evidence, absolutely no evidence” that Russia hacked the DNC to influence the election is credible.

Rep. Devin Nunes (R-Calif.), the chairman of the House Intelligence Committee, told The Washington Post in an interview Wednesday that speculation about Russian attempts to sway the presidential election is unfounded.

“There is no evidence, absolutely no evidence, that the Russians are trying to influence the U.S. election,” Nunes said, repeatedly swatting away the suggestion made by some Democrats that the Russians may be using their intelligence and hacking capabilities to boost Donald Trump’s chances.

“There is evidence that the Russians are actively trying to hack into the United States — but it’s not only the Russians doing that. The Russians and the Chinese have been all over our networks for many years.”

These are two obvious (because they’re on the record) examples of partisans using their access to classified information to try to boost or refute a narrative that the Hillary Clinton campaign has explicitly adopted: focusing on the alleged Russian source of the hack rather on the content of the things the hack shows.

Kudos to Richard Burr, who is facing a surprisingly tough reelection campaign, for being the one Gang of Four member not to get involved in the partisan bullshit on this.

There are plenty of people with no known interest in either seeing a Trump or a Clinton presidency that have some measure of expertise on this issue (this is the rare moment, for example, when I’m welcoming the fact that FBI agents are sieves for inappropriate leaks). So no outlet should be posting something that obviously primarily serves the narrative one or the other candidate wants to adopt on the DNC hack without a giant sign saying “look at what partisans have been instructed to say by the campaign.” That’s all the more true for positions, like the Gang of Four, that we’d prefer to be as little politicized as possible. Please don’t encourage those people to use their positions to serve a partisan narrative, I beg of you!

For the same reason I’m peeved that Harry Reid suggested the Intelligence Community give Trump fake intelligence briefings. Haven’t we learned our lesson about politicizing intelligence?

More generally, I think journalists should be especially careful at this point to make it clear whether their anonymous sources have a partisan dog in this fight, because zero of those people should be considered to be unbiased when they make claims about the DNC hack.

A very special case of that comes in stories like this, where Neocon ideologue Eliot Cohen, identified as Bush appointee, is quoted attacking Trump for suggesting Russia should leak anymore emails.

But now Republican-aligned foreign policy experts are also weighing in along similar lines.

“It’s appalling,” Dr. Eliot A. Cohen, who was counselor of the State Department during the second term of George W. Bush’s presidency, said to me today. “Calling on a foreign government to go after your opponent in an American election?”

Cohen recently organized an open letter from a range of GOP national security leaders that denounced Trump in harsh terms, arguing that Trump’s “own statements” indicate that “he would use the authority of his office to act in ways that make America less safe, and which would diminish our standing in the world.” The letter said: “As committed and loyal Republicans, we are unable to support a Party ticket with Mr. Trump at its head. We commit ourselves to working energetically to prevent the election of someone so utterly unfitted to the office.”

But this latest from Trump, by pushing the envelope once again, raises the question of whether other prominent Republicans are ever going to join in.

For instance, to my knowledge, top national security advisers to George W. Bush, such as Stephen Hadley and Condoleezza Rice (who was also secretary of state), have yet to comment on anything we’ve heard thus far from Trump. Also, there could theoretically come a point where figures like former Defense Secretary Donald Rumsfeld and possibly even Dubya and George H.W. Bush feel compelled to weigh in.

Meanwhile, senior Republican elected officials who have backed Trump continue to refrain from taking on his comments forcefully or directly. Some Republicans actually defended Trump’s comments today. Paul Ryan’s spokesman issued a statement saying this: “Russia is a global menace led by a devious thug. Putin should stay out of this election.”

I feel differently about Trump’s asinine comment than I do about attribution of the attack. I’m all in favor of Hillary’s campaign attacking Trump for it, and frankly Cohen is a far more credible person to do so than Jake Sullivan and Leon Panetta, who also launched such attacks yesterday, because as far as I know Cohen has not mishandled classified information like the other two have.

But I would prefer if, rather than IDing Cohen as one of the Republicans who signed a letter opposing Trump, Greg Sargent had IDed him as someone who has also spoken affirmatively for Hillary.

On foreign policy, Hillary Clinton is far better: She believes in the old consensus and will take tough lines on China and, increasingly, Russia. She does not hesitate to make the case for human rights as a key part of our foreign policy. True, under pressure from her own left wing, she has backtracked on the Trans-Pacific Partnership, a set of trade deals that supports American interests by creating a counterbalance to China and American values by protecting workers’ rights. But she might edge back toward supporting it, once in.

Admittedly, this was at a time when Cohen and others still hoped some Mike Bloomberg like savior would offer them a third choice; that was before Bloomberg gave a very prominent speech endorsing Hillary last night.

