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Blind Spots in the Ashli Babbitt Panopticon

In a status hearing for Thomas Baranyi yesterday, AUSA Candice Wong explained why she hadn’t finished discovery for Baranyi, who stood right behind Ashli Babbitt when she was shot: because new discovery from “other investigations” keeps coming in. By “other investigations,” she likely means content recorded by other defendants when they were storming the Capitol.

For example, in the most recent (laudably detailed) discovery notice to Baranyi’s attorney, Wong included 17 files, six sets of which were designated by “D” — probably defendants — and three sets of which designated by “W” — probably uncharged witnesses.

MARKED SENSITIVE: Videos obtained via legal process and otherwise from other Capitol investigations (17 files):

a. D-2 – 3 photographs, 1 video

b. D-3 – 3 videos

c. D-4 – 1 video

d. D-5 – 1 video

e. D-6 – 1 video

f. D-7 – 1 video

g. W-4 – 2 videos

h. W-5 – 1 video

i. W-6 – 3 videos

In the hearing, Wong explained that incoming discovery might be important for either the defense or the government. It significantly consisted of activity that CCTV hadn’t captured. Wong also explained that as important as the video itself, new discovery has recorded the words of rioters that weren’t otherwise recorded.

Wong’s comments confirm something I’ve pointed out before. Even with the flood of video that captured the events of January 6, there are gaps in that coverage, gaps that the government has seemingly attempted to fill by targeting the arrests of those known to have taken their own video.

That there are gaps in the case against Baranyi, who was in one of the most important locations of the entire riot, suggests something else: that there may be limited CCTV coverage from that hallway. Certainly, Wong seems to be saying that prosecutors are relying, in part, on other defendants’ footage to understand what the key defendants were doing.

Here are all the discovery notices for Baranyi, with a description of the types of material provided:

  • February 24: Arrest materials and 302s, T-Mobile and WhatsApp subpoena returns, plus ten open-source videos.
  • April 19: Extracts of Baranyi’s phone, social media posts about Baranyi, two more open-source videos, plus 20 zipped USCP surveillance videos
  • June 1: MPD body cam footage
  • June 24: Bates-stamped discovery, probably significantly replicating earlier discovery
  • July 1: MPD footage from “Upper House Door exit,” CCTV from Crypt East, two officer interview transcripts, four open-source videos described as, “CSPAN; Storyful; two of shooting,” plus, the 17 files described above.

As noted below, Wong gave the four other defendants who were also at the door — Zach Alam, Chad Jones, Christopher Grider, and John Sullivan –a similar discovery notice in the last week or so. That suggests the MPD footage and the “D” and “W” videos cover that confrontation that is common to all five cases.

Some of the USCP video provided to those four defendants may be common. But Alam, the most boisterous of the lot, only received eight of them (and most of these defendants were all over the Capitol). For most of these defendants, then, the government seems to be relying on open-source video and, increasingly, on the video taken by other defendants.


Zach Alam (one, two, three, four): Eight files from USCP surveillance and ten open-source videos. Many of the same files disclosed to Baranyi.

Chad Jones (one, two, three, four, five): Ten open source, 22 USCP videos, MPD body cam, many of the same files as disclosed to Baranyi on July 1, as well as an extra YouTube of Jones outside.

Christopher Grider (one, two, three, four, five): 20 USCP videos, ten open-source videos, two of his own videos, many of the same filings disclosed to Baranyi.

Brian Bingham: No discovery docketed.

Alex Sheppard No discovery docketed.

Kurt Peterson: CCTV footage of the building exit and some BWC, as well as 17 open-source videos.

Ryan Bennett (one, two): only his own videos from Facebook and his phone.

Phillip Bromley: Unclear whether all discovery docketed, though a set of files marked Highly Sensitive (as CCTV would be), including four videos and two images, are included.

David Mish: Discovery mentions video clips but does not detail them.

Brian McCreary: No discovery docketed.

Sam Montoya: 20 USCP videos, 16 MPD BWC videos, nine open-source videos

John Sullivan (one, two, three): Sullivan’s own video, 24 USCP videos plus 2 screenshots, 17 MPD BWC videos.

The Rickety 702 System: Why It Continues to Fail

Back in 2009, I showed how a heavily redacted opinion rejecting what we now know to be a Yahoo challenge to the Protect America Act found that the predecessor to FISA 702 was constitutional because of the minimization procedures implementing certificates implementing the surveillance program. We learned seven years later that Yahoo hadn’t been provided those minimization procedures as part of their challenge, and indeed, DOJ withheld a key document from Reggie Walton, who presided over the challenge, until after he made key decisions in the case. That was also the first year the government finally presented details about the intended use of what had become 702 to FISC, most importantly that FBI was getting raw data they would encourage Agents to query, even at the assessment level. But even two years later, FISC was still just pushing FBI to follow rules imposed requiring them to track their queries of the raw 702 data. Two years later, after being presented with evidence that FBI still hasn’t complied with the law as currently written, outgoing presiding judge James Boasberg nevertheless reauthorized the program.

In general, Boasberg’s opinion reauthorizing 702 from last November describes violations pertaining to FBI access of 702 data for queries that have both a national security and criminal investigative function, FBI’s improper use of batch queries, and real problems with protections for attorney-client communications at NSA that could really blow up in the IC’s face one of these days, all problems FISC has been reviewing for years. The opinion also describes how training and COVID has delayed what will be an inevitable accounting for the fact that one key purpose of 702 when it was started — to select a fraction of all the intelligence NSA examines and put it into FBI coffers to make it available for querying — is a poor fit with the current law.

To understand one reason why this never gets better, I wanted to look at the structure of this and all other reauthorization opinions, because it never fixes some of the problems built in from the start.

The 702 opinions, like traditional FISA approvals, are all driven by the statute, ticking one after another required element off. If everything gets ticked, in order, then hundreds of thousands of people remain targeted for surveillance, along with all the people they communicate with.

Memorandum opinion and order

The opinion starts with introductory mapping. Even at that point, Boasberg describes this reauthorization as a “status-quo” reauthorization, meaning the request certificates from the government have remained largely the same and so don’t present any new issues to reconsider.

I. Government’s Submission

A. 2020 Certifications and Amendments: The opinion starts by laying out what gets included in the package, which basically includes the certificates, along with the targeting (NSA and FBI), querying (NSA, FBI, CIA, and NCTC), and minimization (NSA, FBI, CIA, and NCTC) procedures that implement the certificates.

B. Subject Matter of the Certification: This section describes, in heavily redacted fashion, what the certificates do and the rules and intent for all of them. Last we knew, there were three certifications: one targeting terrorists, one targeting proliferation, and one targeting “foreign governments,” focusing not just on other country’s spying, but also (to the extent it is a separate entity) their hacking. This section also notes, importantly, that these certificates renew prior authorizations; every year, FISC approves the new rules to apply to any new collections but also all the stuff already in the government’s possession. This is important, because analysts will continue to query (governed by one set of procedures) and report out (governed by minimization procedures) communications obtained in year’s past. Thus, every new approval covers all the stuff that came before (which also means the judges largely rely on their earlier decisions).

II. Review of the 2020 Certifications and Prior Certifications

One of the first things FISC does in these opinions is review the changes from past certifications, usually coming to the conclusion that, “we’ve approved these certifications going back 12 years, so we’ll just approve them again.” And some of this, as Boasberg admits in this opinion, is a matter of “check[ing]” procedural boxes — do the applications have the things required of them.

III. Targeting Procedures

Then each set of procedures is approved in isolation. First, the judge reviews whether targeting procedures fulfill the requirement that targeting procedures are “reasonably designed” to ensure that targets are outside the US and the procedures do not intentionally target communications entirely made up of US persons. For years, this has focused on making sure that if NSA or FBI get it wrong and target someone who’s in the US or is a US person, they detask the target quickly.

IV. Minimization and Querying Procedures

Then, the judge reviews whether the minimization procedures limit the dissemination of non-public US person data, allowing for its use for a foreign intelligence purpose and the sharing of evidence of a crime. Most opinions come with some language like this (from last year’s opinion) rationalizing — even though NSA and FBI have always refused to provide the data to test this assumption — that this content will be less impactful than traditional FISA collection.

In applying these statutory requirements, the Court is mindful that Section 702 acquisitions target persons reasonably believed to be non-U.S. persons outside the United States. Although such targets may communicate with or about U.S. persons, Section 702 acquisitions, as a general matter, are less likely to acquire information about U.S. persons that is unrelated to the foreign-intelligence purpose of the acquisition than, for example, electronic surveillance or physical search of a home or workplace within the United States that a target shares with U.S. persons.

Remember, unlike traditional FISA, there’s no individualized review of the foreign intelligence claims of these targets. So yeah, someone in Iran may have less contact with Americans, but the claims about that person require a far lower burden of foreign intelligence interest.

In last year’s opinion, Boasberg noted that the minimization (limits on dissemination) and querying (limits on searching the files) work together and analyzed them together. Nevertheless, with some more box-checking (for example, on whether each agency requires a record of queries made), Boasberg then concludes that since not much has changed, he can approve both the minimization and querying procedures.

Nothing detracts from the Court’s earlier findings [in past years] that these procedures as written are statutorily and constitutionally sufficient.

Remember: the FBI queries are the area where 702 has been particularly controversial of late, but the analysis of their application does not come here, in the section that approves them.

There is a discussion of attorney-client communications in here, particularly with regards to NSA’s use of attorney-client communications. But even after observing that,

The government does little by way of justifying the differing treatment of privileged communications by NSA,

Boasberg nevertheless relies on past approval for this same application to approve last year’s certificates.

[T]he Court has previously approved the dissemination provisions in the NSA procedures highlighted above, which unambiguously contemplate the dissemination of attorney-client privileged communications of the types being discussed here [redacted] subject to certain limitations and requirements.

[snip]

The Court again concludes that NSA’s procedures, as a whole and applied to it, an agency with no law-enforcement mission or authority, are reasonably designed to protect the substantial privacy interests in attorney-client communications, consistent with the need to exploit those communications for legitimate foreign-intelligence purposes.

Boasberg does “admonish[]” NSA to make sure none of this dissemination ends up in an FBI report. But having expressed concerns about how NSA exploits attorney-client communications, he nevertheless approves its use for foreign intelligence purposes.

V. Fourth Amendment Requirements

Then, in totally separate analysis, Boasberg (like judges before him) assesses whether all those procedures he just reviewed “are consistent with the Fourth Amendment.” This review, like all the ones since 2008, has relied on procedures to find that the program as a whole complies with the Fourth Amendment.

It does so by finding that the Targeting Procedures limit the collection to people not protected by the Fourth Amendment, and the interests of those swept up in that collection can be protected with Minimization and Querying Procedures.

For reasons explained above, the Court has found that the proposed targeting procedures, as written, are reasonably designed to limit acquisitions to those targets reasonably believed to be non-Untied States persons located outside the United States. The Fourth Amendment does not protect the privacy interests of such individuals. [citation omitted]

To the extent U.S.-person information is acquired under Section 702 — e.g., when a communication between a U.S. person and a Section 702 target is intercepted — the government can reduce the intrusiveness of the acquisition for Fourth Amendment purposes by restricting use or disclosure of such information.

