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A Dragnet of emptywheel’s Most Important Posts on Surveillance, 2007 to 2017

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

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

To celebrate, the emptywheel team has been sharing some of our favorite work from the last decade. This is my massive dragnet of surveillance posts.

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

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

2007

Whitehouse Reveals Smoking Gun of White House Claiming Not to Be Bound by Any Law

Just days after opening the new digs, I noticed Sheldon Whitehouse entering important details into the Senate record — notably, that John Yoo had pixie dusted EO 12333 to permit George Bush to authorize the Stellar Wind dragnet. In the ten years since, both parties worked to gradually expand spying on Americans under EO 12333, only to have Obama permit the sharing of raw EO 12333 data in its last days in office, completing the years long project of restoring Stellar Wind’s functionalities. This post, from 2016, analyzes a version of the underlying memo permitting the President to change EO 12333 without providing public notice he had done so.

2008

McConnell and Mukasey Tell Half Truths

In the wake of the Protect America Act, I started to track surveillance legislation as it was written, rather than figure out after the fact how the intelligence community snookered us. In this post, I examined the veto threats Mike McConnell and Michael Mukasey issued in response to some Russ Feingold amendments to the FISA Amendments Act and showed that the government intended to use that authority to access Americans’ communication via both what we now call back door searches and reverse targeting. “That is, one of the main purposes is to collect communications in the United States.”

9 years later, we’re still litigating this (though, since then FISC has permitted the NSA to collect entirely domestic communications under the 2014 exception).

2009

FISA + EO 12333 + [redacted] procedures = No Fourth Amendment

The Government Sez: We Don’t Have a Database of All Your Communication

After the FISCR opinion on what we now know to be the Yahoo challenge to Protect American Act first got declassified, I identified several issues that we now have much more visibility on. First, PAA permitted spying on Americans overseas under EO 12333. And it didn’t achieve particularity through the PAA, but instead through what we know to be targeting procedures, including contact chaining. Since then we’ve learned the role of SPCMA in this.

In addition, to avoid problems with back door searches, the government claimed it didn’t have a database of all our communication — a claim that, narrowly parsed might be true, but as to the intent of the question was deeply misleading. That claim is one of the reasons we’ve never had a real legal review of back door searches.

Bush’s Illegal Domestic Surveillance Program and Section 215

On PATRIOTs and JUSTICE: Feingold Aims for Justice

During the 2009 PATRIOT Act reauthorization, I continued to track what the government hated most as a way of understanding what Congress was really authorizing. I understood that Stellar Wind got replaced not just by PAA and FAA, but also by the PATRIOT authorities.

All of which is a very vague way to say we probably ought to be thinking of four programs–Bush’s illegal domestic surveillance program and the PAA/FAA program that replaced it, NSLs, Section 215 orders, and trap and trace devices–as one whole. As the authorities of one program got shut down by exposure or court rulings or internal dissent, it would migrate to another program. That might explain, for example, why Senators who opposed fishing expeditions in 2005 would come to embrace broadened use of Section 215 orders in 2009.

I guessed, for example, that the government was bulk collecting data and mining it to identify targets for surveillance.

We probably know what this is: the bulk collection and data mining of information to select targets under FISA. Feingold introduced a bajillion amendments that would have made data mining impossible, and each time Mike McConnell and Michael Mukasey would invent reasons why Feingold’s amendments would have dire consequences if they passed. And the legal information Feingold refers to is probably the way in which the Administration used EO 12333 and redacted procedures to authorize the use of data mining to select FISA targets.

Sadly, I allowed myself to get distracted by my parallel attempts to understand how the government used Section 215 to obtain TATP precursors. As more and more people confirmed that, I stopped pursuing the PATRIOT Act ties to 702 as aggressively.

2010

Throwing our PATRIOT at Assange

This may be controversial, given everything that has transpired since, but it is often forgotten what measures the US used against Wikileaks in 2010. The funding boycott is one thing (which is what led Wikileaks to embrace Bitcoin, which means it is now in great financial shape). But there’s a lot of reason to believe that the government used PATRIOT authorities to target not just Wikileaks, but its supporters and readers; this was one hint of that in real time.

2011

The March–and April or May–2004 Changes to the Illegal Wiretap Program

When the first iteration of the May 2004 Jack Goldsmith OLC memo first got released, I identified that there were multiple changes made and unpacked what some of them were. The observation that Goldsmith newly limited Stellar Wind to terrorist conversations is one another reporter would claim credit for “scooping” years later (and get the change wrong in the process). We’re now seeing the scope of targeting morph again, to include a range of domestic crimes.

Using Domestic Surveillance to Get Rapists to Spy for America

Something that is still not widely known about 702 and our other dragnets is how they are used to identify potential informants. This post, in which I note Ted Olson’s 2002 defense of using (traditional) FISA to find rapists whom FBI can then coerce to cooperate in investigations was the beginning of my focus on the topic.

2012

FISA Amendments Act: “Targeting” and “Querying” and “Searching” Are Different Things

During the 2012 702 reauthorization fight, Ron Wyden and Mark Udall tried to stop back door searches. They didn’t succeed, but their efforts to do so revealed that the government was doing so. Even back in 2012, Dianne Feinstein was using the same strategy the NSA currently uses — repeating the word “target” over and over — to deny the impact on Americans.

Sheldon Whitehouse Confirms FISA Amendments Act Permits Unwarranted Access to US Person Content

As part of the 2012 702 reauthorization, Sheldon Whitehouse said that requiring warrants to access the US person content collected incidentally would “kill the program.” I took that as confirmation of what Wyden was saying: the government was doing what we now call back door searches.

2013

20 Questions: Mike Rogers’ Vaunted Section 215 Briefings

After the Snowden leaks started, I spent a lot of time tracking bogus claims about oversight. After having pointed out that, contrary to Administration claims, Congress did not have the opportunity to be briefed on the phone dragnet before reauthorizing the PATRIOT Act in 2011, I then noted that in one of the only briefings available to non-HPSCI House members, FBI had lied by saying there had been no abuses of 215.

John Bates’ TWO Wiretapping Warnings: Why the Government Took Its Internet Dragnet Collection Overseas

Among the many posts I wrote on released FISA orders, this is among the most important (and least widely understood). It was a first glimpse into what now clearly appears to be 7 years of FISA violation by the PRTT Internet dragnet. It explains why they government moved much of that dragnet to SPCMA collection. And it laid out how John Bates used FISA clause 1809(a)(2) to force the government to destroy improperly collected data.

Federated Queries and EO 12333 FISC Workaround

In neither NSA nor FBI do the authorities work in isolation. That means you can conduct a query on federated databases and obtain redundant results in which the same data point might be obtained via two different authorities. For example, a call between Michigan and Yemen might be collected via bulk collection off a switch in or near Yemen (or any of the switches between there and the US), as well as in upstream collection from a switch entering the US (and all that’s assuming the American is not targeted). The NSA uses such redundancy to apply the optimal authority to a data point. With metadata, for example, it trained analysts to use SPCMA rather than PATRIOT authorities because they could disseminate it more easily and for more purposes. With content, NSA appears to default to PRISM where available, probably to bury the far more creative collection under EO 12333 for the same data, and also because that data comes in structured form.

Also not widely understood: the NSA can query across metadata types, returning both Internet and phone connection in the same query (which is probably all the more important now given how mobile phones collapse the distinction between telephony and Internet).

This post described how this worked with the metadata dragnets.

The Purpose(s) of the Dragnet, Revisited

The government likes to pretend it uses its dragnet only to find terrorists. But it does far more, as this analysis of some court filings lays out.

2014

The Corporate Store: Where NSA Goes to Shop Your Content and Your Lifestyle

There’s something poorly understood about the metadata dragnets NSA conducts. The contact-chaining isn’t the point. Rather, the contact-chaining serves as a kind of nomination process that puts individuals’ selectors, indefinitely, into the “corporate store,” where your identity can start attracting other related datapoints like a magnet. The contact-chaining is just a way of identifying which people are sufficiently interesting to submit them to that constant, ongoing data collection.

SPCMA: The Other NSA Dragnet Sucking In Americans

I’ve done a lot of work on SPCMA — the authorization that, starting in 2008, permitted the NSA to contact chain on and through Americans with EO 12333 data, which was one key building block to restoring access to EO 12333 analysis on Americans that had been partly ended by the hospital confrontation, and which is where much of the metadata analysis affecting Americans has long happened. This was my first comprehensive post on it.

The August 20, 2008 Correlations Opinion

A big part of both FBI and NSA’s surveillance involves correlating identities — basically, tracking all the known identities a person uses on telephony and the Internet (and financially, though we see fewer details of that), so as to be able to pull up all activities in one profile (what Bill Binney once called “dossiers”). It turns out the FISC opinion authorizing such correlations is among the documents the government still refuses to release under FOIA. Even as I was writing the post Snowden was explaining how it works with XKeyscore.