Here’s the thing. The Neocons (led by Robert Kagan, who’s wife got named as a target of Russian aggression in the Feinstein-Schiff letter) are functioning as surrogates for Hillary just like top Democrats are. They are, just like Democrats are, now scrambling to turn their endorsements into both policy and personnel wins. Therefore we should no more trust the independence of a pro-Hillary Neocon — even if he did work for George Bush — than we would trust the many Democrats who have used their power to help Hillary win this election. Progressives should be very wary about the promises Hillary has made to get the growing number of Neocons (and people like Bloomberg) to so aggressively endorse her. Because those endorsements will come with payback, just like union or superdelegate endorsements do.

In any case, it’s hard enough to tease out attribution for two separate hacks and the subsequent publication of the hacked data by Wikileaks. Relying on obviously self-interested people as sources only further obscures the process.

Update: The Grammar Police actually nagged me to fix “whose/who’s” error in the Kagan sentence. Fun!

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

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

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

The Other Factor in the DNC Hack: WikiLeaks’ Personal War with Hillary Clinton

Since yesterday, both Jack Goldsmith and Peter Singer have had offered some interesting perspective on the alleged Russian hack of the DNC.

Singer had a bit of a Twitter rant.

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His linked (recent) Oversight testimony which discussed how much more complex cyber deterrence is than Cold War nuclear deterrence is.

For his part, Goldsmith first considered what was old and new in the hack, finding the only real new thing was releasing the emails.

While there is nothing new in one nation using its intelligence services to try to influence an election in another, doing so by hacking into a political party’s computers and releasing their emails does seem somewhat new.

He then dismissed the notion — floated elsewhere — that this amounts to cyberwar while implying that the US has to get far better at defending our own networks and systems.

How seriously do you think the government takes issues of cyberwarfare? Do you feel confident about our defensive capabilities and competence?

“Cyberwar” is a misleading term—the Russian hack, if it is that, is not an act of war, at least not by traditional standards. It is closer to an intelligence operation with the twist of a damaging publication of the stolen information. That said, the U.S. government takes all major cyberoperations against it and its major public and private institutions very seriously. My confidence about our defensive capabilities and competence depends on what institutions you are talking about. Today, some components of the government (e.g. the Defense Department) do better than others (e.g. the Office of Personnel Management, which recently suffered an very damaging hack). And private sector defenses, even of important critical infrastructure networks, are a very mixed bag. The scale of the challenge is enormous, and offense has many advantages over defense. I don’t know anyone who is sanguine about our defensive capabilities overall.

Then he went on a Twitter rant directed at the hand-wringing about how unusual this is.

1/ In assessing the DNC hack, remember that USG is no innocent when it comes to infiltrating foreign computer networks.

2/ The cyber-attack on Iranian nuclear centrifuges was one of the most consequential in history.

3/ USG openly & aggressively supports technologies that weaken foreign gov’t control over networks.

[snip]

6/ It’s also well known that US has in past used covert ops to influence foreign elections.

7/ Current U.S. cyber-espionage almost certainly extends to political organizations in adversary states.

[snip]

11/ The point is that USG plays rough in cyberspace, and should expect others to do so as well.

12/  And yet USG seems perpetually unprepared. DNC hack is tiny tip of iceberg of possible electoral disruptions via cyber.

In short, both think this is something other than cyberwar, but view the importance of it differently (even while both provide suggestions for a policy framework to respond), particularly the uniqueness of the perceived sabotage of the election. But their discussion (along with virtually everyone else’s) has pitched this as a two-front question, us against Russia, though Singer’s testimony has a lot of discussion about how much more complexity there is to this issue, including the non-state actors who might be involved.

After having dismissed the unthinking equation of 2 intelligence hacks = Guccifer = Russia = WikiLeaks = Russia story, I want to return to it to complicate matters somewhat, to talk about Wikileaks role whether or not it cooperated with Russia on this. First, what follows is in no way meant to be a defense of Wikileaks’ action here, which included the inclusion of credit card and social security information in the dump. Particularly against the background of what it recently did with Turkish documents: in the guise of releasing a bunch of Erdogan documents, it also dumped voting information on most women in Turkey, including whether or not they were members of Erdogan’s AKP.

WikiLeaks also posted links on social media to its millions of followers via multiple channels to a set of leaked massive databases containing sensitive and private information of millions of ordinary people, including a special database of almost all adult women in Turkey.

Yes — this “leak” actually contains spreadsheets of private, sensitive information of what appears to be every female voter in 79 out of 81 provinces in Turkey, including their home addresses and other private information, sometimes including their cellphone numbers. If these women are members of Erdogan’s ruling Justice and Development Party (known as the AKP), the dumped files also contain their Turkish citizenship ID, which increases the risk to them as the ID is used in practicing a range of basic rights and accessing services. The Istanbul file alone contains more than a million women’s private information, and there are 79 files, with most including information of many hundreds of thousands of women.