After language about the import of national security interests, Boasberg then concludes that, “those procedures, as written, are consistent with the requirements of the Fourth Amendment.”

VI. Implementation and Compliance Issues

It’s only after ruling everything meets the legal requirements — all the boxes are checked — that Boasberg (and this opinion is in no way unique on the structure — turns to a list of compliance issues. Yes, this analysis feigns to be part of reviewing “how [the procedures] are implemented.” But Boasberg has already found the procedures, in the abstract, sufficient to comply with the Fourth Amendment.

As part of his analysis, Boasberg offers the following excuses for the FBI:

  • It took time for them to make the changes in their systems
  • It took time to train everyone
  • Once everyone got trained they all got sent home for COVID
  • Given mandatory training, personnel “should be aware” of the requirements, even if actual practice demonstrates they’re not
  • FBI doesn’t do that many field reviews
  • Evidence of violations is not sufficient evidence to find that the program inadequately protects privacy
  • The opt-out system for FISA material — which is very similar to one governing the phone and Internet dragnet at NSA until 2011 that also failed to do its job — failed to do its job
  • The FBI has always provided national security justifications for a series of violations involving their tracking system where an Agent didn’t originally claim one
  • Bulk queries have operated like that since November 2019
  • He’s concerned but will require more reporting

At the end of this section, Boasberg issued a 5-bullet conclusion that the certifications check all the boxes, the 2020 certifications comply with FISA and the Fourth Amendment, the minimization procedures (incorporating therein the querying procedures) mean access to prior collections complies with FISA and the Fourth Amendment, and one querying procedure is approved for the 2020 collection.

By conducting first an abstract analysis and only then an analysis of what that has meant in past practice, and where real concerns remain to require ongoing reporting, Boasberg “gets to yes” (as Brennan’s Liza Goitein aptly wrote). Boasberg repeatedly said he didn’t have evidence to assess whether this really works to meet the requirements, but nevertheless signed the reauthorization.

Reporting requirements

Boasberg doesn’t provide a heading for his reporting requirements. But as part of his order approving the certifications, he lays out all the reports that he and past judges have required to make up for the fact that there’s no evidence these protections work. There are 11 old ones and two new ones.

Two years ago, as part of the most rigorous amicus intervention known to date, the amici recommended that Boasberg consider the querying at the heart of the FBI’s use of 702 as its own Fourth Amendment consideration. Even though Boasberg refused, FBI still threw a fit and appealed his demand that they comply with the law as written. And this opinion, as noted, still lumps the abstract analysis of compliance of minimization procedures and querying in together.

Yet the document itself, by separating the box-checking from the concepts the box-checking is supposed to fulfill, and separating both of those from the program as implemented, and even still authorizing a program while deferring the obvious proof of compliance by simply asking for 13 different reports, often of non-compliance, doesn’t actually do what it is supposed to do.

Unless what it is supposed to do is give the patina of legal review while instead turning judges into a bureaucratic functionary who can, once a year, offer some compliance suggestions that may not be implemented.

FISC Suspects John Ratcliffe of Relaxing Rules for Unmasking of FISA Material

I Con the Record released last year’s FISA 702 reauthorization the other day. A number of people have written pieces about it. I think my piece, predicting what would happen with this one, written in September 2020, sums it up nicely. I say that because, as presiding Judge James Boasberg notes in his opinion, the certification process was largely a “status-quo replacement of certifications and procedures approved by the court [on] December 6, 2019.”

With regards to the pressing issue reported on by others (which I will return to) — whether FISC will ever fully account for the problems with the way FBI does back door searches, on FISA 702 material, traditional FISA material, and otherwise — because of the way certifications happen, the court is still working through stuff that happened over a year ago.

But a more interesting aspect of the filing deals with one of the more substantive changes in the “status-quo” reauthorization. Because of changes at the National Counterterrorism Center made under Ric Grenell and John Ratcliffe, ODNI had to change the title in the minimization procedures governing NCTC’s access to raw 702 data. When NCTC wants to override requirements that data get purged after five years, one of two fairly senior people needs to sign off on it. Before, those people were the Deputy Director for Intelligence and the Deputy Director for Terrorist Identities; now they are the Assistant Director for Intelligence and the Assistant Director for Identity Intelligence. Boasberg found that change was no big deal.

Boasberg was more troubled by a change arising from the same reorganization that assigns authority to disseminate unmasked information on US persons. Before, that approval had to come from the NCTC Director “or a designee who shall hold a position no lower than Group Chief within the NCTC Directorate of Intelligence.” Now, a “Group Chief” within the Directorate of Identity Intelligence can be delegated that authority. As Boasberg interprets it, this might allow NCTC to expand the universe of people who can authorize the dissemination of unmasked US person data.

This proposed change gives the Court pause. That the change is purportedly necessitated by the transfer of one analytic group to another directorate does not mean that the practical effect of the proposed change would be limited to that group. Presumably there are other groups within the Directorate of Identity Intelligence, and, on its face, this change would allow the NCTC Director to delegate dissemination determinations to chiefs of those other groups, as well as to other, more senior officials within the Directorate of Identity Intelligence, none of whom currently can be delegated such authority.

Mind you, Boasberg approved the change anyway.

To be sure, the Court does not second-guess internal organizational decisions made by the Executive. The Court, moreover, has no objection in principle to the maintenance of the status quo vis-à-vis the group, previously within the Directorate of Intelligence, and now within the Directorate of Identity Intelligence, that is “responsible for identifying and locating members of terrorist networks.” Id. But the Court has not been provided enough information about other groups within the Directorate of Identity Intelligence to know whether the extension of delegated authority to chiefs of those other groups to authorize [redacted] disseminations is equally appropriate. The Court will approve the proposed change, but require the government to report in the future on the exercise of the delegation authority to any group chief or official within the Directorate of Identity Intelligence other than the one specifically discussed in the government’s submission.

This is how FISA problems get so bad (as the FBI back door searches did) such that it takes years before FISC learns and catalogs current problems: it requires reporting, not imposes prohibitions, and as a result only learns if there are problems months or years after the fact.

Probably, this change did not result in a relaxation of the rules regarding who could unmask US person identities. Probably, the changes imposed under Grenell and Ratcliffe were just an attempt to root out people they deemed to be disloyal to Donald Trump. Probably, this has resulted in the same fairly strict rules regarding the unmasking of US person identities that were in place before.

But it’s fairly ironic that Boasberg suspected that a change made in a certification signed by John Ratcliffe would make it easier for the government to unmask the identities of Americans who had been captured in FISA surveillance — because that’s the kind of thing the GOP led a years-long campaign accusing others of.

Former Presiding FISA Judge John Bates’ Curious Treatment of White Person Terrorism

By chance of logistics, the men and women who have presided over a two decade war on Islamic terrorism are now presiding over the trials of those charged in January 6.

To deal with the flood of defendants, the Senior Judges in the DC District have agreed to pick up some cases. And because FISA mandates that at least three of the eleven FISA judges presiding at any given time come from the DC area, and because the presiding judge has traditionally been from among those three, it means a disproportionate number of DC’s Senior Judges have served on the FISA Court, often on terms as presiding judge or at the very least ruling over programmatic decisions that have subjected millions of Americans to collection in the name of the war on terror. Between those and several other still-active DC judges, over 60 January 6 cases will be adjudicated by a current or former FISA judge.

Current and former FISA judges have taken a range of cases with a range of complexity and notoriety:

  • Royce Lamberth served as FISC’s presiding judge from 1995 until 2002 and failed in his effort to limit the effect of the elimination of the wall between intelligence and criminal collection passed in the PATRIOT Act. And during a stint as DC’s Chief Judge he dealt with the aftermath of the Boumediene decision and fought to make the hard won detention reviews won by Gitmo detainees more than a rubber stamp. Lamberth is presiding over 10 cases with 14 defendants. A number of those are high profile cases, like that of Jacob Chansley (the Q Shaman), Zip Tie Guy Eric Munchel and his mother, bullhorn lady and mask refusenik Rachel Powell, and Proud Boy assault defendant Christopher Worrell.
  • Colleen Kollar-Kotelly is still an active DC District judge, but she served as FISC presiding judge starting way back in 2002, inheriting the difficulties created by Stellar Wind from Lamberth. She’s the one who redefined “relevant to” in an effort to bring the Internet dragnet back under court review. She is presiding over ten January 6 cases with 12 defendants. That includes Lonnie Coffman, who showed up to the insurrection with a truck full of Molotov cocktails, as well as some other assault cases.
  • John Bates took over as presiding judge of FISC on May 19, 2009. In 2010, he redefined “metadata” so as to permit the government to continue to use the Internet dragnet; the government ultimately failed to make that program work but FISC has retained that twisted definition of “metadata” nevertheless. In 2011, he authorized the use of “back door searches” on content collected under FISA’s Section 702. In 2013, Bates appears to have ruled that for Islamic terrorists, the FBI can get around restrictions prohibiting surveillance solely for First Amendment reasons by pointing to the conduct of an American citizen suspect’s associates, rather than his or her own. And while not a FISA case, Bates also dismissed Anwar al-Awlaki’s effort to require the government to give him some due process before executing him by drone strike; at the time, the government had presented no public evidence that Awlaki had done more than incite violence. Bates has eight January 6 cases with nine defendants (as well as some unrelated cases), but he is presiding over several high profile ones, including the other Zip Tie Guy, Larry Brock, the scion of a right wing activist family, Leo Bozell IV, and former State Department official Freddie Klein.
  • Reggie Walton, who took over as presiding judge in 2013 but who, even before that, oversaw key programmatic decisions starting in 2008, showed a willingness both on FISC and overseeing the Scooter Libby trial to stand up to the Executive. That includes his extended effort to clean up the phone and Internet dragnet after Bush left in 2009, during which he even shut down part or all of the two dragnets temporarily. Walton is presiding over six cases with eight defendants, most for MAGA tourism.
  • Thomas Hogan was DC District’s head judge in the 2000s. In that role, he presided over the initial Gitmo detainees’ challenges to their detention (though many of the key precedential decisions on those cases were made by other judges who have since retired). Hogan then joined FISC and ultimately took over the presiding role in 2014 and in that role, affirmatively authorized the use of Section 702 back door searches for FBI assessments. Hogan is presiding over 13 cases with 18 defendants, a number of cases involving multiple defendants (including another set of mother-son defendants, the Sandovals). The most important is the case against alleged Brian Sicknick assailants, Julian Khater and George Tanios.
  • James Boasberg, who took over the presiding position on FISC on January 1, 2020 but had started making initial efforts to rein in back door searches even before that, is presiding over about eight cases with ten defendants, the most interesting of which is the case of Aaron Mostofsky, who is himself the son of a judge.
  • Rudolph Contreras, who like Kollar-Kotelly and Boasberg is not a senior judge, is currently a FISC judge. He has six January 6 cases with seven defendants, most MAGA tourists accused of trespassing. There’s a decent chance he’ll take over as presiding judge when Boasberg’s term on FISC expires next month.

Of the most important FISA judges since 9/11, then, just Rosemary Collyer is not presiding over any January 6 cases.

Mind you, it’s not a bad thing that FISA judges will preside over January 6 cases. These are highly experienced judges with a long established history of presiding over other cases, ranging the gamut and including other politically charged high profile cases, as DC District judges do.