A Yahoo! Lesson for USA Freedom Act: Mission Creep

This is another post I refer back to constantly. It shows that, between the time Yahoo first discussed the kinds of information they’d have to hand over under PRISM in August 2007 and the time they got directives during their challenge, the kinds of information they were asked for expanded into all four of its business areas. This is concrete proof that it’s not just emails that Yahoo and other PRISM providers turn over — it’s also things like searches, location data, stored documents, photos, and cookies.

FISCR Used an Outdated Version of EO 12333 to Rule Protect America Act Legal

Confession: I have an entire chapter of the start of a book on the Yahoo challenge to PRISM. That’s because so much about it embodied the kind of dodgy practices the government has, at the most important times, used with the FISA Court. In this post, I showed that the documents that the government provided the FISCR hid the fact that the then-current versions of the documents had recently been modified. Using the active documents would have shown that Yahoo’s key argument — that the government could change the rules protecting Americans anytime, in secret — was correct.

2015

Is CISA the Upstream Cyber Certificate NSA Wanted But Didn’t Really Get?

Among the posts I wrote on CISA, I noted that because the main upstream 702 providers have a lot of federal business, they’ll “voluntarily” scan on any known cybersecurity signatures as part of protecting the federal government. Effectively, it gives the government the certificate it wanted, but without any of the FISA oversight or sharing restrictions. The government has repeatedly moved collection to new authorities when FISC proved too watchful of its practices.

The FISA Court’s Uncelebrated Good Points

Many civil libertarians are very critical of the FISC. Not me. In this post I point out that it has policed minimization procedures, conducted real First Amendment reviews, taken notice of magistrate decisions and, in some cases, adopted the highest common denominator, and limited dissemination.

How the Government Uses Location Data from Mobile Apps

Following up on a Ron Wyden breadcrumb, I figured out that the government — under both FISA and criminal law — obtain location data from mobile apps. While the government still has to adhere to the collection standard in any given jurisdiction, obtaining the data gives the government enhanced location data tied to social media, which can implicate associates of targets as well as the target himself.

The NSA (Said It) Ate Its Illegal Domestic Content Homework before Having to Turn It in to John Bates

I’m close to being able to show that even after John Bates reauthorized the Internet metadata dragnet in 2010, it remained out of compliance (meaning NSA was always violating FISA in obtaining Internet metadata from 2002 to 2011, with a brief lapse). That case was significantly bolstered when it became clear NSA hastily replaced the Internet dragnet with obtaining metadata from upstream collection after the October 2011 upstream opinion. NSA hid the evidence of problems on intake from its IG.

FBI Asks for at Least Eight Correlations with a Single NSL

As part of my ongoing effort to catalog the collection and impact of correlations, I showed that the NSL Nick Merrill started fighting in 2004 asked for eight different kinds of correlations before even asking for location data. Ultimately, it’s these correlations as much as any specific call records that the government appears to be obtaining with NSLs.

2016

What We Know about the Section 215 Phone Dragnet and Location Data

During the lead-up to the USA Freedom Debate, the government leaked stories about receiving a fraction of US phone records, reportedly because of location concerns. The leaks were ridiculously misleading, in part because they ignored that the US got redundant collection of many of exactly the same calls they were looking for from EO 12333 collection. Yet in spite of these leaks, the few figured out that the need to be able to force Verizon and other cell carriers to strip location data was a far bigger reason to pass USAF than anything Snowden had done. This post laid out what was known about location data and the phone dragnet.

While It Is Reauthorizing FISA Amendments Act, Congress Should Reform Section 704

When Congress passed FISA Amendments Act, it made a show of providing protections to Americans overseas. One authority, Section 703, was for spying on people overseas with help of US providers, and another was for spying on Americans overseas without that help. By May 2016, I had spent some time laying out that only the second, which has less FISC oversight, was used. And I was seeing problems with its use in reporting. So I suggested maybe Congress should look into that?

It turns out that at precisely that moment, NSA was wildly scrambling to get a hold on its 704 collection, having had an IG report earlier in the year showing they couldn’t audit it, find it all, or keep it within legal boundaries. This would be the source of the delay in the 702 reauthorization in 2016, which led to the prohibition on about searches.

The Yahoo Scan: On Facilities and FISA

The discussion last year of a scan the government asked Yahoo to do of all of its users was muddled because so few people, even within the privacy community, understand how broadly the NSA has interpreted the term “selector” or “facility” that it can target for collection. The confusion remains to this day, as some in the privacy community claim HPSCI’s use of facility based language in its 702 reauthorization bill reflects new practice. This post attempts to explain what we knew about the terms in 2016 (though the various 702 reauthorization bills have offered some new clarity about the distinctions between the language the government uses).

2017

Ron Wyden’s History of Bogus Excuses for Not Counting 702 US Person Collection

Ron Wyden has been asking for a count of how many Americans get swept up under 702 for years. The IC has been inventing bogus explanations for why they can’t do that for years. This post chronicles that process and explains why the debate is so important.

The Kelihos Pen Register: Codifying an Expansive Definition of DRAS?

When DOJ used its new Rule 41 hacking warrant against the Kelihos botnet this year, most of the attention focused on that first-known usage. But I was at least as interested in the accompanying Pen Register order, which I believe may serve to codify an expansion of the dialing, routing, addressing, and signaling information the government can obtain with a PRTT. A similar codification of an expansion exists in the HJC and Lee-Leahy bills reauthorizing 702.

The Problems with Rosemary Collyer’s Shitty Upstream 702 Opinion

The title speaks for itself. I don’t even consider Rosemary Collyer’s 2017 approval of 702 certificates her worst FISA opinion ever. But it is part of the reason why I consider her the worst FISC judge.

It Is False that Downstream 702 Collection Consists Only of To and From Communications

I pointed out a number of things not raised in a panel on 702, not least that the authorization of EO 12333 sharing this year probably replaces some of the “about” collection function. Most of all, though, I reminded that in spite of what often gets claimed, PRISM is far more than just communications to and from a target.

UNITEDRAKE and Hacking under FISA Orders

A document leaked by Shadow Brokers reveals a bit about how NSA uses hacking on FISA targets. Perhaps most alarmingly, the same tools that conduct such hacks can be used to impersonate a user. While that might be very useful for collection purposes, it also invites very serious abuse that might create a really nasty poisonous tree.

A Better Example of Article III FISA Oversight: Reaz Qadir Khan

In response to Glenn Gerstell’s claims that Article III courts have exercised oversight by approving FISA practices (though the reality on back door searches is not so cut and dry), I point to the case of Reaz Qadir Khan where, as Michael Mosman (who happens to serve on FISC) moved towards providing a CIPA review for surveillance techniques, Khan got a plea deal.

The NSA’s 5-Page Entirely Redacted Definition of Metadata

In 2010, John Bates redefined metadata. That five page entirely redacted definition became codified in 2011. Yet even as Congress moves to reauthorize 702, we don’t know what’s included in that definition (note: location would be included).

FISA and the Space-Time Continuum

This post talks about how NSA uses its various authorities to get around geographical and time restrictions on its spying.

The Senate Intelligence Committee 702 Bill Is a Domestic Spying Bill

This is one of the most important posts on FISA I’ve ever written. It explains how in 2014, to close an intelligence gap, the NSA got an exception to the rule it has to detask from a facility as soon as it identifies Americans using the facility. The government uses it to collect on Tor and, probably VPN, data. Because the government can keep entirely domestic communications that the DIRNSA has deemed evidence of a crime, the exception means that 702 has become a domestic spying authority for use with a broad range of crimes, not to mention anything the Attorney General deems a threat to national security.

“Hype:” How FBI Decided Searching 702 Content Was the Least Intrusive Means

In a response to a rare good faith defense of FBI’s back door searches, I pointed out that the FBI is obliged to consider the least intrusive means of investigation. Yet, even while it admits that accessing content like that obtained via 702 is extremely intrusive, it nevertheless uses the technique routinely at the assessment level.

Other Key Posts Threads

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

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

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

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

10 Years of emptywheel: Jim’s Dimestore

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

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

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

The Reclassification of Details on the 2011 Upstream Fight

As I noted in this post, Charlie Savage recently liberated more details on the resolution of the 2011 upstream 702 problems.

With respect to some details, however, the newly liberated documents represent a reclassification of details that were made public when the October 3, 2011 John Bates opinion was released in 2013. The government has provided entirely classified documents that are probably the early exchanges on the problem, including language that was unclassified in Bates’ 2011 opinion. In addition, the government has redacted dates that were also made public in Bates’ opinion.