[snip]

Another file appears to contain sensitive information, including Turkish citizenship IDs of what appears to be millions of AKP members, listed as active or deceased. Yet another file contains the full names, citizenship IDs and cellphone numbers of hundreds of thousands of AKP election monitors — the most active members of the party.

As Zeynep Tufekci points out, in the wake of the failed coup and Erdogan’s retaliation, this has the possibility of endangering a great number of people.

She blames the dump on Wikileaks’ failure to work with locals, who could have explained that the emails themselves were virtually worthless. Perhaps. Perhaps Wikileaks served as someone else’s useful idiots — or even, if you believe there’s something more deliberate behind the coup and counter-coup, perhaps Wikileaks played a more active role.

So Wikileaks has done two things that were egregious and damaging. I do not defend that. I condemn it (and the sloppy journalism that enabled it).

Update: see this post on where the Turkey files came from, which came from Phineas Fisher; it wasn’t Wikileaks.

But I want to consider how different its role is with the target of this leak — Hillary Clinton (and Democrats more generally) — and Turkey.

Most of the discussion about the where and whyfor of the leak assumes it is all about Russia’s interest (assuming, of course, that this was a Russian state hack). But consider why Wikileaks might want to leak in this way and at this time.

Hillary was, of course, Secretary of State when Wikileaks leaked the State department cables and pushed aggressively for Chelsea Manning’s prosecution (as Charlie Savage wrote in a piece published just before I finished this, this is a point Assange made when he discussed the emails 6 weeks ago). She has, since then, been found to treat information claimed to be far more sensitive in careless fashion (as has the State Department generally).

Very importantly, State worked closely with DOJ as it investigated Wikileaks. There is very good reason to believe that as part of that investigation, DOJ mapped out Wikileaks’ supporters and, possibly, financial contributors — that is, precisely the kind of people, to the DNC, that Wikileaks just doxxed. That’s arguably a violation of Section 215, which includes First Amendment protections.

We also know that GCHQ was (at least as a SIGDEV research project, but those often serve to conduct surveillance that wouldn’t really fly within other legal guidelines) collecting log files of people who visit Wikileaks.

We know that under pressure from the US government, traditional funding sources stopped taking donations for Wikileaks. I’ve seen hints of some legally dubious action that may be worse, as well. In addition, in 2012, the FBI considered Bitcoin donations to Wikileaks among the many nefarious things one could do with Bitcoin.

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Love or hate Wikileaks, but it — and its political and financial supporters — were tracked. Its sources of funding were cut off. And then the government realized that Wikileaks (at that point, at least) was engaging in what a lot of media outlets also do and conceded it couldn’t charge Assange for those activities.

Now I’m not trying to say two wrongs make a right — that because FBI collected data implicating innocent supporters of Wikileaks, it is okay for Julian Assange to dox all the DNC’s supporters.

Rather, I’m trying to raise this in the context of the issues that Singer and Goldsmith lay out. Whether Wikileaks cooperated with Russia (if Russia did the hack) or not, it is a key player in this leak. Even if Russia did this to help Trump, Assange executed the leaks to maximal damage to Hillary (and I suspect Wikileaks will continue to do more damage with further leaks). What does this say about issues of retaliation against non-state actors working with the sphere of state actors, as people consider information war in the era of cyber?

I don’t know the answer to that, but as we raise the question, those issues need to be addressed as readily as the state actor question. The way this rolls out may be as much a question of a non-state actor retaliating against a political figure as it is a state actor trying to elect its preferred candidate.

 

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

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

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

TPP and Democratic Self-Delusion

After months of telling Bernie Sanders to drop out, the political chatterers are finally understanding one reason he did not do so: to maintain leverage over things like the party platform. After the platform was finalized yesterday, Bernie declared victory.

Pressed by supporters of U.S. Sen. Bernie Sanders, Democratic Party platform writers meeting this weekend in Orlando, Florida, adopted a progressive agenda that underscores the need for bold action on climate change, addresses criminal justice reform and calls for doubling the federal minimum wage.

“We have made enormous strides,” Sanders said. “Thanks to the millions of people across the country who got involved in the political process – many for the first time – we now have the most progressive platform in the history of the Democratic Party.”

The Platform Committee also adopted an amendment focused on criminal justice reform which calls for an investigation by the Department of Justice to investigate all shootings involving police officers.

The platform that will be submitted at the Democratic National Convention later this month in Philadelphia also would support Congress putting a price on carbon and methane to discourage continued use of fossil fuels that are causing severe climate change. The platform also says lawmakers must consider the impact on the climate in all federal decisions and invest heavily in wind and solar power rather than natural gas.

