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The Story About Judicial Dysfunction Behind the Comey Whiplash

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I’ve been home from Europe for less than a day and already I’m thinking of sporting a neck collar for the whiplash I’ve gotten watching the wildly varying Jim Comey opinions.

I’m speaking, of course, of the response to Jim Comey’s highly unusual announcement to sixteen Chairs and Ranking Members of congressional committees (at least some of which Comey did not testify to) that the investigative team — presumably on the Clinton case — briefed him Thursday that FBI discovered additional emails in an unrelated case — now known to be the investigation into Anthony Weiner allegedly sexting a 15 year old — and he approved their request to take the steps necessary to be able to review those emails.

Effectively, the Weiner investigators, in reviewing the content from devices seized in that investigation, found emails from Huma Abedin, told the Hillary investigative team, and they’re now obtaining a warrant to be able to review those emails.

So of course the Republicans that had been claiming Comey had corruptly fixed the investigation for Hillary immediately started proclaiming his valor and Democrats that had been pointing confidently to his exoneration of Hillary immediately resumed their criticism of his highly unusual statements on this investigation. Make up your minds, people!

For the record, I think his initial, completely inappropriate statements made this inevitable. He excuses Friday’s statement as formally correcting the record of his testimony. The claim is undermined by the fact that not all recipients of the letter had him testify. But I think once you start the process of blabbing about investigations, more blabbing likely follows. I don’t mean to excuse this disclosure, but the real sin comes in the first one, which was totally inappropriate by any measure. I’m also very unsympathetic with the claim —  persistently offered by people who otherwise cheer Comey — that he released his initial statement to help Loretta Lynch out of the jam created by her inappropriate meeting with Bill Clinton; I think those explanations stem from a willful blindness about what a self-righteous moralist Comey is.

Of course I’ve been critical of Comey since long before it was cool (and our late great commenter Mary Perdue was critical years before that).

But I’d like to take a step back and talk about what this says about our judicial system.

Jim Comey doesn’t play by the rules

Jamie Gorelick (who worked with Comey when she was in DOJ) and Larry Thompson (who worked with Comey when Comey was US Attorney and he was Deputy Attorney General, until Comey replaced him) wrote a scathing piece attacking Comey for violating the long-standing prohibition on doing anything in an investigation pertaining to a political candidate in the 60 days leading up to an election. The op-ed insinuates that Comey is a “self-aggrandizing crusader[] on [a] high horse” before it goes on to slam him for making himself the judge on both the case and Hillary’s actions.

James B. Comey, put himself enthusiastically forward as the arbiter of not only whether to prosecute a criminal case — which is not the job of the FBI — but also best practices in the handling of email and other matters. Now, he has chosen personally to restrike the balance between transparency and fairness, departing from the department’s traditions. As former deputy attorney general George Terwilliger aptly put it, “There’s a difference between being independent and flying solo.”

But the real meat is that there’s a rule against statements like the one Comey made, and Comey broke it.

Decades ago, the department decided that in the 60-day period before an election, the balance should be struck against even returning indictments involving individuals running for office, as well as against the disclosure of any investigative steps. The reasoning was that, however important it might be for Justice to do its job, and however important it might be for the public to know what Justice knows, because such allegations could not be adjudicated, such actions or disclosures risked undermining the political process. A memorandum reflecting this choice has been issued every four years by multiple attorneys general for a very long time, including in 2016.

If Comey is willing to break this rule in such a high profile case, then what other rules is he breaking? What other judgements has Comey made himself arbiter of? Particularly given Comey’s persistent discussion of FBI’s work in terms of “good guys” and “bad guys” — as opposed to criminal behavior — that seems a really pertinent question.

As with James Clapper, Loretta Lynch can’t control Comey

Gorelick (who has been suggested among potential Clinton appointees) and Thompson go easier on Lynch, however, noting that she didn’t order him to stand down here, but ultimately blaming Comey for needing to be ordered.

Attorney General Loretta E. Lynch — nominally Comey’s boss — has apparently been satisfied with advising Comey but not ordering him to abide by the rules. She, no doubt, did not want to override the FBI director in such a highly political matter, but she should not have needed to. He should have abided by the policy on his own.

But since John Cornyn confronted Lynch in March about who would make decisions in this case — “Everyone in the Department of Justice works for me, including the FBI, sir,” Lynch forcefully reminded Cornyn — it has been clear that there’s a lot more tension than the org chart would suggest there should be.