I laid out both the timeline and the language cited from those early exchanges in this post. As I noted in this post, that timeline makes it clear that at the same time John Bates was asking NSA to assess the impact of upstream collection on US persons by sampling real NSA collection, Ron Wyden and Mark Udall were asking for the same thing.

I’ve laid out the combined timeline below. What it — and the newly released documents — show is just how brazen James Clapper’s refusal to provide real numbers to Wyden and Udall was. Not only did their request exactly coincide with the government’s request for more time so they could get more data — the count of US persons — to Bates (though Clapper’s record quick response delivered his refusal before Bates got his first real numbers). But the 48-hour turnaround on analysis of SCTs in September shows how quickly NSA can get rough estimates of US person data when they need to.

There are more alarming things the reclassification of these details suggests, which I’ll address in a follow-up. But for now, know that in 2011, the Intelligence Community refused to treat Congress with the same respect due a co-equal branch of government as it was treating Bates (and that’s the deep background to James Clapper’s 2013 “not wittingly” response).

April 2011, unknown date: Wyden and Udall ask for estimate of US person collection verbally

 

April 19, 2011: Notice of two upstream overcollection violations [see PDF 144]

April 20, 2011: One recertification submission

April 22, 2011: Two more recertification submissions

May 2, 2011: Clarification letter first admits MCT problem

May 5, 2011: Government asks for extension until July 22, 2011

May 9, 2011: Court grants extension, issues briefing order

June 1, 2011: Government submits response to briefing order

June 17, 2011: Court presents follow-up questions

June 28, 2011: Government response to follow-up questions

July 8, 2011: Court (John Bates) meets with senior DOJ people, tells them he has serious concerns

July 14, 2011: Government files another extension; court grants extension to September 20, 2011

July 14, 2011: Wyden and Udall send letter to James Clapper asking (among other things):

  • In a December 2007 Statement of Administration Policy on the FISA Amendments Act, the Office of Management and Budget said that it would “likely be impossible” to count the number of people located in the United States whose communications were reviewed by the government pursuant to the FISA Amendments Act. Is this still the case? If so, is it possible to estimate this number with any accuracy?
  • Have any apparently law-abiding Americans had their communications collected by the government pursuant to the FISA Amendments Act?

July 26, 2011: Clapper responds to Wyden and Udall, refusing to give numbers or describe compliance incidents

August 16, 2011: Government files supplement, presenting results of “manual review of statistically representative sample” for 6 months

August 22, 2011: Meeting between Court and government

August 30, 2011: Government makes another submission

September 7, 2011: Court has hearing

September 9, 2011: Government files additional submission, submitting results of analysis of SCTs completed in just 48 hours

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

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

James Clapper Updated Rules on Congressional Notice the Day before He Retired

On his very last full day in office on January 19, in the middle of an investigation that included then Senator Jeff Sessions’ discussions with the Russian Ambassador, James Clapper updated the rules on dissemination of the identities of members or staffers of Congress in intelligence reports.

One minor change to the previous procedures involved adding the Director of National Intelligence to the list of people whose requests to identify a MoC’s identity in a report don’t have to go through the same approval process as other people (which, in any case, involves approval by the DNI).

Here’s what that provision looked like in 2013.

As I suggested after Clapper most recently testified, his answers about unmasking the identity of a member of Congress or a Trump associate logically suggest he may have unmasked the identity of Jeff Sessions (though this process would involve someone else sharing the name of a member of Congress with Clapper, not Clapper unmasking the name).

LINDSEY GRAHAM: You made a request for unmasking on a Trump associate and maybe a member of Congress? Is that right, Mr. Clapper?

CLAPPER: Yes.

As I noted, the DNI is the person who has to approve the most sensitive requests. So by adding himself, Clapper only closed a loop, giving himself (or his successor) permission to ask for and receive information he himself had the authority to ask and receive in any case.

But I find the timing of the change interesting.

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

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

James Clapper: Unmasking And/Or Jeff Sessions?

I’m traveling so I’ll have to lay out my thoughts about the Comey firing later.

But for the moment I want to point to a detail in Monday’s hearing that deserves more attention now.

Early in the hearing, Chuck Grassley asked both Sally Yates and James Clapper if they have ever unmasked a Trump associate or member of Congress. Yates said no, but Clapper revealed he had unmasked someone, but couldn’t say more.

GRASSLEY: OK. I want to discuss unmasking.

Mr. Clapper and Ms. Yates, did either of you ever request the unmasking of Mr. Trump, his associates or any member of Congress?

CLAPPER: Yes, in one case I did that I can specifically recall, but I can’t discuss it any further than that.

GRASSLEY: You can’t, so if I ask you for details, you said you can’t discuss that, is that what you said?

CLAPPER: Not — not here.

Grassley returned to the issue for clarification later on. Clapper said he had asked to have the identity of both a member of Congress and a Trump associate unmasked. But then he said he had only asked on one occasion.

GRASSLEY: Mr. Clapper, you said yes when I asked you if you ever unmasked a Trump associate or a member of Congress. But I forgot to ask, which was it? Was it a Trump associate, a member of Congress, or both?

CLAPPER: Over my time as DNI, I think the answer was on rare occasion, both. And, again, Senator, just to make the point here, my focus was on the foreign target and at the foreign target’s behavior in relation to the U.S. person.

GRASSLEY: OK. How many instances were there, or was there just one?

CLAPPER: I can only recall one.

Finally, Lindsey Graham returned to the issue at the close of the hearing. Clapper confirmed he had made a request to unmask a Trump associate and a member of Congress.

You made a request for unmasking on a Trump associate and maybe a member of Congress? Is that right, Mr. Clapper?

CLAPPER: Yes.

Obviously, there’s plenty of room for confusion in these exchanges, and Clapper has a history of sowing confusion in Congressional testimony.

But if it is true that he has only unmasked one person but that he has unmasked both a Trump associate and a member of Congress, it would suggest he unmasked the identity of a member of Congress who is a Trump associate.

If that’s right, there are several possibilities for who it could be: transition official Devin Nunes, national security advisor Richard Burr, and national security official Jeff Sessions.

But the most likely is Sessions, because we know he was talking to Sergey Kislyak and the intelligence community has pulled their collection on Kislyak.

Even if that’s the case, it’s unsurprising Sessions’ communications with Kislyak have been reviewed and unmasked.

Still, it is a data point from Monday’s hearing that makes Sessions’ role in the firing of Jim Comey worth noting.

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

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

The Curious Timing of Flynn Events and EO 13769

The crew here has been seasonally busy; there are graduations, returns from college, business and vacation travel, many other demands keeping us away from the keyboard. Bear with us.

That’s not to say we’re not stewing about — well, everything. EVERYTHING. Pick a subject and it’s probably on fire if it’s not smoldering. Touch it and it may burst into flame, kind of like James Comey’s job.

Yesterday’s Senate Judiciary Committee hearing with testimony from Sally Yates and James Clapper is one such topic utterly ablaze. How to even start with what went wrong — like Ted ‘Zodiac Killer’ Cruz and his sidling up to ‘But her emails!’. Or John Kennedy’s [string a bunch of expletives together and insert here] questions which did nothing to further any investigation.

I’m glad Sally Yates laid one across Cruz on the Immigration and Nationality Act of 1965 (INA); he deserved it for his particularly egregious mansplaining.

As you can see from their tweets, I know my fellow contributors have much they wish they could post about the hearing. I know after the closing gavel I had many more questions, not fewer.

Like timing. Timing seemed so inter-related on seemingly disparate issues.

What about the timing of Yates’ discussion with White House Counsel Don McGahn about Lt. Gen. Michael Flynn (ret.) and the timing of the Muslim travel ban, Executive Order 13769?

10-NOV-2017 — First warning about Flynn to Trump by Obama during post-election meeting.

18-NOV-2017 — Flynn named National Security Adviser by Trump.

25-DEC-2017 — Flynn allegedly sends text messages to Russian ambassador Sergei Kislyak including holiday greetings.

29-DEC-2017 — New sanctions announced by Obama, including eviction of 35 Russians (including family members) from two compounds.

29-DEC-2017 — Michael Flynn talks with Kislyak more than once on the same day.

30-DEC-2017 — Trump tweeted positively about Russian president Vladimir Putin’s refusal to retaliate against the new sanctions.

12-JAN-2017 — The Washington Post reported on the Flynn-Kislyak conversations; source cited is “a senior U.S. government official.”

15-JAN-2017 — VP Mike Pence says in a TV interview that he had talked with Flynn about contact with Kislyak:

JOHN DICKERSON: Let me ask you about it was reported by David Ignatius that the incoming national security advisor Michael Flynn was in touch with the Russian ambassador on the day the United States government announced sanctions for Russian interference with the election. Did that contact help with that Russian kind of moderate response to it? That there was no counter-reaction from Russia. Did the Flynn conversation help pave the way for that sort of more temperate Russian response?