Delegates allied with Hillary Clinton’s and Sanders’ campaigns also passed amendments to fight for a $15 federal minimum wage tied to inflation, urged passage of progressive immigration reform and called for legalization of marijuana.

There were three issues, however, where Sanders’ delegates lost: opposition to Israeli settlements, a ban on fracking, and opposition to the Trans-Pacific Partnership.

The first two make sense: after all, those policy positions match Hillary’s stated position (though the US is supposed to be opposed to illegal settlements), so rejecting Sanders’ amendments equated to backing the nominee instead. That’s the way it’s supposed to work.

But Hillary, of course, claimed to oppose the TPP during the primary, even if that claim was always sketchy coming as it did as she worked so hard to negotiate the crappy deal as Secretary of State. So the mealy-mouthed language in the platform about protecting workers — akin to the same language in the Colombia Trade Deal that did squat to protect workers — is more notable.

As is the idiotic opinion expressed by this person, described by Robert Reich as an acquaintance from the Clinton White House.

ACQUAINTANCE: “Don’t you think your blog post from last night was a bit harsh?”

ME: “Not at all. The Democratic Party is shooting itself in the foot by not officially opposing the Trans Pacific Partnership.”

[They talk about how the Democrats are supporting this to back the President.]

ME: “But it’s terrible policy. And it’s awful politics. It gives Trump a battering ram. Obama won’t be president in six months. Why risk it?”

ACQ: “They don’t see much of a risk. Most Americans don’t know or care about the TPP.”

ME: “But they know big corporations are running economic policy. They think the whole system is corrupt. Believe me, Trump will use this against Hillary.”

ACQ: “He can’t. She’s inoculated. She’s come out against the TPP.”

ME: “But it’s her delegates who voted not to oppose it in the Democratic platform. Her fingerprints are all over this thing.”

Trump may not have many articulated policy positions, but his stance against TPP has been consistent and (unsurprisingly loud). Reich is right: to the extent that platforms mean anything at all, this will be used by Trump to pitch Democrats as sell-outs to American workers.

And the notion that voters won’t react against TPP is insulting. Sure, they may not know how specifically bad TPP is, but workers do know that NAFTA sucked. And Trump is certainly capable of equating the two.

Whoever this person is, by nature of being a Hillary advisor, he or she is supposed to be a technocratic elite. But this is idiotic, both from a policy and a political perspective.

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

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

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

Jim Comey, Poker Face, and the Scope of the Clinton Investigation(s)

Screen Shot 2016-07-07 at 10.11.04 PMI write this post reluctantly, because I really wish the Hillary investigations would be good and over. But I don’t think they are.

After having watched five and a half hours of the Clinton investigation hearing today, I’ve got new clarity about what the FBI has been doing for the last year. That leads me to believe that this week’s announcement that DOJ will not charge Clinton is simply a pause in the Clinton investigation(s). I believe an investigation will resume shortly (if one is not already ongoing), though that resumed investigation will also end with no charges — for different reasons than this week’s declination.

First, understand how this all came about. After the existence of Hillary’s server became known, State’s IG Steve Linick started an investigation into it, largely focused on whether Hillary (and other Secretaries of State) complied with Federal Records Act obligations. In parallel, as intelligence agencies came to complain about State’s redactions of emails released in FOIA response, the Intelligence Committee Inspector General Charles McCullough intervened in the redaction process and referred Clinton to the FBI regarding whether any classified information had been improperly handed. As reported, State will now resume investigating the classification habits of Hillary and her aides, which will likely lead to several of them losing clearance.

The FBI investigation that ended yesterday only pertained to that referral about classified information. Indeed, over the course of the hearing, Comey revealed that it was narrowly focused, examining the behavior of only Clinton and four or five of her close aides. And it only pertained to that question about mishandling classified information. That’s what the declination was based on: Comey and others’ determination that when Hillary set up her home-brew server, she did not intend to mishandle classified information.

This caused some consternation, early on in the hearing, because Republicans familiar with Clinton aides’ sworn testimony to the committee investigating the email server and Benghazi were confused how Comey could say that Hillary was not cleared to have her own server, but aides had testified to the contrary. But Comey explained it very clearly, and repeatedly. While FBI considered the statements of Clinton aides, they did not review their sworn statements to Congress for truth.

That’s important because the committee was largely asking a different question: whether Clinton used her server to avoid oversight, Federal Record Act requirements, the Benghazi investigation, and FOIA. That’s a question the FBI did not review at all. This all became crystal clear in the last minutes of the Comey testimony.

Chaffetz: Was there any evidence of Hillary Clinton attempting to avoid compliance with the Freedom of Information Act?