That said, in their role as FISA judges — particularly when reviewing programmatic applications — most of these judges have been placed in a fairly unique role on two fronts. First, most of these judges have been forced to weigh fairly dramatic legal questions, in secret, in a context in which the Executive Branch routinely threatens to move entire programs under EO 12333, thereby shielding those programs from any oversight by a judge. These judges responded to such situations with a range of deference, with Royce Lamberth and Reggie Walton raising real stinks and — the latter case — hand-holding on oversight over the course of most of a year, to John Bates and to a lesser degree Thomas Hogan, who often complained at length about abuses before expanding the same programs being abused. Several — perhaps most notably Kollar-Kotelly when she was asked to bring parts of Stellar Wind under FISA — have likewise had to fight to affirm the authority of the entire Article III branch, all in secret.

Ruling on these programmatic FISA applications also involved hearing expansive government claims about the threat of terrorism, the difficulty and necessity of identifying potential terrorists before they attack, and the efficacy of the secret programs devised to do that (the judges who also presided over Gitmo challenges, which includes several on this list, also fielded similar secret claims about the risk of terrorism). Some of those claims — most notably, about the efficacy of the Section 215 phone dragnet — were wildly overblown. In other words, to a degree unmatched by most other judges, these men and women were asked to balance the rights of Americans against secret government claims about the risks of terrorism.

Now these same judges are part of a group being asked to weigh similar questions, but about a huge number of predominantly white, sometimes extremist Christian, defendants, but to do so in public, with defense attorneys challenging their every decision. Here, the balance between extremist affiliation and First Amendment rights will play out in public, but against the background of a two decade war on terror where similar affiliation was criminalized, often in secret.

Generally, the District judges in these cases have not done much on the cases yet, as either Magistrates (on initial pre-indictment appearances) or Chief Judge Beryl Howell (on initial detention disputes) have handled some of the more controversial issues, and in a few cases, Ketanji Brown Jackson presided over arraignments before she started handing off cases in anticipation of her Circuit confirmation process.

But several of the judges have written key opinions on detention, opinions that embody how differently the conduct of January 6 defendants looks to different people.

Lamberth, for example, authored the original detention order for “Zip Tie Guy” Eric Munchel and his mom, Lisa Eisenhart. Even while admitting that Munchel made efforts to limit any vandalization during the riot, Lamberth nevertheless deemed Munchel’s actions a threat to our constitutional government.

The grand jury charged Munchel with grave offenses. In charging Munchel with “forcibly enter[ing] and remain[ing] in the Capitol to stop, delay, and hinder Congress’s certification of the Electoral College vote,” Indictment 1, ECF No. 21, the grand jury alleged that Munchel used force to subvert a democratic election and arrest the peaceful transfer of power. Such conduct threatens the republic itself. See George Washington, Farewell Address (Sept. 19, 1796) (“The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government. All obstructions to the execution of the laws, all combinations and associations, under whatever plausible character, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle, and of fatal tendency.”). Indeed, few offenses are more threatening to our way of life.

Munchel ‘s alleged conduct demonstrates a flagrant disregard for the rule of law. Munchel is alleged to have taken part in a mob, which displaced the elected legislature in an effort to subvert our constitutional government and the will of more than 81 million voters. Munchel’ s alleged conduct indicates that he is willing to use force to promote his political ends. Such conduct poses a clear risk to the community.

Defense counsel’s portrayal of the alleged offenses as mere trespassing or civil disobedience is both unpersuasive and detached from reality. First, Munchel’s alleged conduct carried great potential for violence. Munchel went into the Capitol armed with a taser. He carried plastic handcuffs. He threatened to “break” anyone who vandalized the Capitol.3 These were not peaceful acts. Second, Munchel ‘s alleged conduct occurred while Congress was finalizing the results of a Presidential election. Storming the Capitol to disrupt the counting of electoral votes is not the akin to a peaceful sit-in.

For those reasons, the nature and circumstances of the charged offenses strongly support a finding that no conditions of release would protect the community.

[snip]

Munchel gleefully entered the Capitol in the midst of a riot. He did so, the grand jury alleges, to stop or delay the peaceful transfer of power. And he did so carrying a dangerous weapon. Munchel took these actions in front of hundreds of police officers, indicating that he cannot be deterred easily.

Moreover, after the riots, Munchel indicated that he was willing to undertake such actions again. He compared himself-and the other insurrectionists-to the revolutionaries of 1776, indicating that he believes that violent revolt is appropriate. See Pullman, supra. And he said “[t]he point of getting inside the building is to show them that we can, and we will.” Id. That statement, particularly its final clause, connotes a willingness to engage in such behavior again.

By word and deed, Munchel has supported the violent overthrow of the United States government. He poses a clear danger to our republic.

This is the opinion that the DC Circuit remanded, finding that Lamberth had not sufficiently considered whether Munchel and his mother would pose a grave future threat absent the specific circumstances present on January 6. They contrasted the mother and son with those who engaged in violence or planned in advance.

[W]e conclude that the District Court did not demonstrate that it adequately considered, in light of all the record evidence, whether Munchel and Eisenhart present an identified and articulable threat to the community. Accordingly, we remand for further factfinding. Cf. Nwokoro, 651 F.3d at 111–12.

[snip]

Here, the District Court did not adequately demonstrate that it considered whether Munchel and Eisenhart posed an articulable threat to the community in view of their conduct on January 6, and the particular circumstances of January 6. The District Court based its dangerousness determination on a finding that “Munchel’s alleged conduct indicates that he is willing to use force to promote his political ends,” and that “[s]uch conduct poses a clear risk to the community.” Munchel, 2021 WL 620236, at *6. In making this determination, however, the Court did not explain how it reached that conclusion notwithstanding the countervailing finding that “the record contains no evidence indicating that, while inside the Capitol, Munchel or Eisenhart vandalized any property or physically harmed any person,” id. at *3, and the absence of any record evidence that either Munchel or Eisenhart committed any violence on January 6. That Munchel and Eisenhart assaulted no one on January 6; that they did not enter the Capitol by force; and that they vandalized no property are all factors that weigh against a finding that either pose a threat of “using force to promote [their] political ends,” and that the District Court should consider on remand. If, in light of the lack of evidence that Munchel or Eisenhart committed violence on January 6, the District Court finds that they do not in fact pose a threat of committing violence in the future, the District Court should consider this finding in making its dangerousness determination. In our view, those who actually assaulted police officers and broke through windows, doors, and barricades, and those who aided, conspired with, planned, or coordinated such actions, are in a different category of dangerousness than those who cheered on the violence or entered the Capitol after others cleared the way. See Simpkins, 826 F.2d at 96 (“[W]here the future misconduct that is anticipated concerns violent criminal activity, no issue arises concerning the outer limits of the meaning of ‘danger to the community,’ an issue that would otherwise require a legal interpretation of the applicable standard.” (internal quotation and alteration omitted)). And while the District Court stated that it was not satisfied that either appellant would comply with release conditions, that finding, as noted above, does not obviate a proper dangerousness determination to justify detention.

The District Court also failed to demonstrate that it considered the specific circumstances that made it possible, on January 6, for Munchel and Eisenhart to threaten the peaceful transfer of power. The appellants had a unique opportunity to obstruct democracy on January 6 because of the electoral college vote tally taking place that day, and the concurrently scheduled rallies and protests. Thus, Munchel and Eisenhart were able to attempt to obstruct the electoral college vote by entering the Capitol together with a large group of people who had gathered at the Capitol in protest that day. Because Munchel and Eisenhart did not vandalize any property or commit violence, the presence of the group was critical to their ability to obstruct the vote and to cause danger to the community. Without it, Munchel and Eisenhart—two individuals who did not engage in any violence and who were not involved in planning or coordinating the activities— seemingly would have posed little threat. The District Court found that appellants were a danger to “act against Congress” in the future, but there was no explanation of how the appellants would be capable of doing so now that the specific circumstances of January 6 have passed. This, too, is a factor that the District Court should consider on remand. [my emphasis]

The DC Circuit opinion (joined by Judith Rogers, who ruled for Gitmo detainees in Bahlul and a Boumediene dissent) was absolutely a fair decision. But it is also arguably inconsistent with the way that the federal government treated Islamic terrorism, in which every time the government identified someone who might engage in terrorism (often using one of the secret programs approved by this handful of FISA judges, and often based off far less than waltzing into the Senate hoping to prevent the certification of an election while wielding zip ties and a taser), the FBI would continue to pursue those people as intolerably dangerous threats. Again, that’s not the way it’s supposed to work, but that is how it did work, in significant part with the approval of FISA judges.

That is, with Islamic terrorism, the government treated potential threats as threats, whereas here CADC required Lamberth to look more closely at what could make an individual predisposed to an assault on our government — a potential threat — as dangerous going forward. Again, particularly given the numbers involved, that’s a better application of due process than what has been used for the last twenty years, but it’s not what happened during the War on Terror (and in weeks ahead, this will be relitigated with consideration of whether Trump’s continued incitement makes these defendants an ongoing threat).

Now compare Lamberth’s order to an order John Bates issued in the wake of and specifically citing the CADC ruling, releasing former State Department official Freddie Klein from pretrial detention. Klein is accused of fighting with cops in the Lower West Terrace over the course of half an hour.

Bates found that Klein, in using a stolen riot shield to push against cops in an attempt to breach the Capitol, was eligible for pre-trial detention, though he expressed skepticism of the government’s argument that Klein had wielded the shield as a dangerous weapon).

The Court finds that Klein is eligible for pretrial detention based on Count 3. Under the BRA, a “crime of violence” includes “an offense that has as an element of the offense the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 3156(a)(4)(A). The Supreme Court in Johnson v. United States defined “physical force” as “force capable of causing physical pain or injury to another person.” 559 U.S. 133, 140 (2010); see also Def.’s Br. at 9.

[snip]

6 The Court has some doubts about whether Klein “used” the stolen riot shield as a dangerous weapon. The BRA does not define the term, but at least for purposes of § 111(b), courts have held that a dangerous weapon is any “object that is either inherently dangerous or is used in a way that is likely to endanger life or inflict great bodily harm.” See United States v. Chansley, 2021 WL 861079, at *7 (D.D.C. Mar. 8, 2021) (Lamberth, J.) (collecting cases). A plastic riot shield is not an “inherently dangerous” weapon, and therefore the question is whether Klein used it in a way “that is likely to endanger life or inflict great bodily harm.” The standard riot shield “is approximately forty-eight inches tall and twenty-four inches wide,” see Gov’t’s Br. at 13, and the Court disagrees with defense counsel’s suggestion that a riot shield might never qualify as a dangerous weapon, even if swung at an officer’s head, Hr’g Tr. 18:18–25, 19:1–11. See, e.g., United States v. Johnson, 324 F.2d 264, 266 (4th Cir. 1963) (finding that metal and plastic chair qualified as a dangerous weapon when “wielded from an upright (overhead) position and brought down upon the victim’s head”). But it is a close call whether Klein’s efforts to press the shield against officers’ bodies and shields were “likely to endanger life or inflict great bodily harm.” See Chansley, 2021 WL 861079, at *7.