MIKE PENCE: I talked to General Flynn about that conversation and actually was initiated on Christmas Day he had sent a text to the Russian ambassador to express not only Christmas wishes but sympathy for the loss of life in the airplane crash that took place. It was strictly coincidental that they had a conversation. They did not discuss anything having to do with the United States’ decision to expel diplomats or impose censure against Russia.

JOHN DICKERSON: So did they ever have a conversation about sanctions ever on those days or any other day?

MIKE PENCE: They did not have a discussion contemporaneous with U.S. actions on—

JOHN DICKERSON: But what about after—

MIKE PENCE: —my conversation with General Flynn. Well, look. General Flynn has been in touch with diplomatic leaders, security leaders in some 30 countries. That’s exactly what the incoming national security advisor—

JOHN DICKERSON: Absolutely.

MIKE PENCE: —should do. But what I can confirm, having spoken to him about it, is that those conversations that happened to occur around the time that the United States took action to expel diplomats had nothing whatsoever to do with those sanctions.

JOHN DICKERSON: But that still leaves open the possibility that there might have been other conversations about the sanctions.

MIKE PENCE: I don’t believe there were more conversations.

20-JAN-2017 — Inauguration Day

21-JAN-2017 — Flynn has a follow-up call with Kislyak with regard to a future phone call between Trump and Putin.

23-JAN-2017 — Answers to questions during a press briefing with White House Press Secretary Sean Spicer didn’t match what Pence said in the 15-JAN interview. Spicer said, “There’s been one call. I talked to Gen. Flynn about this again last night. One call, talked about four subjects. … During the transition, I asked Gen. Flynn that – whether or not there were any other conversations beyond the ambassador and he said no.”(Come on, Spicey. Come the fuck on. Pure sloppiness; this isn’t the time for disinformation.)

24-JAN-2017 — Flynn is interviewed by the FBI and without a lawyer present. Yates informed McGahn about Flynn’s interview.

25-JAN-2017 — Yates reviews Flynn’s interview.

25-JAN-2017 — Draft of the travel ban EO leaked and published by WaPo

A provision about safe zones in Syria appears in this draft. It will not appear in the final EO.

26-JAN-2017 — Yates called McGahn that morning and asked for an in-person meeting about a sensitive topic she could not discuss on the phone. They met later that afternoon at McGahn’s office:

…We began our meeting telling him that there had been press accounts of statements from the vice president and others that related conduct that Mr. Flynn had been involved in that we knew not to be the truth.”

A senior member of the DOJ’s National Security Division accompanied Yates. Yates explained why Flynn was compromised and how his actions set Pence up to make unknowingly false statements to the public.

Spicer has said McGahn immediately notified and briefed Trump after meeting with Yates.

27-JAN-2017 — McGahn called Yates and asked for a second in-person meeting. Yates met him at his office. During their conversation, McGahn asked, “Why does it matter to DOJ if one White House official lies to another?” Yates re-reviews the FBI’s concerns shared the previous day. (I want to ask if McGahn got his JD out of a box of Cracker Jacks.) McGahn asked,

“And there was a request made by Mr. McGahn, in the second meeting as to whether or not they would be able to look at the underlying evidence that we had that we had described for him of General Flynn’s conduct.” (Bold mine; who is ‘they’?)

Yates indicated she would work with FBI team and “get back with him on Monday morning.”

27-JAN-2017 — Travel ban EO signed and distributed. Rex Tillerson has not yet appeared before the Senate in a confirmation hearing. Defense Department’s James Mattis did not see the EO until morning of January 27; the EO is signed later in the day after Mattis was sworn in just before 3:00 p.m. Homeland Security Secretary John Kelly said he saw final EO draft not long before it was signed. Office of Legal Counsel issued a determination about the EO that day, “the proposed order is approved with respect to form and legality.” According to Yates’ SJC testimony the OLC’s determination goes to the form and not the content of the EO.

28-JAN-2017 — Federal Judge Ann Donnelly issued a stay late Saturday on deportations of persons with valid visas.

29-JAN-2017 — Though not yet confirmed as Secretary of State, Tillerson involved in cabinet-level meetings in pre-dawn hours regarding the travel ban.

30-JAN-2017 — Yates called McGahn that morning and told him he could go to FBI to look at “underlying evidence.” McGahn does not reply until the afternoon. Yates didn’t know whether McGahn looked at evidence because “because that was my last day with DOJ.” Yates ordered DOJ not to defend the EO in court

30-JAN-2017 — Yates is fired by the White House Monday night. White House statement said,

“The acting Attorney General, Sally Yates, has betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States … This order was approved as to form and legality by the Department of Justice Office of Legal Counsel. … Ms. Yates is an Obama Administration appointee who is weak on borders and very weak on illegal immigration. It is time to get serious about protecting our country. Calling for tougher vetting for individuals travelling from seven dangerous places is not extreme. It is reasonable and necessary to protect our country.”

08-FEB-2017 — WaPo reports Flynn denied twice discussing Russian sanctions with Kislyak.

09-FEB-2017 — Allegedly, Pence learned this day Flynn was not straight with him about his interactions with Kislyak. WaPo reported Flynn had discussed sanctions with Kislyak prior to the inauguration.

10-FEB-2017 — ABC News reported Flynn wasn’t certain he talked about the sanctions with Kislyak. Pence spoke with Flynn twice this day.

12-FEB-2017 — Stephen Miller dodges questions about Flynn’s status during Sunday morning TV interviews.

13-FEB-2017 — Flynn resigns, 18 days after Yates raised questions with the White House about his vulnerability to compromise.

Yates’ directive not to enforce the illegal travel ban EO is the prima facie reason why she was fired a week after the EO was pushed. But was it really the travel ban or the fact she had not only warned the White House about Flynn’s compromised status but the implication there might be more at stake?

The rushed timing of the EO — pushed out on a Friday night after business hours — and its inception generate more questions about the travel ban.

Who really wrote the travel ban? Some reports say the ‘major architects’ were Stephen Miller and Steve Bannon, neither of whom have law degrees or any experience in legal profession. Wikipedia entry for Bannon indicates he has a master’s in national security studies from Georgetown, but there’s no indication about the date this was conferred and it’s still not a law degree. Miller has a BA from Duke and a bunch of cred from writing conservative stuff, much of it with a white nationalist bent. (Yeah, stuff, because none of it provided adequate background to write effective executive orders.)

There were reports a week after the first travel ban EO was issued which indicated Congressional aides actually wrote the executive order — aides from Rep. Bob Goodlatte’s office.

Who were those aides?

Why Goodlatte’s aides? Was it because Goodlatte is the Chairman of the House Judiciary Committee?

Was it because of Goodlatte’s immigration bills circa 2013:

H.R. 2278, the “Strengthen and Fortify Enforcement Act” (The SAFE Act)
H.R. 1773, the “Agricultural Guestworker Act”
H.R. 1772, the “Legal Workforce Act”
H.R. 2131, the “SKILLS Visa Act”

In other words, did the aides who wrote those bills also assist with and/or write the EO?

If these aides helped the ‘major architects’, why did the travel ban EO look so clearly illegal?

Did these aides ever refer the ‘major architects’ to the Office of Legal Counsel for assistance with the EO’s wording?

Did media try to interview the aides in question? If not, why? If not permitted to do so, why?

Did those aides sign a non-disclosure agreement with the White House? (Why the hell are there NDAs for ANY government employee anyhow, especially those with security clearance of any level? This is OUR government, not the Trump holding company.) Did the aides limit their work to transition team support, or were they working on the EO post-inauguration? Did they take vacation time to do the work? Or were they performing work for the White House on Congress’ dime?

In spite of his iffy-sounding support for their work, did Goodlatte kick those aides in the ass for moonlighting while puncturing the separation between the Executive Branch and the Legislative Branch, making it appear (if tenuously) there was a degree of concurrence between the two branches?

Did Michael Flynn talk about the EO with these aides?

And was Flynn one of the ‘major architects’ of the travel ban EO along with Miller and Bannon as reported in some outlets?

Assuming Flynn was a co-architect/co-author of the EO, was the EO pushed through in a hurry to effect Flynn’s work before he might be terminated and/or prosecuted?

Was the execution of a travel ban EO part of a quid pro quo with a foreign entity?
Is this the reason why Trump reduced the role of chairman of the Joint Chiefs of Staff and the director of national intelligence to “an as-needed basis” on National Security Council — to reduce potential interference by seasoned security professionals who might stop the EO?

Was Miller’s role in the creation of the travel ban EO less about any experience he has but instead related to his former work during 113th Congress with the Gang of Eight on immigration reform? (We come full circle – see Goodlatte’s bills above.)