Comey: That was not the subject of our criminal investigation so I can’t answer that sitting here.

Chaffetz: It’s a violation of law, is it not?

Comey: Yes, my understanding is there are civil statutes that apply to that. I don’t know of a crimin–

Chaffetz: Let’s put some boundaries on this a little bit — what you didn’t look at. You didn’t look at whether or not there was an intention or reality of non-compliance with the Freedom of Information Act.

Comey: Correct.

Having started down this path, Chaffetz basically confirms what Comey had said a number of times throughout the hearing, that FBI didn’t scrutinize the veracity of testimony to the committee because the committee did not make a perjury referral.

Chaffetz: You did not look at testimony that Hillary Clinton gave in the United States Congress, both the House and the Senate?

Comey: To see whether it was perjurious in some respect?

Chaffetz: Yes.

Comey: No we did not.

[snip]

Comey: Again, I can confirm this but I don’t think we got a referral from Congressional committees, a perjury referral.

Chaffetz: No. It was the Inspector General that initiated this.

Now, let me jump to the punch and predict that OGR will refer at least Hillary’s aides, and maybe Hillary herself, to FBI for lying to Congress. They might even have merit in doing so, as Comey has already said her public claims about being permitted to have her own email (which she repeated to the committee) were not true. Plus, there’s further evidence that Hillary used her own server precisely to maintain control over them (that is, to avoid FOIA).

That said, there are two reasons why Hillary and her aides won’t be prosecuted for lying to Congress: James Clapper and Scott Bloch.

Clapper you all know about. The Director of National Intelligence — unlike Clinton — was not under oath when he spectacularly lied to Ron Wyden. Nor was he referred to DOJ for prosecution. But that recent lie will make FBI hesitate.

DOJ will hesitate even more given the history of Scott Bloch. bmaz has written a slew of posts about this but the short version is that the former Office of Special Counsel lied to this very committee and wiped his hard drive to obscure that fact. He ultimately pled guilty, but when the magistrate handling the case pointed out that the plea carried a minimum one month sentence, Bloch and DOJ went nuts and tried to withdraw his plea. bmaz and a bunch of whistleblowers who had been poorly treated by Bloch went nuts in turn. All to no avail. After DOJ claimed there were secret facts that no one understood, the court agreed to sentence Bloch to just one day in jail.

In other words, to keep one of their own out of jail, DOJ made expansive claims about how unimportant lying to Congress is. Even assuming DOJ would ignore their own recent historical claims about the frivolity of lying to Congress, Hillary’s lawyers could use that precedent to argue that lying to Congress has, effectively, been decriminalized (unilaterally by the Executive Branch!).

So FBI will investigate it. Comey might even refer, this time, for prosecution, because the evidence is actually far stronger that Hillary used her own server to avoid oversight (and that she was less than forthcoming about that to Congress). But that, too, won’t be prosecuted because you basically can’t prosecute lying to Congress after the Bloch case.

Which brings me to the funniest part of this exchange with Chaffetz (which, coming as it did in the last minutes of the hearing, has escaped most notice).

Chaffetz: Did you look at the Clinton Foundation?

Comey: I’m not going to comment on the existence or non-existence of any other investigation.

Chaffetz: Was the Clinton Foundation tied into this investigation?

Comey: I’m not going to answer that.

Understand: Comey had already commented on the existence or non-existence of other investigations, commenting at length on the non-investigation of questions pertaining to FOIA and FRA, even describing how many people (four to five) were subjects of this investigation. Comment on non-existence of investigation, comment on non-existence of investigation, comment on non-existence of investigation.

And for what it’s worth, the Clinton Foundation probably couldn’t have been part of the scope of this, given that this was only focused on four to five people (note, a Clinton Foundation investigation would better explain why FBI gave Brian Pagliano immunity, another topic on which Comey would not comment).

But when asked about the Clinton Foundation, he claimed he couldn’t say. All of a sudden, refusal to comment on existence or non-existence of investigation.

Now, I’m just going to say I don’t think anything will come of that, because I doubt FBI would clear Hillary on one issue but not the related one (plus, given SCOTUS’ ruling in the Bob McDonnell case, it probably became impossible to prosecute any Clinton Foundation violations). But Comey’s answer does make it clear that FBI considers questions about improperly handling classified information, avoiding FOIA and other oversight, lying about avoiding FOIA, and deals made with the Clinton Foundation to be different things.

I think that doesn’t change that Hillary won’t be indicted. But I do think she will continue to be investigated in conjunction with questions about what she did and said to avoid FOIA and other oversight.

Update: This post has been tweaked.

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

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

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

The CIA Is Preventing Congress from Learning that the Worst Allegations against Hillary Pertain to Drones

You probably heard that Jim Comey testified to the House Oversight Committee for over four hours today. You’ll see far less coverage of the second panel in that hearing, the testimony of Inspector Generals Steve Linick (from State) and Charles McCullough (from the IC).