But Bates ruled that there were certain things about the case against Klein — that he didn’t come prepared for combat, that he didn’t bring a weapon with him and instead just made use of what he found there, that any coordination he did involved ad hoc cooperation with other rioters rather than leadership throughout the event — that distinguished him from other defendants who (he suggested) should be detained, thereby limiting the guidelines laid out by CDC.

Bates’ decision on those points is absolutely fair. He has distinguished Klein from other January 6 defendants who, he judges, contributed more to the violence.

But there are two aspects of Bates’ decision I find shocking, especially from the guy who consistently deferred to Executive Authority on matters of national security and who sacrificed all of our communicative privacy in the service of finding hidden terrorist threats to the country. First, Bates dismissed the import of Klein’s sustained fight against cops because — he judged — Klein was only using force to advance the position of the mob, not trying to injure anyone.

The government’s contention that Klein engaged in “what can only be described as hand-to-hand combat” for “approximately thirty minutes” also overstates what occurred. See Gov’t’s Br. at 6. Klein consistently positioned himself face-to-face with multiple officers and also repeatedly pressed a stolen riot shield against their bodies and shields. His objective, as far as the Court can tell, however, appeared to be to advance, or at times maintain, the mob’s position in the tunnel, and not to inflict injury. He is not charged with injuring anyone and, unlike with other defendants, the government does not submit that Klein intended to injure officers. Compare Hr’g Tr. 57:12–18 (government conceding that the evidence does not establish Klein intended to injure anyone, only that “there was a disregard of care whether he would injure anyone or not” in his attempt to enter the Capitol), with Gov’t’s Opp’n to Def.’s Mot. to Reopen Detention Hearing & For Release on Conditions, ECF No. 30 (“Gov’t’s Opp’n to McCaughey’s Release”), United States v. McCaughey, III, 21-CR-040-1, at 11 (D.D.C. Apr. 7, 2021) (government emphasizing defendant’s “intent to injure” an officer who he had pinned against a door using a stolen riot shield as grounds for pretrial detention). And during the time period before Klein obtained the riot shield, he made no attempts to “battle” or “fight” the officers with his bare hands or other objects, such as the flagpole he retrieved. That does not mean that Klein could not have caused serious injury— particularly given the chaotic and cramped atmosphere inside the tunnel. But his actions are distinguishable from other detained defendants charged under § 111(b) who clearly sought to incapacitate and injure members of law enforcement by striking them with fists, batons, baseball bats, poles, or other dangerous weapons.

[snip]

Klein’s conduct was forceful, relentless, and defiant, but his confrontations with law enforcement were considerably less violent than many others that day, and the record does not establish that he intended to injure others. [my emphasis]

Bates describes that Klein wanted to use force in the service of occupying the building, not harming individual cops.

Of course, using force to occupy a building in service of halting the vote count is terrorism, but Bates doesn’t treat it as such.

Even more alarmingly, Bates flips how Magistrate Zia Faruqui viewed a government employee like Klein turning on his own government. The government had argued — and Faruqui agreed — that when a federal employee with Top Secret clearance attacks his own government, it is not just a crime but a violation of the Constitutional oath he swore to protect the country against enemies foreign and domestic.

Bates — after simply dismissing the import of Klein’s admittedly limited criminal history that under any other Administration might have disqualified him from retaining clearance — describes what Klein did as a “deeply concerning breach of trust.”

The government also argues that “Klein abdicated his responsibilities to the country and the Constitution” on January 6 by violating his oath of office as a federal employee to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” Id. at 24–25 (quoting 5 U.S.C. § 3331). The fact that, as a federal employee, Klein actively participated in an assault on our democracy to thwart the peaceful transfer of power constitutes a substantial and deeply concerning breach of trust. More so, too, because he had been entrusted by this country to handle “top secret” classified information to protect the United States’ most sensitive interests. In light of his background, Klein had, as Magistrate Judge Faruqui put it, every “reason to know the acts he committed” on January 6 “were wrong,” and yet he took them anyway. Order of Detention Pending Trial at 4. Klein’s position as a federal employee thus may render him highly culpable for his conduct on January 6. But it is less clear that his now-former employment at the State Department heightens his “prospective” threat to the community. See Munchel, 2021 WL 1149196, at *4. Klein no longer works for or is affiliated with the federal government, and there is no suggestion that he might misuse previously obtained classified information to the detriment of the United States. Nor, importantly, is he alleged to have any contacts—past or present—with individuals who might wish to take action against this country. [my emphasis]

Bates then argues that Klein’s ability to obtain clearance proves not that he violates oaths he takes (the government argument adopted by Faruqui), but that he has the potential to live a law-abiding life.

Ultimately, Klein’s history—including his ability to obtain a top-level security clearance—shows his potential to live a law-abiding life. His actions on January 6, of course, stand in direct conflict with that narrative. Klein has not—unlike some other defendants who have been released pending trial for conduct in connection with the events of January 6—exhibited remorse for his actions. See, e.g., United States v. Cua, 2021 WL 918255, at *7–8 (D.D.C. Mar. 10, 2021) (Moss, J.) (weighing defendant’s deep remorse and regret in favor of pretrial release). But nor has he made any public statements celebrating his misconduct or suggesting that he would participate in similar actions again. And it is Klein’s constitutional right to challenge the allegations against him and hold the government to its burden of proof without incriminating himself at this stage of the proceedings. See United States v. Lawrence, 662 F.3d 551, 562 (D.C. Cir. 2011) (“[A] district court may not pressure a defendant into expressing remorse such that the failure to express remorse is met with punishment.”). Hence, despite his very troubling conduct on January 6, the Court finds on balance that Klein’s history and characteristics point slightly toward release.

In short, Bates takes the fact that Klein turned on the government he had sworn to protect and finds that that act weighs in favor of release.

Bates judges that this man, whom he described as having committed violence to advance the goal of undermining an election, nevertheless finds that — having already done that — Klein does not pose an unmanageable prospective threat.

Therefore, although it is a close call, the Court ultimately does not find that Klein poses a substantial prospective threat to the community or any other person. He does not pose no continuing danger, as he contends, given his demonstrated willingness to use force to advance his personal beliefs over legitimate government objectives. But what future risk he does present can be mitigated with supervision and other strict conditions on his release.

Again, it’s not the decision itself that is troubling. It’s the thought process Bates used, both for the way Bates flips Klein’s betrayal of his oath on its head, and for the way that Bates views the threat posed by a man who already used force in an attempt to coerce a political end. And it’s all the more troubling knowing how Bates has deferred to the Executive’s claims about the nascent threat posed even by people who have not, yet, engaged in violence to coerce a political end.

Bates similarly showed no deference to the government’s argument that Larry Brock, a retired Lieutenant Colonel who also brought zip ties into the Senate chamber, should have no access to the Internet given really inflammatory statements on social media, including a call for “fire and blood” as early as November. Bates decided on his own that Probation could sufficiently monitor Brock’s Internet use, comparing Brock to (in my opinion) two unlike defendants to justify the decision. Again, the decision itself is absolutely reasonable, but for the guy who decided the government could monitor significant swaths of transnational Internet traffic out of a necessity to identify potential terrorists, for a guy who okayed the access of US person’s content with no warrant, it’s fairly remarkable that he hasn’t deferred to the government about the danger Brock poses on the Internet (to say nothing of Brock’s likely sophistication at evading surveillance).

Again, I’m not complaining about any of these opinions. The outcomes are all reasonable. It is genuinely difficult to fit the events of January 6 into our existing framework (and perhaps that’s a good thing). Plus, there is such a range of fact patterns that even in the Munchel opinion give force to the mob even while trying to adjudicate individuals’ actions.

But either because these discussions are public, or because we simply think about white person terrorism differently, less foreign, perhaps, than we do Islamic terrorism, the very same judges who’ve grappled with these questions for the past two decades don’t necessarily have the ready answers they had in the past.

FISA Judges January 6 cases

Lamberth:

Kollar-Kotelly:

Bates:

Walton:

Hogan:

Boasberg:

Contreras:

While Lindsey Graham Was Stalling Merrick Garland’s Confirmation He Was Hoping for Imminent Hunter Biden and John Durham News

One of the very last things Lindsey Graham did as Senate Judiciary Chair was to send a letter to Acting Attorney General Monty Wilkinson urging him not to do anything about two investigations that — according to his addled little brain — “Democrats would rather go away.” In addition to the Delaware investigation of Hunter Biden, Lindsey included the John Durham investigation in that.

I was even the primary sponsor of bipartisan legislation, favorably reported out of the Senate Judiciary Committee, to protect Special Counsel Mueller’s probe from being terminated. Special Counsel Mueller of course found no evidence of collusion between the Trump campaign and Russia, but it was important for public trust that the probe be completed without interference.

We now find the shoe on the other foot. We have two properly predicated, ongoing investigations Democrats would rather go away: Special Counsel John Durham’s investigation of the Crossfire Hurricane investigation and the investigation by the Delaware U.S. Attorney’s Office into Hunter Biden. Special Counsel Durham’s probe has already yielded a felony conviction.

I am writing to respectfully request that you refrain from interfering in any way with either investigation while the Senate processes the nomination of Judge Merrick Garland to the position of Attorney General. The American public deserve the truth and must know that these investigations will continue without political interference.

There’s a lot that’s ridiculous about this letter. It is laughably false to claim that Mueller “found no evidence of ‘collusion,'” — that would be a false claim even if Lindsey had used the legally relevant term of “conspiracy.”

The shoe is not on the other foot. In contradistinction to Trump’s incessant focus on the Russian investigation, there has been no peep about these investigations from the Biden White House. Instead, Hunter Biden rolled out a book deal the other day, which led his father to focus on the import of recovery from addiction, not legal risk.

Lindsey waves Durham’s single felony conviction around — as compared to Mueller’s much more productive investigation and based on evidence entirely derived from Michael Horowitz’ investigation — even after presiding FISA Judge James Boasberg concluded that Kevin Clinesmith did not commit that crime out of any ill-will and sentenced him to a year of probation.

It’s just such a pathetic effort to sustain conspiracy theories Trump chased, and in spite of the Fox News piece on this letter quoting someone that sounds remarkably like Lindsey Graham talking about an ongoing investigation he shouldn’t know about off the record, it’s not actually clear that either of these will result in a showy prosecution. Hell, for all we know, Durham has shifted his focus to what the FBI Agents who were sending pro-Trump tweets on their phones did during the investigation or why Bill Barr’s DOJ submitted altered documents to a criminal docket, precisely the crime Clinesmith pled guilty to.

To repeat, Graham wrote this to urge Wilkinson, who remains in charge of DOJ and oversees the Durham investigation (Acting Deputy Attorney General John Carlin probably oversees the Hunter Biden one) because Merrick Garland remains the most senior Cabinet official who hasn’t been confirmed yet. This was one of his last acts as Chair of SJC.

But the other major final stunt before handing his gavel over to Dick Durbin was precisely that delay. In spite of Garland’s bipartisan support and in spite of Durbin’s exhortations to stop delaying, Lindsey simply didn’t take up Garland’s nomination when he counterparts were doing so. And so DOJ may not get a confirmed Attorney General until late February or early March.

Probably, Lindsey primarily stalled this confirmation just to impose a price on Democrats for impeaching the former President.