How might this travel ban EO — banning Muslims from specific countries — help a foreign entity?

Or was the Muslim travel ban EO simply launched early — before the administration even had a Secretary of State, before its content was reasonably defensible — to distract Yates and the DOJ and derail further investigation into Flynn’s compromised status?

I’m sure if I spend any more time re-reading the SJC’s hearing transcript I’ll come up with even more questions. But as events around Flynn and the travel ban EO unfolded as if knit together, I can’t help wondering if they really were of a piece.

How odd that the first thing the first SJC non-chair member did, before asking witnesses any questions, was hand out a timeline of events to all the participants.

And how convenient FBI Director James Comey screwed up his last testimony before congress enough that his firing this evening by the White House would look entirely justified — immediately removing him not only from the next FBI flight from Los Angeles to DC but from any further investigation into Michael Flynn.

What timing.

Blogger since 2002, political activist since 2003, geek since birth. Opinions informed by mixed-race, multi-ethnic, cis-female condition, further shaped by kind friends of all persuasions. Sci-tech frenemy, wannabe artist, decent cook, determined author, successful troublemaker. Mother of invention and two excessively smart-assed young adult kids. Attended School of Hard Knocks; Rather Unfortunate Smallish Private Business School in Midwest; Affordable Mid-State Community College w/evening classes. Self-employed at Tiny Consulting Business; previously at Large-ish Chemical Company with HQ in Midwest in multiple marginalizing corporate drone roles, and at Rather Big IT Service Provider as a project manager, preceded by a motley assortment of gigs before the gig economy was a thing. Blogging experience includes a personal blog at the original blogs.salon.com, managing editor for a state-based news site, and a stint at Firedoglake before landing here at emptywheel as technology’s less-virginal-but-still-accursed Cassandra.

The Virgin Birth of the Most Inflammatory Trump Dossier Claims

In a response to Alexsej Gubarev’s British libel lawsuit, Christopher Steele has submitted a defense making certain claims about the dossier on Trump he reportedly did for Trump’s opponents. (Washington Times published the filing along with this story.) The defense provides some limited information on the dossier, while remaining entirely silent about known details.

The defense provides further explanation of how Steele came to share the dossier with John McCain. Sir Andrew Wood is an Associate of Steele’s firm, which is how he knew about the dossier. At an undated meeting between Wood and John McCain and his associate David Kramer, Wood told the Americans about the dossier. That piqued McCain’s interest, so Kramer met with Steele in Surrey on November 28. After Kramer returned to DC, he arranged to get a hard copy of the dossier for McCain, and requested that “any further intelligence gathered by the Defendants about alleged Russian interference in the US Presidential election” be provided to him on behalf of McCain.

Steele denies he shared the dossier with journalists

Of critical importance, to substantiate a claim that he wasn’t spreading the document all over creation, Steele states,

The Defendants did not, however, provide any of the pre-election memoranda to media organizations or journalists. Nor did they authorize anyone to do so. Nor did they provide the confidential December memorandum to media organizations or journalists. Nor did they authorize anyone to do so.

[snip]

[Steele] gave off the record briefings to a small number of journalists about the pre-election memoranda in late summer/autumn 2016.

I find the claim rather suspicious.

The changing (BBC) story about how it got (shown) the Steele dossier

Steele’s claim that he wasn’t sharing the dossier itself is dubious for several reasons. For example, the defense makes no mention of Steele sharing the dossier with the FBI, in spite of multiple reports of him doing so.

More damning, one of the reporters with whom the dossier was shared before the election, BBC’s Paul Wood, has changed a published story about receiving the dossier on two occasions. The original story appeared like this.

Sometime between the original publication and 14:06 GMT, the paragraph claiming the American oppo research company, Fusion, disseminated the document was removed from the story.

Then, by 15:32 GMT — roughly 20 minutes after I did a post noting the first change — that passage was again changed, this time to suggest the pages were shown, but not given, to journalists.

I’ve been told second-hand that actual pages were given, not shown, to at least one journalist, suggesting the middle story may be the accurate one. Moreover, the actual dossier would have had to have been shared for James Clapper’s claim that the dossier “was widely circulated … among the media, members of Congress and Congressional staff ” to be true.

Steele’s free report based off unsolicited intelligence

All that pertains to the dossier, generally, though. It’s actually irrelevant to the lawsuit, since Gubarev is suing over claims made in the last report, dated December 13 (see this post for why that date is important).

Here’s what Steele claims about that last report.

The Defendants continued to receive unsolicited intelligence on the matters covered by the pre-election memoranda after the US Presidential election and the conclusion of the assignment for Fusion.

After receiving some such intelligence [Steele] prepared the confidential December memorandum, … on his own initiative on or around 13 December 2016.

[snip]

Accordingly, [Steele] provided a copy of the December memorandum to:

a. A senior UK government national security official acting in his official capacity, on a confidential basis in hard copy form; and

b. Fusion, by enciphered email with an instruction to Fusion to provide a hard copy to Sen. McCain via Mr Kramer.

Nowhere in this defense does Steele specify when he gave McCain the dossier, aside from sometime after November 28. Presumably it was on or before December 9, when McCain reportedly handed the dossier over to the FBI (though McCain was a bit sketchier about when he got and handed on the dossier and — very significantly — doesn’t describe doing so twice).

Steele does confirm he also shared the dossier with “a senior UK government national security official,” which is another way the US intelligence community might have gotten the dossier they shared with Trump before BuzzFeed leaked it, contrary to their utterly ridiculous claims to have been the last to know of it.

In any case, the timeline suggests that, after sources started leaking aggressively about Putin affirmatively trying to elect Trump on December 9 (even as Obama called for a review of the intelligence), Steele all of a sudden got new intelligence (or, less plausibly, decided to write down the intelligence he had before he sent McCain the dossier but hadn’t written up).

Multiple reports have said that Steele was working for free in that period. Apparently, too, the sources that Steele had been paying up to this point decided they would provide unsolicited intelligence.

Did they get paid, either?

The virgin birth of the most inflammatory claims

And this is all very interesting because — as I have noted before — this last brief includes three far more inflammatory claims than Steele had ever provided before.

First, as part of the claims Gubarev is suing over, Steele claimed he had been told that in addition to using botnets to “transmit viruses, plant bugs, and steal data,” (which sounds nothing like what allegedly actually happened in the hack), XBT also conducted “altering operations,” a suggestion that Russia was tampering with data rather than just stealing it.

Second, whereas earlier reporting on Michael Cohen’s role had been more vague, this report described him discussing “deniable cash payments to the hackers who had worked in Europe under Kremlin direction against the CLINTON campaign.” That is, the dossier made far stronger claims that Trump’s team had discussed the hack itself, rather than making quid pro quo deals to alter US policy.

Finally, and most importantly, Steele’s “unsolicited” intelligence claimed that Trump had paid the hackers.

On payments, IVANOV’s associate said that the operatives involved had been paid by both TRUMP’s team and the Kremlin, though their orders and ultimate loyalty lay with IVANOV.

This is the report that wraps up all the allegations in a neat little bow, setting up the impeachment of Trump, and it came unsolicited after the spooks were upping the pressure on McCain.

Right wing outlets are (rightly) making much of the fact that Steele claimed the intelligence “needed to be analysed and further investigated/verified.” But I’m just as struck by the rather neat claim that by far the most inflammatory intelligence in the dossier came in the days after Democrats and the IC started ratcheting up pressure on Trump, and that it came unsolicited.

Update: This post has been updated for clarity.

Update: David Corn’s account of interacting with Steele is inconsistent on the point of whether he got the dossier. At first he says he was able to “review” the memos.

I also was able to review the memos the former spy had written, and I quoted a few key portions in my article.

But by the end of the paragraph, he says the reason he didn’t publish the dossier is not because he didn’t have it, but because it would have revealed some of Steele’s sources (as it eventually did).

I also didn’t post the memos, as BuzzFeed did this week, because the documents contained information about the former spy’s sources that could place these people at risk.

And technically, Corn’s description of how Steele directed him to treat the information is not “off the record” (though I can still remember the moment during the Scooter Libby trial when, after one after another top journalist provided a different definition of the term on the stand, journalists in the media room — Corn was there — acknowledged that everyone has a different definition of the term). In his article, Corn says he was simply told not to ID Steele’s nationality or MI6 but suggests he was permitted to quote the dossier, which he did.

For my story in October, I spoke with the former spy who wrote these memos, under the condition that I not name him or reveal his nationality or the spy service where he had worked for nearly two decades, mostly on Russian matters.

Update: It’s worth comparing Steele’s claims with those made in this Vanity Fair feature on the dossier. Of particular note, VF makes no mention of Wood being an associate of Steele’s firm, and instead suggests he may have been sent to the conference in question to contact McCain.