The NYT provides more details on how much tension there is.

The day before the F.B.I. director, James B. Comey, sent a letter to Congress announcing that new evidence had been discovered that might be related to the completed Hillary Clinton email investigation, the Justice Department strongly discouraged the step and told him that he would be breaking with longstanding policy, three law enforcement officials said on Saturday.

Senior Justice Department officials did not move to stop him from sending the letter, officials said, but they did everything short of it, pointing to policies against talking about current criminal investigations or being seen as meddling in elections.

And it’s not just Lynch that has problems managing FBI.

In a response to a question from me in 2014 (after 56:00), Bob Litt explained that FBI’s dual role creates “a whole lot of complications” and went on to admit that the office of Director of National Intelligence — which is supposed to oversee the intelligence community — doesn’t oversee the FBI as directly.

Because FBI is part of the Department of Justice, I don’t have the same visibility into oversight there than I do with respect to the NSA, but the problems are much more complicated because of the dual functions of the FBI.

Litt said something similar to me in May when we discussed why FBI can continue to present bogus numbers in its legally mandated NSL reporting.

Now these are separate issues (though the Clinton investigation is, after all, a national security investigation into whether she or her aides mishandled classified information). But if neither the DNI nor the AG really has control over the FBI Director, it creates a real void of accountability that has repercussions for a whole lot of issues and, more importantly, people who don’t have the visibility or power of Hillary Clinton.

The FBI breaks the rules all the time by leaking like a sieve

Underlying this entire controversy is another rule that DOJ and FBI claim to abide by but don’t, at all: FBI is not supposed to reveal details of ongoing investigations.

Indeed, according to the NYT, Comey pointed to the certainty that this would leak to justify his Friday letter.

But although Mr. Comey told Congress this summer that the Clinton investigation was complete, he believed that if word of the new emails leaked out — and it was sure to leak out, he concluded — he risked being accused of misleading Congress and the public ahead of an election, colleagues said.

Yet the US Attorney’s Manual, starting with this language on prejudicial information and continuing into several more clauses, makes it clear that these kinds of leaks are impermissible.

At no time shall any component or personnel of the Department of Justice furnish any statement or information that he or she knows or reasonably should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding.

Comey, the boss of all the FBI Agents investigating this case, had another alternative, one he should have exercised months ago when it was clear those investigating this case were leaking promiscuously: demand that they shut up, conduct investigations of who was leaking, and discipline those who were doing so. Those leaks were already affecting election year concerns, but there has been little commentary about how they, too, break DOJ rules.

But instead of trying to get FBI Agents to follow DOJ guidelines, Comey instead decided to violate them himself.

Again, that’s absolutely toxic when discussing an investigation that might affect the presidential election, but FBI’s habitual blabbing is equally toxic for a bunch of less powerful people whose investigative details get leaked by the FBI all the time.

[Update: Jeffrey Toobin addresses the role of leaks more generally here, though he seems to forget that the Hillary investigation is technically a national security investigation. I think it’s important to remember that, especially given Hillary’s campaign focus on why FBI isn’t leaking about the investigation into Trump’s ties to Russia, which would also be a national security investigation.]

Warrantless back door searches do tremendous amounts of damage

Finally, think about the circumstances of the emails behind this latest disclosure.

Reports are currently unclear how much the FBI knows about these emails. The NYT describes that the FBI seized multiple devices in conjunction with the Weiner investigation, including the laptop on which they found these emails.

On Oct. 3, F.B.I. agents seized several electronic devices from Mr. Weiner: a laptop, his iPhone and an iPad that was in large measure used by his 4-year-old son to watch cartoons, a person with knowledge of the matter said. Days later, F.B.I. agents also confiscated a Wi-Fi router that could identify any other devices that had been used, the person said.

While searching the laptop, the agents discovered the existence of tens of thousands of emails, some of them sent between Ms. Abedin and other Clinton aides, according to senior law enforcement officials. It is not clear if Ms. Abedin downloaded the emails to the laptop or if they were automatically backed up there. The emails dated back years, the officials said. Ms. Abedin has testified that she did not routinely delete her emails.

Presumably, the warrant to seize those devices permits the FBI agents to go find any evidence of Weiner sexting women (or perhaps just the young woman in question).

And admittedly, the details NYT’s sources describe involve just metadata: addressing information and dates.