But I had been wondering whether Lindsey didn’t have more in mind, perhaps the delay of charges that DOJ would not unseal without Garland’s sanction. And that may be the case.

But along with that delay, Lindsey has also delayed his opportunity to obtain assurances from Garland that he’ll leave these two investigations Lindsey is obsessed about untouched.

Kevin Clinesmith Sentenced to a Year of Probation

Judge James Boasberg just sentenced Kevin Clinesmith to a year of probation for altering a CIA email describing Carter Page’s prior relationship with the CIA.

Carter Page spoke at some length in his typical rambling style. Notably, he did not call for a harsh sentence for Clinesmith. And much of what he said was irrelevant to the sentencing (he seemed to be pitching to be a FISC amicus, as if the ties between him and Russian intelligence weren’t real concerns).

Anthony Scarpelli, arguing for the government, did not repeat a claim made in their sentencing memorandum, that Clinesmith may have made this alteration for political reasons. Judge Boasberg noted that the DOJ IG Report had found no evidence of such.

The government did suggest that Clinesmith had altered the email for more than just to avoid the work of correcting it. Boasberg didn’t see it that way. He found the argument of Clinesmith’s lawyer, Justin Shur, compelling that there was no personal benefit to Clinesmith because he wasn’t on the hook for the earlier mistakes in the application.

Boasberg also made a quip that, unlike certain politicians, Clinesmith had not chosen to be in the public limelight.

The hearing was perhaps most interesting for Boasberg’s comments, as the presiding FISA judge presiding over a criminal case pertaining to FISA, about the import of the FISA court’s role in checking Executive authority. I’ll return to those comments when a transcript is available.

Ultimately, then, this closes the most productive aspect of the Durham investigation, which has gone on almost as long as the investigation it is supposed to investigate.

The Clinesmith Sentencing Memos: Politically Biased Data In, Politically Biased Data Out

The government and Kevin Clinesmith — the FBI lawyer who altered a document relating to the Carter Page FISA application — submitted their sentencing memos in his case yesterday. The sentencing guidelines call for 0 to 6 months of prison time (as they did for the now pardoned Mike Flynn). Clinesmith asked for probation. The government asked for a sentence in the middle to top of that range — effectively calling for 3 to 6 months of prison time.

I think the government has the better argument on a key point, for reasons that I expect will be very persuasive to the judge in the case, James Boasberg, who is also the presiding FISA judge. The government argues that Clinesmith’s actions undermined the integrity of the FISA process.

The defendant’s conduct also undermined the integrity of the FISA process and struck at the very core of what the FISC fundamentally relies on in reviewing FISA applications: the government’s duty of candor. The FISC serves as a “check on executive branch decisions to conduct surveillance in order to protect the fourth amendment rights of U.S. persons[,]” but it can “serve those purposes effectively only if the applicant agency fully and accurately provides information in its possession that is material to whether probable cases exists.” Order, In Re Accuracy Concerns Regarding FBI Matters Submitted to the FISC, Docket No. Misc. 19-02, at 2 (FISA Ct. Dec. 17, 2019) (internal quotations and citations omitted). Accordingly, and particularly because FISA applications involve ex parte proceedings with no adverse party on the other side to challenge the facts, the government “has a heightened duty of candor to the [FISC].” Id. (internal quotations and citations omitted). In other words, “[c]andor is fundamental to [the FISC’s] effective operation[.]” Id. (citation omitted).

While I think the government’s case on Clinesmith’s understanding of the term “source” is not persuasive, this language is. It matters that Clinesmith did this within the context of the FISA process. Boasberg has a real incentive to ensure that those preparing FISA applications do think of Clinesmith as an object lesson about the duty of candor. I expect he’ll agree with the government and impose some prison term.

That said, the government sentencing memo goes off the rails on another point, one that badly discredits the John Durham investigation.

Both the government and Clinesmith provide the same explanation for why he did what he did: it was a shortcut to avoid filing a footnote with the FISA court.

Clinesmith explains it this way:

Kevin, however, reviewed the OGA email and realized that it did not specifically address the issue of whether Individual #1 had been a source. In a misguided attempt to save himself time and the embarrassment of having to backtrack on his assurance he had it in writing, Kevin forwarded the OGA’s response to the SSA (including the list of OGA reports) immediately after telling the SSA he would do so, but Kevin added the phrase notated in bold to reflect his understanding of Individual #1’s status:

[The OGA uses] the [digraph] to show that the encrypted individual . . . is a [U.S. person]. We encrypt the [U.S. persons] when they provide reporting to us. My recollection is that [Individual #1] was or is . . . [digraph] and not a “source” but the [documents] will explain the details.

OIG Report at 254-55.

And the government endorses that explanation in its sentencing memo (in language that further reinforces why Clinesmith should be treated sternly to preserve the integrity of the FISA process).

By his own words, however, it appears that the defendant falsified the email in order to conceal Individual #1’s former status as a source and to avoid making an embarrassing disclosure to the FISC. Such a disclosure would have likely drawn a strong and hostile response from the FISC for not disclosing it sooner since the FBI had the information in its possession before the first FISA application was filed. Indeed, in the June 19, 2017 instant message conversation with the SSA, the defendant wrote “at least we don’t have to have a terrible footnote” explaining that Individual #1 was a source. OIG Report at 253. While the defendant told OIG he was referring to how “laborious” it would be to draft a footnote explaining that Individual #1 had been an OGA source, see id., that reading is self-serving and absurd. Moreover, as a practical matter, how laborious would it have been to draft a single footnote to explain to the FISC that Individual #1 had been a source for the OGA. The SSA involved in the application understood the defendant to be referring to the terrible optic of just now, in the fourth application, disclosing to the Court that Individual #1 had been a source for another agency after failing to do so in all of the prior applications. See id. Such a disclosure would have undermined the probable cause in the FISA application and the overall investigation of Individual #1, which the defendant was able to avoid by altering the email.

That’s it. At that point, both sides have explained what happened as the kind of bureaucratic sloppiness that can be particularly dangerous where there’s no transparency. Case closed. Clinesmith may not have meant this maliciously but because it happened as part of the FISA process it was very problematic.

Except the government continues by suggesting, without evidence, that Clinesmith did what he did out of political bias.

The public record also reflects that political or personal bias may have motivated or contributed to his offense conduct. As noted in the OIG Report and PSR, the defendant was previously investigated, and ultimately suspended, for sending improper political messages to other FBI employees. See OIG Report at 256 n.400. For example, on the day after the 2016 presidential election, the defendant wrote “I am so stressed about what I could have done differently.” Id. When another FBI colleague asked the defendant “[i]s it making you rethink your commitment to the Trump administration[,]” the defendant replied, “Hell no,” and then added “Viva le resistance.” Id. The defendant was referred to the Office of Professional Responsibility for investigation for these and other related messages, and in July 2018 he was suspended, without pay, for 14 days. The defendant’s prior disciplinary infraction for expressing his political views in a work setting is a relevant aspect of his background. Indeed, it is plausible that his strong political views and/or personal dislike of the current President made him more willing to engage in the fraudulent and unethical conduct to which he has pled guilty. While it is impossible to know with certainty how those views may have affected his offense conduct, the defendant plainly has shown that he did not discharge his important responsibilities at the FBI with the professionalism, integrity, and objectivity required of such a sensitive job position. [my emphasis]

There are several reasons why this argument is not only problematic, but betrays an unbelievable stupidity about the investigation before Durham.

First, as prosecutors admit, they have no evidence that Clinesmith’s claimed bias influenced his actions. The bias “may have motivated” him, “it is plausible” that it did, “it is impossible to know with certainty how those views may have affected his offense conduct.” This kind of language has no place in a sentencing memo. They’re effectively admitting they have no evidence, but relying on their lack of evidence anyway. It’s the kind of shoddy unethical work they’re trying to send Clinesmith to prison for.

Worse still, as Lawfare has shown, the data the government is relying on here comes from a politically biased application of discipline within DOJ. Since 2011, the only cases of people being disciplined for expressing political views on their government devices involved people opposing Trump.

Five employees, the documents show, have been disciplined for private communications using government devices in which they have criticized President Trump. But none, at least not since 2011, has been disciplined for similar conduct with respect to presidential candidates Hillary Clinton or Mitt Romney, or President Barack Obama—or for praising Trump.

[snip]

The verdict is now in, at least for the past four major-party presidential candidates, one of whom served as president of the United States for eight full years. FBI employees who voiced political sentiments in favor of or opposed to Clinton, Obama and Romney did not face consequences—nor did those who praised Trump. Those who criticize the current president appear to be the only people subject to discipline.

Lawfare raises the example of an FBI agent who — unlike Clinesmith, Lisa Page, or Peter Strzok — was running informants targeting Hillary in the Clinton Foundation investigation during the campaign who expressed clear bias. That person — clearly identified as biased by the same Inspector General who identified Clinesmith’s bias — wasn’t disciplined. And there are reports that a key witness in the Durham probe, Bill Barnett, similarly expressed pro-Trump bias on his devices. No one has done an IG Report into whether Barnett’s self-described role in single-handedly preventing the Mueller team from concluding that Mike Flynn lied to protect President Trump reflected improper political bias, much less sent him home for two weeks without pay. You can’t treat OPR’s treatment of biased FBI employees as valid for sentencing because it has already been demonstrated to be itself biased in the same way it treats as discipline-worthy.

Most importantly, you’d have to be fucking stupid to believe that supporting the FISA application of Carter Page in June 2017 would inherently reflect any anti-Trump bias. Even on the first application, the claim that targeting Page would be a way to hurt Trump was a bit of a stretch. At that point, the Trump campaign had very publicly distanced themselves from him because of his embarrassing ties to Russia. Thus, if the FBI treated Trump’s public statements with any weight, then they would be right to view Trump as victimized by Page, someone pushing his pro-Russian views far beyond what the candidate supported, someone removed from the campaign for precisely that reason. That’s one of the potential problems arising from a suspected foreign agent working on a campaign, that the person will make policy commitments that the candidate doesn’t support on behalf of the foreign country in question. Still, you might argue (and Bill Barr has argued) that the FBI targeted Page as a way to collect campaign emails, so one might make some claim to support the case that by targeting Page the FBI was targeting Trump with the October 2016 application.

But Clinesmith wasn’t in the loop on the non-disclosure of Page’s ties with CIA on that first application.

Kevin was not aware of that information, however. When he assisted the FBI’s efforts to obtain the initial FISA warrant, Kevin knew of no prior relationship between Individual #1 and the OGA. And he was not involved in any discussions—including the one discussed above between the case agent and DOJ attorney—concerning whether or not to include information about that relationship in the FISA application. As was typical, the DOJ attorney worked primarily with the case agent to collect and develop information for the FISA application. The first time Kevin was asked to inquire into whether, and to what extent, Individual #1 had a relationship with the OGA was in connection with the fourth and final application.

To suggest that someone would target Page in June 2017 because of anti-Trump bias, though, takes gigantic flights of fancy. Already in October 2016, it was clear that Page (like every other person originally targeted under Crossfire Hurricane) was using Trump, attempting to monetize his access to Trump to get a plush deal to start a think tank that, in his case, would have been funded by the Russian government. Page boasted to Stefan Halper the Russians had offered him an “open checkbook.”