It was at some point in this busy weekend that Senator John McCain and David J. Kramer, a former State Department official whose bailiwick was Russia and who now toils at Arizona State University’s Washington-based McCain Institute for International Leadership, found themselves huddling with Sir Andrew Wood, a former British ambassador to Russia.

Sir Andrew, 77, had served in Moscow for five years starting in 1995, a no-holds-barred time when Putin was aggressively consolidating power. And in London Station, the M.I.6 puppeteer pulling all the clandestine strings was Christopher Steele. Sir Andrew knew Steele well and liked what he knew. And the former diplomat, who always had a few tough words to say about Putin, had heard the rumors about Steele’s memo.

Had Sir Andrew arrived in Halifax on his own covert mission? Was it just an accident that his conversation with Senator McCain happened to meander its way to the findings in Steele’s memos? Or are there no accidents in international intrigue? Sir Andrew offered no comment to Vanity Fair. He did, however, tell the Independent newspaper, “The issue of Donald Trump and Russia was very much in the news and it was natural to talk about it.

Note, this account would put Kramer in Surrey meeting Steele around December 5, which would mean Steele’s most inflammatory intelligence came in (“unsolicited,” he claimed) during a period of 11 days. It also says that Kramer brought the dossier back with him, undermining Steele’s claims that Fusion had been in the loop. VF also suggests there may have been more to the dossier Steele handed Kramer; Steele goes so far out of his way in his defense to claim he did no reports in November that I suspect he did report in November (perhaps directly for FBI?).

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

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

Ron Wyden’s History of Bogus Excuses for Not Counting 702 US Person Collection

The other day, Ron Wyden gave a long speech on FISA Section 702, purportedly explaining why he was voting against Dan Coats to be Director of National Intelligence. Wyden voted against Coats because his former colleague would not commit to providing a number of the number of Americans swept up under Section 702. Given that it’s always a good idea to read Wyden closely, I wanted to summarize what he said. I’ll look at his complaints in a separate post, but for now I wanted to focus on Wyden’s description of the bogus explanations James Clapper and others gave Wyden in his past efforts to get the number of Americans sucked up in 702. I summarized the known exchanges that occurred on this issue before Clapper’s famous “not wittingly” lie here.

In 2011, both Wyden and John Bates were asking for numbers at the same time — NSA refused both

The first request for a count is temporally significant(update: I think I just missed this one in the past). In April 2011, Wyden and Mark Udall asked for the number.

In April of 2011, our former colleague, Senator Mark Udall, and I then asked the Director of National Intelligence, James Clapper, for an estimate.

According to Clapper’s response, they sent a written letter with the request on July 14, 2011. The timing of this request is critically important because it means Wyden and Udall made the request during the period when NSA and FISA Judge John Bates were discussing the upstream violations (see this post for a timeline). As part of that long discussion Bates had NSA do analysis of how often it collected US person communications that were completely unrelated to a targeted one (MCTs). Once Bates understood the scope of the problem, he asked how many US person communications it collected that were a positive hit on the target that were the only communication collected (SCTs).

But the timing demands even closer scrutiny. On July 8, John Bates went to DOJ to express “serious concerns” — basically, warning them he might not be able to reauthorize upstream surveillance. On July 14 — the same day Wyden and Udall asked Clapper for this information — DOJ asked Bates for another extension to respond to his questions, promising more information. Clapper blew off Wyden and Udall’s request in what must be record time — on July 26. On August 16, DOJ provided their promised additional information to Bates. That ended up being a count of how many Americans were affected in MCTs.

That means Clapper claimed he couldn’t offer a number even as NSA was doing precisely the kind of count that Wyden and Udall wanted, albeit for just one kind of 702 collection. And, as Wyden suggested in his speech, Clapper’s answer was non-responsive, answering how many US persons had their communications reviewed, rather than how many had their communications collected.

In July of that year, the director wrote back and said, and I quote, it was not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under the authority of the Foreign Intelligence Surveillance Act. He suggested reviewing the classified number of disseminated intelligence reports containing a reference to a U.S. Person, but that is very different than the number of Americans whose communications have been collected in the first place. And that’s what this is all about.

Then, after the government presented the information on how many US persons were collected via MCTs to Bates in August, Bates asked them to go back and count SCTs.

NSA refused.

Both FISC and members of SSCI were asking for this information in the same time period, and NSA refused to provide the count.

Since NSA wouldn’t help him, Bates invented an estimate himself, calculating that some 46,000 entirely domestic communications were collected under upstream collection each year.

NSA’s manual review focused on examining the MCTs acquired through NSA’s upstream collection in order to assess whether any contained wholly domestic communications. Sept. 7, 2011 Hearing Tr. at 13-14. As a result, once NSA determined that a transaction contained a single discrete communication, no further analysis of that transaction was done. See Aug. 16 Submission at 3. After the Court expressed concern that this category of transactions might also contain wholly domestic communications, NSA conducted a further review. See Sept. 9 Submission at 4. NSA ultimately did not provide the Court with an estimate of the number of wholly domestic “about” SCTs that may be acquired through its upstream collection. Instead, NSA has concluded that “the probability of encountering wholly domestic communications in transactions that feature only a single, discrete communication should be smaller — and certainly no greater — than potentially encountering wholly domestic communications within MCTs.” Sept. 13 Submission at 2.

The Court understands this to mean that the percentage of wholly domestic communications within the universe of SCTs acquired through NSA’s upstream collection should not exceed the percentage of MCTs within its statistical sample. Since NSA found 10 MCTs with wholly domestic communications within the 5,081 MCTs reviewed, the relevant percentage is .197% (10/5,081). Aug. 16 Submission at 5.

NSA’s manual review found that approximately 90% of the 50,440 transactions in the same were SCTs. Id. at 3. Ninety percent of the approximately 13, 25 million total Internet transactions acquired by NSA through its upstream collection during the six-month period, works out to be approximately 11,925,000 transactions. Those 11,925,000 transactions would constitute the universe of SCTs acquired during the six-month period, and .197% of that universe would be approximately 23,000 wholly domestic SCTs. Thus, NSA may be acquiring as many as 46,000 wholly domestic “about” SCTs each year, in addition to the 2,000-10,000 MCTs referenced above.

Presumably, Wyden learned that NSA had been doing such a count in October, well after Clapper had given his first non-responsive answer.

The 2012 privacy violation claim

Wyden skips the next request he made, when on May 4, 2012, he and Udall asked the Intelligence Community Inspector General Charles McCullough for a number (I laid out the timing of the request in this post). When they also tried to include language in the FAA reauthorization requiring the IGs to come up with a number, SSCI refused, citing their outstanding request to McCullough. Of course, McCullough did not get back to the Senators with his refusal to do such a count until after the bill had passed out of committee. He responded by saying NSA IG George Ellard didn’t have the capacity for such a review, and besides, it would violate the privacy of Americans to find out how much NSA was violating their privacy.

I defer to his conclusion that obtaining such an estimate was beyond the capacity of his office and dedicating sufficient additional resources would likely impede the NSA’s mission. He further stated that his office and NSA leadership agreed that an IG review of the sort suggested would itself violate the privacy of U.S. persons.

Clapper blows off 12 Senators

In response, Wyden rounded up some privacy minded Senators to sign onto a letter asking for an estimate of the number. In this week’s speech, Wyden noted that he said he’d be willing to take an estimate. He didn’t remind his listeners that he and his friends also asked whether such an estimate had been done.

  • Have any entities made any estimates — even imprecise estimates — about how many US communications have been collected under section 702 authorities?

The answer to that question — at least with regards to upstream collection — was yes. NSA had estimated the MCTs and Bates, using their estimate, had made an even rougher estimate of the SCTs. But as I noted here, members of Congress relying on the purported disclosure to Congress about the upstream violations wouldn’t know that — or that the upstream violations involved entirely US person collection. As Wyden noted in his speech, Congress didn’t get this information before the reauthorized FAA.

We still got no answer. And section 702 was reauthorized without this necessary information.

Clapper’s least untruthful answer

Wyden also doesn’t address Clapper’s famous March 2013 lie. Since the exposure of the phone dragnet, most discussions have assumed Wyden was probing only about that program. But the question, as asked, absolutely applied to incidental collection.

Wyden: Does the NSA collect any type of data, at all, on millions, or hundreds of millions of Americans?

Clapper: No sir.

Wyden: It does not?

Clapper: There are cases where they could inadvertently, perhaps, uh, collect, but not wittingly.