In addition to OGR Chair Jason Chaffetz suggesting the committee convene a secrecy committee akin to the one Senator Daniel Patrick Moynihan convened back in the 1990s (which would be very exciting), McCullough revealed something rather startling regarding a letter he sent to Congress back in January (this was first reported by Fox). The letter was his official notice to Congress that some of the information in Hillary’s emails was claimed by an agency he didn’t name to be Special Access.

To date, I have received two sworn declarations from one IC element. These declarations cover several dozen emails containing classified information determined by the IC element to be at the CONFIDENTIAL, SECRET, and TOP SECRET/SAP levels. According to the declarant, these documents contain information derived from classified IC element sources. Due to the presence of TOP SECRET/SAP information, I provided these declarations under separate cover to the Intelligence oversight committees and the Senate and House leadership.

By sending the email, McCullough made the SAP information very public, without providing information about whether the claim was very credible.

Shortly after the Fox report, Politico reported that the emails pertained to CIA drone strikes and related fallout in Pakistan.

However, the emails now deemed to contain “top secret, special access program” information are in addition to the messages previously disputed between State and the Director of National Intelligence, according to a spokesperson for McCullough. The official said the intelligence community review group is wrapping up its look into the documents and is putting these documents in the SAP category.

The Central Intelligence Agency is the agency that provided the declarations about the classified programs, another U.S. official familiar with the situation told POLITICO Wednesday.

The official, who spoke on condition of anonymity, said some or all of the emails deemed to implicate “special access programs” related to U.S. drone strikes. Those who sent the emails were not involved in directing or approving the strikes, but responded to the fallout from them, the official said.

The information in the emails “was not obtained through a classified product, but is considered ‘per se’ classified” because it pertains to drones, the official added. The U.S. treats drone operations conducted by the CIA as classified, even though in a 2012 internet chat Presidential Barack Obama acknowledged U.S.-directed drone strikes in Pakistan.

WSJ reported last month that what are presumably the same emails included discussions among State Department officials about upcoming drone strikes.

The vaguely worded messages didn’t mention the “CIA,” “drones” or details about the militant targets, officials said.

The still-secret emails are a key part of the FBI investigation that has long dogged Mrs. Clinton’s campaign, these officials said.

They were written within the often-narrow time frame in which State Department officials had to decide whether or not to object to drone strikes before the CIA pulled the trigger, the officials said.

Law-enforcement and intelligence officials said State Department deliberations about the covert CIA drone program should have been conducted over a more secure government computer system designed to handle classified information.

State Department officials told FBI investigators they communicated via the less-secure system on a few instances, according to congressional and law-enforcement officials. It happened when decisions about imminent strikes had to be relayed fast and the U.S. diplomats in Pakistan or Washington didn’t have ready access to a more-secure system, either because it was night or they were traveling.

In other words, there has been a great deal of reporting on what are almost surely the emails in question, revealing that the key dispute pertains to an issue that CIA likes to pretend we don’t all know about, drone strikes in Pakistan.

In today’s hearing, McCullough reported that these emails — in addition to being a Special Access Program — are also classified Originator Controlled, ORCON, and the CIA (which he still didn’t name) has been refusing to distribute the emails or the statement beyond the original dissemination, the Intel committees and congressional leadership. So, in spite of the fact that numerous members of Congress have asked for more information (including, in today’s hearing, Chaffetz), they’ve been denied it. McCullough explained he had had to get his own staffers read into this, and he has gone back to the CIA (again, which he didn’t name) several times, only to have them refuse further distribution.

It may well be that the actual language used in the most sensitive emails revealed highly classified information — or it may be, as the WSJ reported, that State aides used a kind of code hiding the jist of their conversations.

Or it may be that State discussed a particularly controversial drone strike, such as the time CIA launched a drone strike right after Ray Davis was freed from Pakistani custody, which Jim White wrote about in a longer post suggesting CIA used drone strikes to retaliate against Pakistani action we don’t like.

Drone strikes in Pakistan by the US have occasionally been interrupted by various diplomatic issues. For example, there was a lull of over a month at the height of negotiations over the release of Raymond Davis. One of the most notorious US drone strikes was on March 17, 2011, the day after Raymond Davis was released. This signature strike killed over 40, and despite US claims (was that you, John Brennan?), that those killed “weren’t gathering for a bake sale” it was later determined that the majority of those killed were indeed civilians at a jirga to discuss local mineral rights. Because it was so poorly targeted, this strike always stood out in my mind as the product of an attitude where high-level US personnel demanded a target, no matter how poorly developed, simply to have something to hit since drone strikes had been on hold over the Davis negotiations and there was a need to teach Pakistan a lesson.