But even before the first renewal in January 2017, Page had victimized Trump in the way that is dangerous for counterintelligence cases. When he was in Russia in December 2016 — at a time when he was still hoping to get a think tank funded by the Russian government — Page claimed to speak on behalf of Trump with respect to Ukraine policy.

According to Konstantin Kilimnik, Paul Manafort’s associate, Page also gave some individuals in Russia the impression that he had maintained his connections to President-Elect Trump. In a December 8, 2016 email intended for Manafort, Kilimnik wrote, “Carter Page is in Moscow today, sending messages he is authorized to talk to Russia on behalf of DJT on a range of issues of mutual interest including Ukraine.”

There’s no record that Page made those representations with the approval of Trump. As such, Page’s representations risked undermining Trump’s ability to set his own foreign policy, whatever it was.

By June, moreover, Page had been totally marginalized by Trump’s people. The fourth warrant served significantly to obtain encrypted content from a phone Page had destroyed when he came under investigation. Tactically, there’s almost no way that that application would have generated new content involving Trump’s people because they were no longer talking to Page. So there’d be no political advantage to targeting him, neither based on the potential content the FBI might collect nor on any political taint from a guy the campaign had loudly dissociated from nine months earlier. Indeed, if your goal was to paint Trump as a pro-Russian asset, focusing on Page — the guy Trump himself had distanced himself from — is the last thing you’d do in June 2017. It’s just a profoundly stupid attack from Durham’s prosecutors, one with no basis in logic or (as the prosecutors admit) evidence.

In short, not only does the gratuitous, evidence-free insinuation that Clinesmith did what he did out of political bias misrepresent the biased quality of the targeting of those OPR investigations, but it fundamentally misunderstands why the FBI would investigate the infiltration of a campaign by a suspected foreign agent. Someone infiltrating Trump’s campaign on behalf of Russia could and — in Page’s misrepresentations in Moscow in December 2016 — did harm Trump. That’s a harm the FBI is paid to try to prevent. Here, prosecutors are trying to criminalize Clinesmith’s efforts to protect Trump from that kind of damage.

After making it clear in his first official filings that Durham’s team didn’t understand the investigation they were investigating, in this one, his prosecutors make it crystal clear they don’t understand how, if an agent of a foreign power were to hypothetically infiltrate a political campaign (which is what the FBI had good reason to believe in October 2016 and more evidence to believe by December 2016), it could be damaging to the campaign and to the President and to the country. That’s not just dangerous malpractice given their involvement in this case, but it betrays a really basic level of stupidity about how the world works.

The government is right that Clinesmith’s alteration of a document should be treated aggressively given that it occurred as part of the FISA process. But oh my goodness has the government discredited both this sentencing filing and the larger Durham investigation by betraying continued ignorance about the investigation, the politicized nature of the evidence they’re getting, and basic facts about counterintelligence investigations.

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

The Frothy Right Proves Trump Buried 7 Details of Russian Outreach by Wailing about Carter Page

The other day, the government released a spreadsheet that the FBI used to validate the Steele dossier.

The spreadsheet shows that, if the Steele dossier included disinformation, the disinformation was really well crafted, because the disinformation was close enough to the truth to make known events — like Paul Manafort’s expanding corruption scandal — appear to confirm the dossier.

It also shows that when John Solomon claimed, in 2019, that the spreadsheet “was a sea of blanks,” he was wrong.

Multiple sources familiar with the FBI spreadsheet tell me the vast majority of Steele’s claims were deemed to be wrong, or could not be corroborated even with the most awesome tools available to the U.S. intelligence community. One source estimated the spreadsheet found upward of 90 percent of the dossier’s claims to be either wrong, nonverifiable or open-source intelligence found with a Google search.

In other words, it was mostly useless.

“The spreadsheet was a sea of blanks, meaning most claims couldn’t be corroborated, and those things that were found in classified intelligence suggested Steele’s intelligence was partly or totally inaccurate on several claims,” one source told me.

Given the redactions, it is unclear whether the redacted material affirmatively disproves claims from the dossier or provides partial corroboration. Since I’ve argued the dossier was problematic for longer than even the frothers, I don’t have a stake in that. But the spreadsheet in no way was full of blanks. There are relatively few blank entries in the spreadsheet.

Which means, if it was disinformation, it succeeded in wasting a lot of the FBI’s time.

But a potentially more important detail from the spreadsheet is that it shows the Carter Page FISA collection was useful in testing the dossier’s claims. Probably, given other soft corroboration and Igor Danchenko’s claims to have two independent sources backing the claim, the FISA collection produced evidence that made it harder to rule out a meeting between Igor Sechin and Page (which is what the Mueller Report ultimately concluded, that they couldn’t rule it out; 302s show there was time in Page’s schedule he didn’t account for).

And Trump has succeeded in burying that useful intelligence, even the intelligence collected during a period when — the bipartisan SSCI Report concluded — the FISA application targeting Page was appropriate.

In September, the FISA Court unsealed an opinion explaining its decision to sequester the intelligence collected under the Carter Page orders. The order reveals that, when the Court asked whether it should treat the first two applications targeting Page the same way it would treat the two for which DOJ had withdrawn probable cause determination, DOJ declined to do so.

In fact, in response to the Conrt’s directive to explain why retaining the Page FISA information “in the manner intended by the government, and any contemplated use or disclosure of it,” comport with§§ 1809(a)(2) and 1827(a)(2), Jan. 7, 2020, Order at 2, the government declined to argue, even alternatively, that those provisions do not apply ( or apply differently) to information obtained under the first two dockets. See Feb. 5, 2020, Resp. at 28-29. Under the circumstances, the Court will assume that§§ l 809(a)(2) and l 827(a)(2) apply to information acquired under color of the first and second dockets just as, per the government’s admission, they apply to information acquired under color of the third and fourth.

This had the result that, even though DOJ itself did not withdraw its probable cause determination, and even though a bipartisan committee at SSCI believed the initial applications were merited, all four applications targeting Page would be treated as if the applications were improper.

DOJ did not tell the FISC that it was (and probably still is) criminally investigating several people involved in these applications, meaning the FISC opinion sequestering case file information would be make necessary source information unavailable for anyone targeted in that investigation to show that the applications were reasonable.

That may have been part of the point.

And the Steele dossier spreadsheet shows in tangible form that useful information — whether it corroborated suspicions against Page or disproved them — has been sealed permanently as a result. The spreadsheet redacts information on the following topics because of FISC’s decision to sequester everything collected under the Page applications:

I get why the FISC would want to rule aggressively to protect Carter Page’s privacy, and I’m fine with the decision.

But this intelligence seems like it would be really useful to understanding the Russian operation, even if Page was targeted by Russian disinformation. Indeed, this intelligence would be really important to understand the nature of the disinformation Russia fed the US.

The decision by Trump’s DOJ not to stand by its earlier decision that the first two applications were appropriate had the effect, then, of burying intelligence on Trump and the Russian operation.

Which was likely part of the point.

The Latest Stinky 702 Opinion Bodes Poorly for the Next One

Last night, I Con the Record released last year’s 702 opinion, approved by current presiding FISA Judge James Boasberg. It’s stinky. It shows continued violations of querying procedures (which I’ll describe below), as well as on new troubling issue at NSA (which I hope to describe in a follow-up).

Worse still, the opinion, the timing, and recent Bill Barr actions suggest we’ll see an even stinkier opinion in maybe another year.

The opinion we’re getting on September 3, 2020, was released by FISC on December 6, 2019. Not only has it taken nine months to release this opinion, but ODNI sat on it in anticipation of and in the aftermath of the DOJ IG Report on Carter Page, which was publicly released December 9, 2019. That means that the delay in releasing this led to a disproportionate focus on events that happened three or four years ago, but not on events that have persisted under Billy Barr.

But the timing is important for several other reasons: the government has to be preparing its next reapproval package now (assuming the 2019 certificates are good until December 5, it would need to submit a new package by November 5). That’s significant for several reasons. First, as laid out by the timeline below, while the FBI waited for a FISCR review of an October 2018 Boasberg decision that its querying procedures didn’t comply with a new requirement passed by Congress, there were ongoing querying problems of the same type, including both the deliberate querying of 702 information to vet sources (and cops), but also at least one mass query that ended up finding seven leads out of 16,000 Americans. There was a significant delay in reporting some of these:

  • Querying violations found in June reported September 18, 2019
  • Querying violations found in July reported September 6, 2019
  • August querying violation involved 16,000 people reported November 25, 2019

In addition, there were several more reports on querying violations, one on September 17, and another on September 20.

That is, the reports on some of these were delayed until after FISCR ruled (on July 12), and for many of them, there was a delay until around the same time as the government submitted their new reauthorization packet on September 17, 2019 (which is the package that led to this December 6 opinion).

Then, after submitting the reauthorization package, starting on October 4, 2019, the FBI asked to be excused from two reporting requirements imposed in 2018.

In one case — requiring that FBI has retained 702 information in some archival systems — the FBI waited to comply with a change in reporting requirements made in October 2018 until it was prepping the 2019 certificates, and then asked for a weaker reporting requirement (and got it, prospectively).

It must be noted, however, that the government has unjustifiably disregarded the current reporting requirement. Instead of taking concrete steps to comply even partially with the Court’s directive (or timely seeking relief from it), it chose to wait while the FBI reportedly worked on guidance to instruct its personnel on how to handle unminimized Section 702 information on these archival systems. See Letter Regarding the FBI’s Steps to Implement an Aspect of the Court’s 2018 Section 702 Opinion and Order, Sept. 27, 2019, at 3. In fact, it has taken so long to prepare this guidance that, instead of using it to instruct personnel on the October 2018 reporting requirement, which the government reports was the original plan, the FBI now intends to address only the narrower reporting requirement incorporated into the FBI’s proposed minimization procedures. See Letter Regarding the FBI’s Steps taken by the FBI to implement an aspect of the Comt’s 2018 Section 702 Opinion and Order, Nov. 20, 2019, at 4.

It should be unnecessary to state that government officials are not free to decide for themselves whether or to what extent they should comply with Court orders. The government has not sought retrospective relief from the reporting requirement imposed by the Court on October 18, 2018. Although the AG and DNI have amended the prior Section 702 certifications to authorize the FBI to apply its proposed minimization procedures to information acquired under prior certifications, that authorization only becomes “effective on October 17, 2019, or on the date upon which [this Court] issues an order concerning [the] amendments pursuant to subsection 702(j)(3) of the Act, whichever is later.”[redacted] The Court’s approval of those amendments does not have any nunc pro tune effect, nor does it excuse the government from reporting instances of retention that it is already obligated to report. With respect to those instances of retention, the October 2018 reporting requirement remains in effect.

In another — far more important — case, the FBI asked for the reporting requirement (on when an Agent conducts a criminal search and finds 702 information) to be eliminated entirely, again, after the reauthorization package was completed. This reporting requirement was designed to test the FBI’s now provably false claim that agents would never find 702 information when conducting criminal searches. It goes to the heart of concerns about Fourth Amendment violations.

Boasberg relaxed, though did not eliminate, that reporting requirement.