Indeed, several of Clapper’s many excuses claim he was thinking of content when he responded. Even if he were, his first answer would still be yes: the NSA collects on so many millions of Americans incidentally that it refuses to count it. But Clapper’s “not wittingly” response is almost certainly not a goof, since he gave it after Wyden had provided a day’s warning the question would be asked and after two different John Bates’ opinions that made it clear that he would forgive the collection of content so long as NSA didn’t know about it, but once they knew about it, then it would become illegal. The not wittingly response reinforces my firm belief that the reason the government refuses to count this is because then a great deal of their Section 702 collection would be deemed illegal under those two FISC precedents.

Clapper’s blow-off becomes Dan Coats’ blow-off

Which is where Wyden brings us up to date, with both house of Congress asking for such a number and — after promises it would be forthcoming — not getting it.

So last year looking at the prospect of the law coming up, there was a renewed effort to find out how many law-abiding Americans are getting swept up in these searches of foreigners. In April 2016 a bipartisan letter from members of the House Judiciary Committee asked the Director of National Intelligence for a public estimate of the number of communications or transactions involving United States persons are collected under section 702 on an annual basis. This letter coming from the House Democrats and Republicans, again asked for a rough estimate. This bipartisan group suggested working with director clapper to determine the methodology to get this estimate.

In December there were hints in the news media that something might be forthcoming, but now we’re here with a new administration considering the nomination of the next head of the intelligence community who has said that reauthorizing section 702 is his top legislative priority and that there is no answer in sight to the question Democrats and Republicans have been asking for over six years. How many innocent law-abiding Americans are getting swept up in these searches under a law that targets foreigners overseas?

There’s one tiny tidbit he doesn’t mention here. Coats never answered that he wouldn’t provide an answer. Rather, he said he didn’t understand the technical difficulties behind providing one (not even after participating in the 2012 vote where this was discussed). In his confirmation hearing, Coats explained one reason why he couldn’t learn what the technical difficulties were before he was confirmed. When he resigned the Senate, his clearance had lapsed, and during his confirmation process, his new clearance was being processed. That meant that for this — and any other classified question that Coats might want to consider anew — he was unable to get information.

The Senate doesn’t seem to care about this serial obstruction, however. Coats was confirmed with an 85-12 vote, with the following Senators voting against confirmation.

Baldwin (D-WI)
Booker (D-NJ)
Duckworth (D-IL)
Gillibrand (D-NY)
Harris (D-CA)
Markey (D-MA)
Merkley (D-OR)
Paul (R-KY)
Sanders (I-VT)
Udall (D-NM)
Warren (D-MA)
Wyden (D-OR)

Given how hard the IC is trying to hide this, the actual exposure of US persons must be fairly significant. We’ll see whether Congress finds another way to force this information out of the IC.

Updated with more granular timing on the 2011 exchange.

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

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

How Trump’s Tantrum May Lead Trump Transition Official Devin Nunes to Delegitimize the Investigation

There are three developments in the wake of President Trump’s twitter rant claiming “Obama had my ‘wires tapped’ in Trump Tower” yesterday.

James Clapper denies a wiretap on Trump or his campaign

First, James Clapper went on Meet the Press and denied there was FISA-authorized wiretap activity mounted against Trump or his campaign.

CHUCK TODD: Let me start with the President’s tweets yesterday, this idea that maybe President Obama ordered an illegal wiretap of his offices. If something like that happened, would this be something you would be aware of?

JAMES CLAPPER: I would certainly hope so. I can’t say– obviously, I’m not, I can’t speak officially anymore. But I will say that, for the part of the national security apparatus that I oversaw as DNI, there was no such wiretap activity mounted against– the president elect at the time, or as a candidate, or against his campaign. I can’t speak for other Title Three authorized entities in the government or a state or local entity.

CHUCK TODD: Yeah, I was just going to say, if the F.B.I., for instance, had a FISA court order of some sort for a surveillance, would that be information you would know or not know?

JAMES CLAPPER: Yes.

CHUCK TODD: You would be told this?

JAMES CLAPPER: I would know that.

CHUCK TODD: If there was a FISA court order–

JAMES CLAPPER: Yes.

CHUCK TODD: –on something like this.

JAMES CLAPPER: Something like this, absolutely.

CHUCK TODD: And at this point, you can’t confirm or deny whether that exists?

JAMES CLAPPER: I can deny it.

CHUCK TODD: There is no FISA court order?

JAMES CLAPPER: Not– not to know my knowledge.

CHUCK TODD: Of anything at Trump Tower?

JAMES CLAPPER: No.

As always with Clapper, it pays to look at what he denies: “wiretap activity” of Trump or his campaign and a FISA court order “of anything at Trump Tower.” That still leaves open wiretaps directed at people deemed not to to be tied to his campaign — would Paul Manafort count, for example, after he had purportedly left the campaign? It leaves open the possibility of other kinds of collection, such as financial transfers (which they have multiple other ways of getting, like SWIFT and Section 215 and SARs from banks) affecting Trump’s campaign. It also leaves open a whole range of targeting of Russians that happen to pick up Trump’s campaign officials.

Clapper also excludes, in his denial, Title III warrants. That’s important because of reporting that the investigation of Manafort started as a criminal investigation.

Note, Clapper goes on to state clearly that, at least as of the time he left, there was no evidence of collusion between Trump’s campaign and the Russians. “[A]t the time [of the IC report], we had no evidence of such collusion,” though he allows such evidence could have “become available in the time since I left the government.”

Sean Spicer asks Congress to find out which Trump aides were wiretapped

Also this morning, Sean Spicer released a curious statement. It starts by stating that certain “reports” are “very troubling.”

Reports concerning potentially politically motivated investigations immediately ahead of the 2016 election are very troubling.

Not only does this attempt to absolve the President of his unhinged tweeting, but it backs my argument that Trump was responding to the Breitbart article which was itself based off misleading information.

Spicer then states the Trump “is requesting” that the intelligence committees “determine whether executive branch investigative powers were abused in 2016.”

President Donald J. Trump is requesting that as part of their investigation into Russian activity, the congressional intelligence committees exercise their oversight authority to determine whether executive branch investigative powers were abused in 2016.

White House Counsel Don McGahn reportedly spent yesterday trying to chase down a purported FISA warrant targeting Trump. Trump has the ability to do this himself (though it would be improper). Either McGahn learned there was nothing, or Trump wants to have the Intelligence Committees — led by Trump national security advisor Richard Burr and Trump transition official Devin Nunes — check into his claims.

And with that, Spicer says neither Trump nor anyone else will comment on Trump’s unhinged twitter rant until the intelligence committees are done.

Neither the White House nor the President will comment further until such oversight is conducted.

Let’s see whether Spicer can prevent Trump from going on another rant.

Devin Nunes takes up Trump’s request

Finally, Devin Nunes released a statement saying that the House Intelligence Committee would do what the President asked.

One of the focus points of the House Intelligence Committee’s investigation is the U.S. government’s response to actions taken by Russian intelligence agents during the presidential campaign. As such, the Committee will make inquiries into whether the government was conducting surveillance activities on any political party’s campaign officials or surrogates, and we will continue to investigate this issue if the evidence warrants it.

In fact, that category “the U.S. government’s response” was supposed to be geared towards preventing a future attack; that bullet ended “what do we need to do to protect ourselves and our allies in the future?” in the scope of investigation agreed on with Adam Schiff just earlier this week.

Plus, what happened to the previously emphasized part of the HPSCI investigation, leaks?

What possible leaks of classified information took place related to the Intelligence Community Assessment of these matters?

After all, if Trump’s twitter rant yesterday had any basis in truth, he just told a bunch of people about a FISA wiretap.

 

But Nunes doesn’t appear to think Trump’s twitter rant did reveal classified information. Huh.

In any case, let’s review what has happened.

On Thursday, Jeff Sessions recused from the election-related parts of this investigation. In response, Trump went on a rant (inside the White House) reported to be as angry as any since he became President. The next morning, Trump responded to a Breitbart article alleging a coup by making accusations that suggest any wiretaps involved in this investigation would be improper. Having reframed wiretaps that would be targeted at Russian spies as illegitimate, Trump then invited Nunes to explore any surveillance of campaign officials, even that not directly tied to Trump himself.

And Nunes obliged.

If I’m someone tied to the Hillary campaign, here’s what I do: I immediately call on Devin Nunes to explain how a second set of Huma Abedin’s emails involving the Hillary server got targeted just days before the election. We still don’t know the circumstances of that discovery. And if Nunes is concerned about inappropriate surveillance, surely he’ll want to get to the bottom of that potentially election-altering surveillance.

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

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

Robert Eatinger Brags that CIA Complies with Law Passed 2 Years Ago — But Will It Really Limit CIA?

Robert Eatinger — the former CIA lawyer deeply implicated in torture who referred the authors of the Senate Intelligence Committee report on torture to DOJ for criminal investigation — has a curious column in The Cipher Brief. Eatinger purports to rebut commentators who have described “Executive Order 12333 as a sort of mysterious, open-ended authorization for U.S. intelligence agencies to engage in secret, questionable activities.” But mostly he addresses the Agency’s new Attorney General Guidelines under EO 12333 approved by Loretta Lynch on January 17.