One way or another, though, these are topics that Congress (especially the Foreign Affairs Committees, which almost certainly have been denied these details) should be able to review.

But CIA is — as is their wont — playing classification games to ensure that a broader cross-section of Congress can’t assess how egregious this particular classification violation was.

Which, given CIA’s history, tends to mean either it wasn’t — or CIA has something to hide.

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

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

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

Some Legislative Responses to Clinton’s Email Scandal

The Republicans have reverted to their natural “Benghazi witchhunt” form in the wake of Jim Comey’s announcement Tuesday that Hillary Clinton and her aides should not be charged, with Comey scheduled to testify before the House Oversight Committee at 10 AM.

Paul Ryan wrote a letter asking James Clapper to withhold classified briefings from Hillary. And the House Intelligence Committee is even considering a bill to prevent people who have mishandled classified information from getting clearances.

In light of the FBI’s findings, a congressional staffer told The Daily Beast that the House Intelligence Committee is considering legislation that could block security clearances for people who have been found to have mishandled classified information in the past.

It’s not clear how many of Clinton’s aides still have their government security clearances, but such a measure could make it more difficult for them to be renewed, should they come back to serve in a Clinton administration.

“The idea would be to make sure that these rules apply to a very wide range of people in the executive branch,” the staffer said. (Clinton herself would not need a clearance were she to become president.)

It’s nice to see the same Republicans who didn’t make a peep when David Petraeus kept — and still has — his clearance for doing worse than Hillary has finally getting religion on security clearances.

But this circus isn’t really going to make us better governed or safer.

So here are some fixes Congress should consider:

Add some teeth to the Federal/Presidential Records Acts

As I noted on Pacifica, Hillary’s real crime was trying to retain maximal control over her records as Secretary of State — probably best understood as an understandable effort to withhold anything potentially personal combined with a disinterest in full transparency. That effort backfired spectacularly, though, because as a result all of her emails have been released.

Still, every single Administration has had at least a minor email scandal going back to Poppy Bush destroying PROFS notes pertaining to Iran-Contra.

And yet none of those email scandals has ever amounted to anything, and many of them have led to the loss of records that would otherwise be subject to archiving and (for agency employees) FOIA.

So let’s add some teeth to these laws — and lets mandate and fund more rational archiving of covered records. And while we’re at it, let’s ensure that encrypted smart phone apps, like Signal, which diplomats in the field should be using to solve some of the communication problems identified in this Clinton scandal, will actually get archived.

Fix the Espionage Act (and the Computer Fraud and Abuse Act)

Steve Vladeck makes the case for this:

Congress has only amended the Espionage Act in detail on a handful of occasions and not significantly since 1950. All the while, critics have emerged from all corners—the academy, the courts, and within the government—urging Congress to clarify the myriad questions raised by the statute’s vague and overlapping terms, or to simply scrap it and start over. As the CIA’s general counsel told Congress in 1979, the uncertainty surrounding the Espionage Act presented “the worst of both worlds”:

On the one hand the laws stand idle and are not enforced at least in part because their meaning is so obscure, and on the other hand it is likely that the very obscurity of these laws serves to deter perfectly legitimate expression and debate by persons who must be as unsure of their liabilities as I am unsure of their obligations.

In other words, the Espionage Act is at once too broad and not broad enough—and gives the government too much and too little discretion in cases in which individuals mishandle national security secrets, maliciously or otherwise.

To underscore this point, the provision that the government has used to go after those who shared classified information with individuals not entitled to receive it (including Petraeus, Drake, and Manning), codified at 18 U.S.C. § 793(d), makes it a crime if:

Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted … to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it …

This provision is stunningly broad, and it’s easy to see how, at least as a matter of statutory interpretation, it covers leaking—when government employees (“lawfully having possession” of classified information) share that information with “any person not entitled to receive it.” But note how this doesn’t easily apply to Clinton’s case, as her communications, however unsecured, were generally with staffers who were“entitled to receive” classified information.

Instead, the provision folks have pointed to in her case is the even more strangely worded § 793(f), which makes it a crime for:

Whoever, being entrusted with or having lawful possession or control of [any of the items mentioned in § 793(d)], (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed … fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer …

Obviously, it’s easy to equate Clinton’s “extreme carelessness” with the statute’s “gross negligence.” But look closer: Did Clinton’s carelessness, however extreme, “[permit] … [classified information] to be removed from its proper place of custody or delivered to anyone in violation of [her] trust”? What does that even mean in the context of intangible information discussed over email? The short answer is nobody knows: This provision has virtually never been used at least partly because no one is really sure what it prohibits. It certainly appears to be focused on government employees who dispossess the government of classified material (like a courier who leaves a satchel full of secret documents in a public place). But how much further does it go?