But then, Comey told Congress these emails were “pertinent” to the Clinton investigation, and other details in reports, such as they might be duplicates of emails already reviewed by the FBI, suggest the Weiner investigators may have seen enough to believe they might pertain to the inquiry into whether Clinton and her aides (including Huma) mishandled classified information. Moreover, the FBI at least thinks they will be able to prove there is probable cause to believe these emails may show the mishandling of classified information.

Similarly, there are conflicting stories about whether the Hillary investigation was ever closed, which may arise from the fact that if it were (as Comey had suggested in his first blabby statements), seeking these emails would require further approval to continue the investigation.

The point, though, is that FBI would have had no idea these emails existed were it not for FBI investigators who were aware of the other investigation alerting their colleagues to these emails. This has been an issue of intense litigation in recent years, and I’d love for Huma, after the election, to submit a serious legal challenge if any warrant is issued.

But then, in this case, Huma is being provided far more protection than people swept up in FISA searches, where any content with a target can be searched years into the future without any probable cause or even evidence of wrong-doing. Here, Huma’s emails won’t be accessible for investigative purpose without a warrant (in part because of recent prior litigation in the 2nd Circuit), whereas in the case of emails acquired via FISA, FBI can access the information — pulling it up not just by metadata but by content — with no warrant at all.

[Update: Orin Kerr shares my concerns on this point — with the added benefit that he discusses all the recent legal precedents that may prohibit accessing these emails.]

This is a good example of the cost of such investigations. Because the FBI can and does sweep so widely in searches of electronic communications, evidence from one set of data collection can be used to taint others unrelated to the crime under investigation.

All the people writing scathing emails about Comey’s behavior in this particular matter would like you to believe that this issue doesn’t reflect on larger issues at DOJ. They would like you to believe that DOJ was all pure and good and FBI was well-controlled except for this particular investigation. But that’s simply not the case, and some of these issues go well beyond Comey.

Update: Minor changes were made to this post after it was initially posted.

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Third Presidential Debate — Open Thread

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This is an open thread for the third presidential debate between major party candidates. It’s open to topics related to the debate topics and questions; let’s avoid other topics like sports or food, etc., unless they relate directly to the candidates.

Debate location: University of Nevada-Las Vegas, Las Vegas, Nevada

Time: 9:00 p.m. to 10:30 p.m. EDT (Nevada, however, is in MDT.)

Debate moderators: Chris Wallace, Fox News

Participants: Hillary Clinton and Donald Trump (Gary Johnson and Jill Stein did not qualify per Commission on Presidential Debates which organizes these events.)

The format for this debate is the same as the first presidential debate. A 15-minute segment will be dedicated to each of six questions posited by the moderator. Each candidate will have two minutes to respond to each question, with a short rebuttal allotted to each candidate. The moderator will use the balance of time to flesh out additional discussion on the topics.

It’s rumored Trump will try another ‘nuclear winter’ move by inviting guests whose presence may ruffle Clinton. His effort last debate — bringing women who accused Bill Clinton of sexual assault to a panel before and outside of the debate — didn’t appear as effective as he would like. Will he indulge in other threatening body language as he did during the second debate?

Other rumors suggest Clinton may invite members of the Central Park Five to rattle Trump, but this is probably unnecessary as 1) Trump has doubled down on his stupidity about the CP5’s guilt (they were exonerated by DNA evidence), and 2) he’s easy to rattle without any third parties’ assistance.

I don’t know about you but I think I need to stock up on tequila to get through this last gasp.

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In Latest Russian Plot, WikiLeaks Reveals Hillary Opposes ISDS

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Among the emails released as part of the Podesta leaks yesterday, WikiLeaks released this one showing that, almost a year before she was making the same argument in debates with Bernie Sanders, Hillary was opposed to Investor State Dispute Settlement that is part of the Trans Pacific Partnership. (h/t Matt Stoller) ISDS is the means by which corporations have used trade agreements to operate above the domestic laws of party countries (if you haven’t read this three part series from BuzzFeed to learn about the more exotic ways business are profiting off of ISDS).

The email also appears to echo her later public concern that she had changed her mind on TPP because of KORUS.

After our last talk with HRC, we revised our letter to oppose ISDS and include her caution about South Korea.

Sure, other Podesta emails show Hillary supporting a broad region of free trade (and labor) in the Americas. But this more recent email confirms that the views she expressed in debate were more than just an attempt to counter Bernie’s anti-trade platform.