The government has not reported such instances in timely fashion. Rather, they have been reported to the Court belatedly, usually after they were uncovered during oversight reviews. The government now seeks relief from this reporting requirement “because the requirements in Section 702(f)(2) are a sufficient mechanism for the Court to assess the risk that the results of a query designed to elicit evidence of crimes unrelated to foreign intelligence will be viewed or otherwise used in connection with an investigation that is unrelated to national security.” October 4, 2019, Request at 8. But it would be premature to regard the government’s implementation of Section 702(f)(2) as a sufficient source of information. As discussed above, the FBI has repeatedly accessed Section 702-acquired contents under circumstances requiring a FISC order under Section 702(£)(2), but has never applied for such an order.

Closer to the mark is the government’s contention that implementing both Section 702(f)(2) and the November 2015 reporting requirement could complicate training and systems design. See October 4, 2019, Request at 8-9. For example, Section 702(f)(2) looks to whether a query involves a U.S.-person query term, while the applicability of the November 2015 reporting requirement depends on whether U.S.-person information is retrieved. And Section 702(f)(2) is implicated only when contents are accessed, while the November 2015 reporting requirement · does not distinguish between contents and non-contents information.

The Court has decided to retain a reporting requirement separate from Section 702(f)(2) because the obligation to get a FISC order under that section is limited to queries conducted in the context of a predicated criminal investigation. The FBI conducts numerous queries of Section 702 information at earlier investigative stages. See October 18, 2018, Opinion at 75. Reports about queries at those stages remain relevant to the Court’s interest in receiving information about the extent to which U.S.-person privacy interests are implicated by queries that are not designed to find and extract foreign-intelligence information. The Court has concluded, however, that it is appropriate to modify the prior reporting requirement so that it will focus on the use of U.S.-person query terms, rather than on whether U.S.-person information is accessed as a result of a query, and will be triggered only when contents information is accessed. Such modifications should make it considerably simpler for the government to implement the requirement in combination with Section 702(f)(2), while still requiring reporting in situations where Fourth Amendment concerns are likely to be implicated. See October 18, 2018, Opinion at 93 (queries that use U.S.-person query terms and result in review of contents are “the subset of queries that are particularly likely to result in significant intrusion into U.S. persons’ privacy”).

Ultimately, Boasberg approved the certifications, effectively arguing that FBI just needed time to be trained on them.

The Court has previously assessed that requiring FBI personnel to document why a query involving a U.S.-person query term is reasonably likely to have returned foreign-intelligence information or evidence of crime before examining contents returned by the query should “help ensure that FBI personnel … have thought about the querying standard and articulated why they believe it has been met” and prompt them “to recall and apply the guidance and training they have received on the querying standard.” See id. at 93; see also In re DNI/AG Certifications at 41 (that requirement may “motivate FBI personnel to carefully consider … whether a query satisfies” the standard). The recently reported querying violations suggest that some FBI personnel still need such help. That is not altogether surprising. As discussed above, the FBI is really just sta11ing to implement that documentation requirement on a comprehensive basis. For that reason, the improper queries described above do not undermine the Court’s prior determination that, with that requirement, the FBI’s querying and minimization procedures meet statutory and Fourth Amendment requirements.

I suggested when the 2018 package was released last year, we’d start learning details of back door searches that had been implicit since 2007.

Nevertheless, 12 years after this system was first moved under FISA (notably, two key Trump players, White House Associate Counsel John Eisenberg and National Security Division AAG John Demers were involved in the original passage), we’re only now going to start getting real information about the impact on Americans, both in qualitative and quantitative terms. For the first time,

  • We will learn how many queries are done (the FISC opinion revealed that just one FBI system handles 3.1 million queries a year, though that covers both US and non US person queries)
  • We will learn that there are more hits on US persons than previously portrayed, which leads to those US persons to being investigated for national security or — worse — coerced to become national security informants
  • We will learn (even more than we already learned from the two reported queries that this pertained to vetting informants) the degree to which back door searches serve not to find people who are implicated in national security crimes, but instead, people who might be coerced to help the FBI find people who are involved in national security crimes
  • We will learn that the oversight has been inadequate
  • We will finally be able to measure disproportionate impact on Chinese-American, Arab, Iranian, South Asian, and Muslim communities
  • DOJ will be forced to give far more defendants 702 notice

The thing is, 11 months after the release of that opinion, we’re still not seeing results — in the form of declassified opinions — of what FBI’s querying really looks like, once they’re forced to actually track it. The entirely of this 2019 opinion still shows what Boasberg considers the pre-implementation period for this reporting regime.

And the FBI has been trying to weaken it for two years now!

There’s one more indication that we may see troubling details once we get the next 702 opinion in a year’s time, if we do get it.

Less than a week ago, Billy Barr issued a memo imposing a new national security auditing function on the FBI.

To enhance the FBI’s existing compliance efforts, the Director of the FBI is taking steps to build a more robust and exacting internal audit capability, including the creation of an office focused on auditing the FBI’s national security activities. To support that effort, I hereby authorize the Director of the FBI to commence the process of establishing, consistent with law and policy, the Office ofInternal Auditing (“OIA”). A separate office devoted to internal auditing and headed by a senior FBI official will ensure that ri gorous and robust auditing, which is an essential ingredient to an effective compliance regime, is canied out. The FBI shall work with the Justice Management Division to make the required reorganization notifications regarding this new office. Once established, OJA shall be led by an Assistant Director who shall have the same reporting chain as the Assistant Director for OIC and the Assistant Director for INSD. The Director of the FBI shall appoint the Assistant Directors for OIC, INSD, and OIA, with the approval of the Deputy Attorney General.

OIC, INSD, and OIA shall be responsible for carrying out the internal compliance functions of the FBI as assigned by the Director of the FBI, who shall ensure that each office does not duplicate responsibilities and is adequately staffed to perform its assigned functions. The Deputy Attorney General and the Assistant Attorney General for Administration shall coordinate with the Director to ensure that those functions are resourced and funded appropriately.

Even though Barr says the newly created OIA won’t overlap with the compliance and inspection functions at FBI, it’s not clear why not. Further, Barr’s memo does not explicitly say why FBI needed a new compliance review for national security cases rather than the existing legal reviews that had conducted such review.

Don’t get me wrong, done correctly, this could be a long-needed reform. It’s not clear it is being done correctly. It seems partly timed to the elections (with a report on implementation due just before then). And DOJ IG — which has, historically, found abundant problems with the functions enumerated here — will not review the efficacy of this until around May 2022.

The Department ofJustice Inspector General has agreed to assess the implementation of this memorandum (“initial assessment”) no sooner than 18 months after the establishment of OIA and to report such assessment, consistent with the Inspector General Act, to the Attorney General, Deputy Attorney General, Director of the FBI, and Assistant Attorney General for National Security. The Inspector General has furt her agreed to conduct a subsequent assessment no later than five years after the initial assessment, and periodically thereafter as determined by the Inspector General, and to report such assessments, consistent with the Inspector General Act, to the Attorney General, Deputy Attorney General, Director of the FBI, and Assistant Attorney General for National Security.

Within 60 days of the date of the Inspector General’s initial assessment, the Director of the FBI shall provide the Attorney General and Deputy Attorney General an assessment of the implementation of this memorandum, including an assessment of the effectiveness of the FBI’s compliance structure and whether compliance functions should be consolidated under an Executive Assistant Director.

Which is to say, this initiative, while it may be long overdue, feels like Barr trying to get ahead of something or somethings.

Billy Barr is an authoritarian. He doesn’t care about surveillance (indeed, he’s the grandfather of the dragnets that Edward Snowden revealed).

But something must have led him to take action to make it look like he cares.

Timeline

March 24-27, 2017: The querying of 70K facilities “associated with” persons who had access to the FBI’s facilities and systems. FBI General Counsel (then run by Jim Baker, who had had these fights in the past) warned against the query, but FBI did it anyway, though did not access the communications. This was likely either a leak or a counterintelligence investigation and appears to have been discovered in a review of existing Insider Threat queries.

December 1, 2017: FBI conducted queries on 6,800 social security numbers.

December 7-11, 2017, the same entity at FBI also queried 1,600 queries on certain identifiers, though claimed they didn’t mean to access raw data.

February 5 and 23, 2018: FBI did approximately 30 queries of potential sources.

February 21, 2018: FBI did 45 queries on people being vetted as sources.

March 27, 2018: Initial 2018 package submitted.

April 5, 2018: Extension order.

Before April 13, 2018: an unspecified FBI unit queried FISA acquired metadata using 57,000 identifiers of people who work in some place.

October 17, 2018: Order finding FBI querying procedures do not comply with FISA.

February 21, 2019: NSA submits notice of Upstream violations.

February 26, 2019: Date after which NSA fixes Upstream violations.

June 2019: Oversight review finds violations of querying rules, including to vet a source, a candidate to be a local cop, and to find information about a planned visit by foreign officials.

June 26, 2019: Notice that CIA assistance to NCTC does not comply with rules.

July 2019: Oversight review finds violations of querying rules, including of college students in a “Collegiate Academy” and individuals who visited an FBI office. 

July 12, 2019: FISCR opinion finding that FBI querying procedures do not comply with FISA.

August 2019: Query of 16,000 persons identifies seven leads. 

August 12, 2019: FBI submits new querying procedures.

August 23, 2019: NSA complains about post-tasking for some collections.

September 4, 2019: Approval of amended FBI querying procedures.

September 6, 2019: Report of July 2019 query violations.

September 13, 2019: Notice regarding 702 query response showing 100 characters of text surrounding search term.

September 17, 2019: Application submitted, including proposed improvements on targeting procedures.

September 17, 2019: Notice of at least four querying violations involving taking steps to access 702 products without getting a warrant.

September 18, 2019: Report on June 2019 query violations.

September 20, 2019: Reports of other FBI querying violations, including to vet sources, to search on complainants, and to vet potential cops.

September 26, 2019: 45-day report on fulfilling FBI query rules.

October 1, 2019: Review period extended to December 16, 2019 (because of NSA and NCTC compliance issues, not FBI ones).

October 3, 2019: FISC orders further information.

October 4, 2019: FBI requests relief from requirement to report 702 access in response to criminal search.

October 10, 2019: Notice of overly attenuated NSA queries, including content searches using 23 US person identifiers.

October 11, 2019: Notice on FBI violations tied to not opting out of including FISA in searches.

November 4, November 13, 2019: Government provides additional information.

November 8, 2019: 45-day report on fulfilling FBI query rules.

November 14, 2019: Notice on violations tied to not opting out of including FISA in searches.

November 20, 2019: Government tells FISC that they never tried to comply with reporting requirement imposed in October 2018, are instead training their new proposed compliance method.

November 25, 2019: Notice regarding August 2019 mass query.

mid-December 2019: Date FBI promised to impose new record-keeping on FBI’s queries.

January 2020: Date NSA promised to have purged improperly acquired communications.

Billy Barr Signs a Memo That Wouldn’t Have Helped Carter Page

For eight months, FBI and DOJ have been diligently making changes to the way they do FISA applications, with regular reports into the FISA Court. Whether or not those changes are adequate to fix the problems that beset the Carter Page application, they represent significant effort.

Curiously, a memo Billy Barr just released purporting to enhance compliance in FISA applications appears unaware of the filings at FISC, and instead cites only changes implemented in Christopher Wray’s response to the December 9, 2019 DOJ IG Report (see PDF 466 for his letter).