There’s an easy answer here, and it’s to not use Clinton as a test case for an unprecedented prosecution pursuant to an underutilized criminal provision, even if some of us think what she did was a greater sin than the conduct of some who have been charged under the statute. The better way forward is for Congress to do something it’s refused to do for more than 60 years: carefully and comprehensively modernize the Espionage Act, and clarify exactly when it is, and is not, a crime to mishandle classified national security secrets.

Sadly, if Congress were to legislate the Espionage Act now, they might codify the attacks on whistleblowers. But they should not. They should distinguish between selling information to our adversaries and making information public. They should also make it clear that intent matters — because in the key circuit, covering the CIA, the Pentagon, and many contractors, intent hasn’t mattered since the John Kiriakou case.

Eliminate the arbitrariness of the clearance system

But part of that should also involve eliminating the arbitrary nature of the classification system.

I’ve often pointed to how, in the Jeffrey Sterling case, the only evidence he would mishandle classified information was his retention of 30-year old instructions on how to dial a rotary phone, something far less dangerous than what Hillary did.

Equally outrageous, though, is that four of the witnesses who may have testified against Sterling, probably including Bob S who was the key witness, have also mishandled classified information in the past. Those people not only didn’t get prosecuted, but they were permitted to serve as witnesses against Sterling without their own indiscretions being submitted as evidence. As far as we know, none lost their security clearance. Similarly, David Petraeus hasn’t lost his security clearance. But Ashkan Soltani was denied one and therefore can’t work at the White House countering cyberattacks.

Look, the classification system is broken, both because information is over-classified and because maintaining the boundaries between classified and unclassified is too unwieldy. That broken system is then magnified as people’s access to high-paying jobs are subjected to arbitrary review of security clearances. That’s only getting worse as the Intelligence Community ratchets up the Insider Threat program (rather than, say, technical means) to forestall another Manning or Snowden.

The IC has made some progress in recent years in shrinking the universe of people who have security clearances, and the IC is even making moves toward fixing classification. But the clearance system needs to be more transparent to those within it and more just.

Limit the President’s arbitrary authority over classification

Finally, Congress should try to put bounds to the currently arbitrary and unlimited authority Presidents claim over classified information.

As a reminder, the Executive Branch routinely cites the Navy v. Egan precedent to claim unlimited authority over the classified system. They did so when someone (it’s still unclear whether it was Bush or Cheney) authorized Scooter Libby to leak classified information — probably including Valerie Plame’s identity — to Judy Miller. And they did so when telling Vaughn Walker could not require the government to give al Haramain’s lawyers clearance to review the illegal wiretap log they had already seen before handing it over to the court.

And these claims affect Congress’ ability to do their job. The White House used CIA as cover to withhold a great deal of documents implicating the Bush White House in authorizing torture. Then, the White House backed CIA’s efforts to hide unclassified information, like the already-published identities of its torture-approving lawyers, with the release of the Torture Report summary. In his very last congressional speech, Carl Levin complained that he was never able to declassify a document on the Iraq War claims that Mohammed Atta met with a top Iraqi intelligence official in Prague.

This issue will resurface when Hillary, who I presume will still win this election, nominates some of the people involved in this scandal to serve in her White House. While she can nominate implicated aides — Jake Sullivan, Huma Abedin, and Cheryl Mills — for White House positions that require no confirmation (which is what Obama did with John Brennan, who was at that point still tainted by his role in torture), as soon as she names Sullivan to be National Security Advisor, as expected, Congress will complain that he should not have clearance.

She can do so — George Bush did the equivalent (remember he appointed John Poindexter, whose prosecution in relation to the Iran-Contra scandal was overturned on a technicality, to run the Total Information Awareness program).

There’s a very good question whether she should be permitted to do so. Even ignoring the question of whether Sullivan would appropriately treat classified information, it sets a horrible example for clearance holders who would lose their clearances.

But as far as things stand, she could. And that’s a problem.

To be fair, legislating on this issue is dicey, precisely because it will set off a constitutional challenge. But it should happen, if only because the Executive’s claims about Navy v. Egan go beyond what SCOTUS actually said.

Mandate and fund improved communication system

Update, after I posted MK reminded me I meant to include this.

If Congress is serious about this, then they will mandate and fund State to fix their decades-long communications problems.

But they won’t do that. Even 4 years after the Benghazi attack they’ve done little to improve security at State facilities.

Update: One thing that came up in today’s Comey hearing is that the FBI does not routinely tape non-custodial interviews (and fudges even with custodial interviews, even though DOJ passed a policy requiring it). That’s one more thing Congress could legislate! They could pass a simple law requiring FBI to start taping interviews.

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

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

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