Whether or not this is newsworthy enough to justify the WL dump, it is noteworthy in light of NYT’s rather bizarre article from some weeks back suggesting that WL always sides with Putin’s goals. As I noted, the article made a really strained effort to claim that WL exposed TPP materials because it served Putin’s interests. Now, here, WL is is releasing information that makes Hillary look better on precisely that issue.

That doesn’t advance the presumed narrative of helping Trump defeat Hillary!

Then, as I noted yesterday, in spite of all the huff and puff from Kurt Eichenwald, the release of a Sid Blumenthal email used by Trump is another case where the WL release, as released, doesn’t feed the presumed goals of Putin.

Which brings me to this Shane Harris piece, which describes four different NatSec sources revealing there’s still a good deal of debate about WL’s ties to Russia.

Military and intelligence officials are convinced that WikiLeaks is an ongoing threat to U.S. national security and privacy owing to its leaks of classified documents and emails. But its precise relationship with Russia has been a subject of internal debate. Some do see the group as being in cahoots with the Kremlin. But others find that WikiLeaks is acting mainly as the beneficiary of stolen documents, not unlike a journalistic organization.

There are some funny aspects to this story. Nothing in it considers the significant evidence that WL is (and has reason to be) affirmatively anti-Hillary, which means its interests may align with Russia, even if it doesn’t take orders from Russia.

It also suggests that if the spooks can prove some tie between WL and Russia, they can spy on it as an agent of foreign power.

But those facts don’t mean WikiLeaks isn’t acting at Russia’s behest. And that’s not a trivial matter. If the United States were to determine that WikiLeaks is an agent of a foreign power, as defined in U.S. law, it could allow intelligence and law enforcement agencies to spy on the group—as they do on the Russian government. The U.S. can also bring criminal charges against foreign agents.

WL has been intimately involved in two separate charges cases of leaking-as-espionage in the US, Chelsea Manning and Edward Snowden. The government has repeatedly told courts that it has National Security/Criminal investigations, plural, into WikiLeaks, and when pressed for details about how and whether the government is collecting on supporters and readers of WikiLeaks, the government has in part hidden those details under a b3 FOIA exemption, meaning a statute prevents disclosing it, while extraordinarily refusing to reveal what statute that is. We certainly know that FBI has used multiple informants to spy on WL and used a variety of collection methods against Jacob Appelbaum, including (according to Appelbaum) physical tails.

So there’s not only no doubt that the US government believes it can spy on WikiLeaks (which is, after all, headed by a foreigner and not a US organization), but that it already does, and has been doing for at least six years.

Perhaps Harris’ sources really mean they’ve never found a way to indict Julian Assange before, but if they can claim he’s working for Putin, then maybe they’ll overcome past problems of indicting him because it would criminalize journalism. If that’s the case, it may be shading analysis of WL, because the government would badly like a reason to shut down WL (as the comments about the direct threat to the US in the story back up).

As I’ve said before, the role of WL in this and prior leak events is a pretty complex one, one that if approached too rashly (or too sloppily) could have ramifications for other publishers. While a lot of people are rushing to collapse this (in spite of what sounds like a continuing absence of directly incriminating evidence) into a nation-state conflict, things like this TPP email suggest it’s not that simple.

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Second Presidential Debate — Open Thread

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This is an open thread for the second presidential debate between major party candidates. It’s open to topics related to the debate topics and questions; let’s avoid other topics like sports or food, etc., unless they relate directly to the candidates.

Debate location: Washington University, St. Louis, Missouri

Time: 9:00 p.m. to 10:30 p.m. EDT (Missouri, however, is in CDT.)

Debate moderators: Martha Raddatz, ABC News, and Anderson Cooper, CNN

Participants: Hillary Clinton and Donald Trump (Gary Johnson and Jill Stein did not qualify per Commission on Presidential Debates which organizes these events.)

The format for this debate is a town hall. I have no idea as I type this what questions will be put to the candidates.

Or I should say I can only imagine a couple questions the moderators may ask based on the release of a certain audiotape on Friday.

ADDER: Looks like Trump has gone nuclear winter on Clinton, having a panel in advance of the debate with Juanita Broaddrick, Paula Jones, Kathleen Willey.

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Hillary Clinton’s Three Devices

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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.

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The Misunderstandings of the Anti-Transparency Hillary-Exonerating Left

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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.

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CIA Director Entry Number 2: Mike Morell, Fabulist

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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.

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What Price Victory?

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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.

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On Responsible Sourcing for DNC Hack Stories

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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!

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

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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.

 

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