Therefore, in order to address concerns identified in the report by the Inspector General of the Department of Justice entitled, “Review of Four FISA Applications and Other Aspects of the FBI ‘s Crossfire Hurricane Investigation” (December 2019), and to build on the important reforms described by the Director of the Federal Bureau of Investigation (“FBI”) in his December 6, 2019, response to the Inspector General’s report, I hereby direct that the following additional steps be taken:

Arguably (as I’ll show), at least one of the provisions in the memo is weaker than a change FISC mandated itself.

And while the memo claims to want to protect the rights of people like Carter Page, Barr’s memo would in no way apply to Page. That’s because the special protections tied to political campaigns only apply to those currently associated with campaigns.

With respect to applications for authorization to conduct electronic surveillance or physical searches pursuant to FISA targeting (i) a federal elected official or staff members of the elected official, or (ii) an individual who is a declared candidate for federal elected office or staff members or advisors of such candidate’s campaign (including any person who has been publicly announced by a campaign as a staff member or member of an official campaign advisory committee or group, or any person who is an informal advisor to the campaign),

By the time FBI applied for a FISA application targeting Page, several prominent members of the campaign had dissociated the campaign from him — for his controversial ties to Russia! — in no uncertain terms; those disavowals were included in the FISA application. Yes, Page had been announced as an informal advisor, but then the campaign made very clear he was no longer an informal advisor (and even claimed he never had been).

To be sure, some of the changes proposed — both those limited to those connected with a campaign and the more general ones — are improvements. For example:

  • ¶3(b) requires non-delegable sign-off by the Director of the FBI and the Attorney General) of any application targeting someone associated with a campaign; while requiring non-delegable sign-off may introduce some problems, this is the kind of certification recommended by the DOJ IG Report (though arguably is already incorporated in the December 6, 2019 letter Barr cited).
  • ¶3(d) and ¶3(e) institutes a shorter renewal deadline for these political FISAs, 60 days instead of 90, and requires monthly reports to FISC describing the results and affirming the continued need for such surveillance. These are arbitrary but perhaps useful improvements, not least because by increasing the paperwork required to surveil a political target, they make it more likely that such surveillance will actually be worth it (as the third and fourth applications targeting Page were not).
  • ¶3(f) requires that any political application describe whether less intrusive investigative procedures have been considered — something already required in all FISA applications — and an explanation why those procedures weren’t used. Such a requirement would have been useful in Page’s case (as I noted last year), because it would have emphasized the efforts FBI was making not to take public actions, but in practice this response would almost always point to DOJ guidelines on avoiding taking public actions that might affect an election and might actually encourage the increased reliance on informants, something Trump’s people claim equates to FISA surveillance. A requirement like this might be useful if it took place in the scope of a debate about what techniques were intrusive or not, but there’s zero evidence such a debate has happened.

The memo has two parts on defensive briefings, probably designed to placate Republicans, but which likely don’t do much in practice:

  • For political targets, ¶3(a) requires the FBI Director to consider a defensive briefing before targeting someone, and if no briefing is given, then the Director must document it in writing. FBI did consider defensive briefings for Trump’s people, but for various reasons decided not to do it, but in the case of Carter Page, he had long been wittingly sharing non-public information with known Russian intelligence officers and when FBI tried to explain why such dalliances were problematic in March 2017, he simply disagreed. A defensive briefing for Page would have been as useless as President Obama’s warnings to Trump that Mike Flynn was a problem.
  • For all counterintelligence concerns pertaining to election interference, ¶4 requires the FBI Director to “promulgate procedures, in consultation with the Deputy Attorney General, concerning defensive briefings.” Not only is this requirement utterly silent about what such procedures should do, not only did Wray commit to a similar recommendation in his December 2019 letter, but defensive briefings are precisely what Acting Director of National Intelligence John Ratcliffe is currently politicizing.

As for key review processes mandated by the memo, some are just redundant at best or stupid at worst. For example:

  • ¶1 requires FBI personnel to review the accuracy sub-file before submitting a FISA application. That process is already in place. It’s called the Woods Procedure and it’s the procedure that failed to find errors in the Page application.
  • ¶2 requires someone — it doesn’t say whether FBI or NSD bears responsibility — to report any misstatement or omission to FISC. That’s already required. Plus, this requirement twice gives NSD the authority to determine whether something amounts to a reportable incident. The ongoing DOJ IG investigation into all the errors in FISA applications suggest NSD has deemed some omissions and errors not to be worthwhile of reporting (indeed, there were multiple instances in the Page applications where NSD did not include information they knew of, in at least one case information that FBI did not have). In short, this paragraph seems more focused on ensuring NSD — and not an outside entity, like DOJ IG or the FISC — retains the ability to determine what is and is not a reportable error.
  • ¶3(c) requires an FBI Assistant Special Agent in Charge who is not involved in an investigation to review the FISA application of any defined political targets. The DOJ IG Report found that even NSD lawyers involved in an investigation don’t have enough insight into a case to identify omissions. While an ASAC might have access to case files that NSD lawyers do not, there’s zero reason to believe someone with even less insight into an investigation would better be able to spot omissions than an NSD lawyer with an ongoing role in the application. So this review is likely useless busywork.
  • ¶3(g) requires the Assistant Attorney General to review the case file of a political target within 60 days of its initial grant to make sure everything is kosher, including that the investigation was properly predicated. In conjunction with the shorter renewal timeframe of such applications (which would require DAG sign-off in any case), all this amounts to is a heightened review on first renewal (the memo does not say this is not delegable, so such a review will and probably should not be done by the AAG). But in Page’s case, it would have done nothing (indeed, at the time this would have been done for Page, he was in Russia meeting high level officials, falsely claiming to represent Trump’s interests).

In short, while some of these changes are salutary, a number are just show, and some are worthless busy work.

But my real concern about them — particularly given how Barr only invokes the first Christopher Wray letter to DOJ IG — is how they interact with other details of the FISA reform events that have transpired since last December.

For example, in the last month, the FBI and DOJ engaged in a big dog-and-pony show to claim that none of the errors DOJ IG had identified in 29 FISA applications they reviewed affected probable cause and just two were material. Effectively, that big press push amounted to having NSD pre-empt DOJ IG’s findings in an ongoing investigation, and the public details of NSD’s own review raise abundant reason to doubt the rigor of it. So Barr’s emphasis (in ¶2) on NSD’s role in deciding what is an error seems to be a reassertion of the status quo ante in the midst of an ongoing investigation that is still assessing whether NSD’s reviews are adequate. That makes this feel like another attempt to pre-empt an ongoing investigation.

Even more troubling, Barr’s memo seems unaware of — and in key respects, conflicts with — an order presiding FISA Judge James Boasberg issued in March. As I noted at the time, that order recognized something that was apparent from the DOJ IG Report but which the IG either missed, ignored, or was bureaucratically unable to address: it wasn’t just FBI that dropped the ball on the Page FISA application, NSD did so too.

According to the OIG Report, the DOJ attorney responsible for preparing the Page applications was aware that Page claimed to have had some type of reporting relationship with another government agency. See OIG Rpt. at 157. The DOJ attorney did not, however, follow up to confirm the nature of that relationship after the FBI case agent declared it “outside scope.” Id. at 157, 159. The DOJ attorney also received documents that contained materially adverse information, which DOJ advises should have been included in the application. Id. at 169-170. Greater diligence by the DOJ attorney in reviewing and probing the information provided by the FBI would likely have avoided those material omissions.

Because of that, Boasberg required that DOJ attorneys, too, sign off on all FISA applications, and suggested they get more involved earlier in the process.

As a result, reminders of DOJ’s obligation to meet the heightened duty of candor to the FISC appear warranted. The Court is therefore directing that any attorney submitting a FISA application make the following representation: “To the best of my knowledge, this application fairly reflects all information that might reasonably call into question the accuracy of the information or the reasonableness of any FBI assessments in the application, or otherwise raise doubts about the requested probable cause findings.”

DOJ should also consider whether its attorneys need more formalized guidance – e.g. , their own due-diligence checklists. Consideration should also be given to the potential benefits of DOJ attorney visits to field offices to meet with case agents and review investigative files themselves, at least in select cases – e.g. , initial applications for U.S.-person targets. Increased interaction between DOJ attorneys and FBI case agents during the preparatory process should not only improve accuracy in individual cases but also likely foster a common understanding of how to satisfy the government’s heightened duty of candor to the FISC.

There’s no mention of Boasberg’s order and suggestions in Barr’s memo, and it’s unclear whether that’s because he has no idea what has transpired with the FISC, whether he thinks he can ignore Boasberg’s order, or whether his memo is just for show. In any case, it’s notable that Barr’s memo doesn’t incorporate the key insight Boasberg made, that FISA requires increased diligence from NSD, too.

Similarly, because Boasberg deemed the role of FBI’s lawyers to be “perfunctory,” he asked for more details about their role.

But the role described in the revised Woods Form appears largely 10 perfunctory. To assess whether additional modifications to the Woods Form or related procedures may be warranted, the Court is directing the FBI to describe the current responsibilities FBI OGC lawyers have throughout the FISA process.

Here, Barr has added one more FBI person (an ASAC uninvolved in the case) to the process, whose review can only be perfunctory, rather than ensuring that those with more visibility on the process have a substantive role. Barr also doesn’t incorporate into his memo a change that came from Amicus David Kris after the Wray letter cited in Barr’s memo that case agents attest to the accuracy of FISA reviews, a recommendation FBI adopted, which might accomplish more than any review by an outside ASAC.

There’s one more reason this memo is concerning. ABC reported the other day that long-time Deputy Assistant Attorney General for Legal Policy Brad Wiegmann was reassigned two weeks ago and replaced by a far less experienced political appointee, Kellen Dwyer (though I’ve seen people vouch for his integrity — he’s not a hack). Wiegmann would likely be part of discussions about how to meet FISC’s demands for further accountability.

Though a relatively small unit of fewer than two dozen attorneys, the Office of Law and Policy participates in almost every National Security Council meeting, works with congressional staff to draft new legislation, and conducts oversight of the FBI’s intelligence-gathering activities.

“[It] has been sort of the center of gravity for the Department of Justice on national security policy, and it’s a central role,” said Olsen, who at one point ran the department’s National Security Division and later advised Hillary Clinton’s 2016 presidential campaign.

Wiegmann has led the office since the Obama administration and for almost all of the Trump administration.

In particular, Wiegmann has long been involved in efforts to meet FISC’s demands regarding surveillance it authorizes. Here, just days after Wiegmann’s removal, Barr is issuing a memo that seems unaware of and in at least a few respects, potentially inconsistent with, explicit orders from the presiding FISA Judge.

There’s nothing obviously offensive about this memo. But it would do little to prevent a repeat of the Carter Page problems. And it’s not clear that it adds anything to the very real efforts to improve the FISA process at DOJ. Indeed, it may well be an effort to pre-empt more substantive concerns about the role of NSD (as opposed to FBI) in this process.

Barr released a second memo creating an audit mechanism for national security functions that feels like an effort to get ahead of ongoing DOJ IG investigation. I welcome additional oversight of FBI’s national security functions, though the timing of this and the timing of its implementation — with a report on its creation due just days before the election but all review of its functionality years down the road — feels like an attempt to stave off real legal oversight.