Eatinger doesn’t explain what led to the adoption of new procedures. He does at least admit that the CIA had been operating on procedures written in 1982, a year after EO 12333 mandated such procedures. He also admits that those procedures did not reflect, “advances in collection methods due to changes in technology and privacy interests unforeseen in 1982, which did not contemplate the ubiquitous use of mobile phones, computers, and other digital media devices or evolving views of privacy and thus did not seek to address ‘big data’ or ‘bulk’ collection.” But readers who didn’t know better might conclude from Eatinger’s piece that the CIA just decided out of the blue to start protecting Americans’ privacy.

The proximate change to the procedures was likely a desire to finally expand data sharing under Obama’s new EO 12333 sharing rules, a final step before accessing a firehose of data from the NSA (curiously, Eatinger doesn’t mention that these new procedures will probably enable the expanded intake of vast amounts of bulk data including US person information). It also (as I’ll explain) belatedly responds to a mandate from Congress.

But in reality, the change comes in response to over three years of nagging from the Privacy and Civil Liberties Oversight Board, which asked James Clapper and Eric Holder to make agencies update these procedures back in August 2013, pointing out how much technology had changed in the interim. Which is another way of saying that, for the entire time when Eatinger was a top CIA lawyer, CIA was perfectly happy to operate on 35-year old procedures not reflecting current technology.

Among the procedures limiting CIA’s (newly expanded) access to bulk data, Eatinger highlights the five year restriction on retention of information including US person data.

These sections also satisfy the requirements to create procedures that limit to five years the retention of any nonpublic telephone or electronic communication acquired without the consent of a person who is a party to the communication except in defined circumstances (Section 309).

[snip]

Section 6 creates two different types of handling requirements for unevaluated information; one for “routine” handling and one for “exceptional” handling.  Exceptional handling requirements apply to intelligence collections either of nonpublic communications that were acquired without the consent of a party to the communication, or that are anticipated to contain U.S. person identifying information that is significant in volume, proportion, or sensitivity.  The exceptional requirements include segregating the unevaluated information, limiting access to CIA employees who receive special training, creating an auditable record of activity, and importantly, requiring such information to be destroyed no later than five years after collection, permitting extensions in limited circumstances.

The five-year limit in Section 6 is but one example of how specifics in the new procedures attempt to find the right balance of intelligence and privacy interests.  Each procedure involves an effort to find the right tradeoffs to allow lawful intelligence collection and protect privacy and civil liberty rights and interests. The tradeoff was between the risk to a loss in intelligence capabilities by destroying information at five years against the risk to compromising privacy interests by keeping the information longer.

It’s not until nine paragraphs after Eatinger introduces this requirement, which he notes arises from “Section 309” in paragraph 8, that he explains where it comes from in paragraph 17, from Congress.

The five-year retention period in Section 6 was not set by the CIA, DNI, or Attorney General, however, it was set by Congress through Section 309.

Eatinger doesn’t describe when Congress passed that law, but I will. It was in the Intelligence Authorization for FY 2015. It became law on December 19, 2014.

Which is another way of saying that for over two years after Congress passed this law mandating the destruction of bulk data including US person data after five years, CIA hadn’t updated its EO 12333 procedures to reflect that requirement (this was after Eatinger left CIA, so we can’t blame him for the tardiness).

Now, Eatinger helpfully confirms something I’ve long believed but hadn’t confirmed: rather than sorting through and deleting the US person data in the collection, which would be all the law requires, the CIA instead destroys the entire data set at the five year interval, effectively extending the privacy protections passed to cover US persons to foreigners as well (you’re welcome, Europe). Eatinger does so in a passage laying out the trade-offs to deleting data after five years.

Deleting all unevaluated information specifically concerning U.S. persons has little to no intelligence downside because intelligence agencies will never want or have reason to search their intelligence holdings.  The five-year period to destroy all unevaluated information, however, will remove not only information concerning U.S. persons but also any information potentially concerning valid intelligence targets, such as international terrorists, from the intelligence agencies holdings.  In this latter case, however, intelligence agencies will want and may have a reason to search its holdings for information on these targets.  The deletion of that information could thus have an adverse intelligence impact, particularly on counterterrorism and counterproliferation intelligence reporting, as well as on the conduct of human intelligence operations, all of which are important activities of the CIA.

The CIA could be expected to search all of its holdings upon receiving intelligence identifying a previous unknown person as a suspected terrorist or proliferator.  Under the five-year retention period, when the CIA conducts the search, any unevaluated information on that person that may have been acquired during a bulk collection activity over five years ago will have been deleted; CIA’s search will not retrieve that information.  Thus, CIA might gain an incomplete or misleading understanding of the individual, his place in a terrorist network, and his contacts.  Or, CIA may send intelligence officers to conduct dangerous human intelligence operations to collect information it once had.  The loss of five-year old information could also adversely impact the spotting, assessing, recruiting, and running of human sources. [my emphasis]

This is how Eatinger introduces Congress’ role in requiring CIA to destroy data after five years: to blame them for limiting the CIA’s ability to sit on bulk data on Americans and foreigners for 25 years. To his credit, Eatinger does describe Congress as “the right body” to “impose” a “single retention period … on the entire intelligence community.” Given his direct attacks on Congressional oversight of the torture program, though, I wonder precisely in what spirit he intended this comment.

In any case, Eatinger also emphasizes that CIA doesn’t have to abide by this “single retention period …  imposed on the entire intelligence community.” After suggesting that some agencies might be able to abide by the Congressional mandate, he asserts unnamed other agencies may not be able to.

Some intelligence entities likely could accomplish their mission and destroy unevaluated information in less than five years.  Others may need to retain information longer than five years.

He then notes that Congress has given agencies an out.

Congress has provided that intelligence agency heads may retain information longer than five years if the head determines a longer retention “is necessary to protect the national security of the United States” and certifies in writing to the intelligence committees the reasons for that determination, the new retention period, the particular information to be retained; and the measures that will be taken to protect the privacy interests of U.S. persons and persons located inside the United States.

That out is laid out in CIA’s procedures at 6.2.2.2, but rather than stating the intelligence committees must get notice, the section says only that, “Upon such extension, the [CIA Director] shall complete any notifications required by statute, Executive Order, or other Presidential decree” which, given the way the Bush Administration ignored FISA based on Presidential decree, doesn’t inspire confidence that Congress would get the notice mandated under Section 309.

In any case, we have reason to believe the CIA is just one month into receiving an expanded firehose of data, including a great deal of data on Americans. And Eatinger sure seems to suggest the CIA may never give the data obtained via that firehose up.

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

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

Brennan Makes Even Crazier Plausible Deniability Claims about Trump Dossier

As I have laid out, the intelligence community has been making some odd claims about the Trump dossier. First, James Clapper claimed that the IC was the last to learn of the dossier, in spite of the fact that IC member FBI was getting the reports at least by August and probably earlier. Then, Sunday, John Brennan claimed the IC couldn’t be held responsible for leaking the dossier (though without denying that the IC had leaked it), because the dossier had already been out there; except the dossier — released with a report that post-dates all known public versions of the dossier — therefore post-dates what “was already out there.”

Brennan’s back with yet another claim, this in response to Trump’s insinuation that Brennan might have leaked it: Brennan claimed he has never read the dossier.

“Was I a leaker of this? No,” Mr. Brennan said Monday in an interview at CIA headquarters, days before he ends a career that has spanned more than three decades and that took him from entry-level recruit to head of the nation’s most storied spy service.

“First of all, this is not intelligence community information,” Mr. Brennan said. He noted that the dossier had been circulating “many months” and that he first heard about it from inquiring reporters last fall. To date, he hasn’t read the document and gave it no particular credence, he said.

“I would have no interest in trying to give that dossier any additional airtime,” Mr. Brennan said.

I mean, sure, you’re conducting one of the most sensitive briefings of recent history. The briefers here are all principals — along with Brennan and Clapper, Admiral Mike Rogers and Jim Comey. And you don’t even read the stuff that goes into it? You don’t review the underlying dossier that, you claim, you’re briefing just so Trump knows what the Russians have on him?

That may well be true. But if it is, it suggests a very deliberately cultivated plausible deniability, one that the decision to have Comey brief the dossier to Trump by himself only adds to. Most charitably, Brennan cultivated such deniability only to ensure he can claim that the CIA is not engaging in domestic politics (and that may well be enough).

But along with the pointedly false claims about what the IC knew when, the claim raises questions about why CIA would go so far out of its way to be able to claim they didn’t know.

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

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