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Tucker Carlson and Glenn Greenwald Are Outraged that Bill Barr Set Up Antifa!!!! [Just Kidding]

You’ve no doubt seen the conspiracy theory championed by Tucker Carlson and Glenn Greenwald claiming that the unnamed Oath Keeper associates described in those indictments are actually FBI informants.


As happened with earlier propaganda campaigns (notably the one downplaying Brian Sicknick’s death), the conspiracy theory started with Revolver News, got magnified by Tucker Carlson, and got normalized by Glenn Greenwald (the latter of whose central role largely escaped attention because commentators don’t identify him, yet, as a right wing propagandist).In his first appearance, Carlson grotesquely accused Sharon Caldwell, who was described in later Oath Keeper documents as Person Two but was identified clearly in earlier documents by her first name and as Thomas Caldwell’s spouse, of being an informant who framed her husband.

Person Two and Person Three were organizers of the riot. The government knows who they are. But the government has not charged them. Why is that? You know why. They were almost certainly working for the FBI. So FBI operatives were organizing the attack on the Capitol on January 6, according to government documents. And those two are not alone! In all Revolver News reported there were, quote, “upwards of 20 unindicted co-conspirators in the Oath Keepers indictments, all playing various roles in the conspiracy, who have not been charged for virtually the exact same activities — and in some cases much, much more severe activities — as those named alongside them in indictments.”

Huh????

So it turns out that this white supremacist insurrection was, again, by the government’s own admission in these documents organized at least in part, by government agents.

This little campaign has led compromised members of Congress to embrace this excuse for the insurrection they previously have claimed was not an insurrection at all.


Thomas Caldwell’s wife, Sharon, is Person Two

To show that “Person Two,” whom Tucker Carlson alleges for framing Thomas Caldwell, is actually his wife, Sharon, you can compare this filing, where her name is not redacted, with this one, where “Person Two” has substituted for her name.

1. Sharon Caldwell is Thomas’ wife:

2. “Sharon and I are setting up shop there” (at the Comfort Inn Ballston) and then “Sharon and I are going our way.”

3. “Sharon was right with me!”

Later filings over release conditions confirm the selfies posted to Facebook were of Thomas’ wife, describe Thomas agreeing to be accompanied by his wife, Sharon, to Sunday Mass starting on Easter, expressing concern that his wife has to do all the chores on their 30-acre farm which has led to the loss of farm income, and describing that he rarely travels anywhere without his wife, Sharon Caldwell, and she’s willing to go with him every time he does leave their property.


Glenn and Tucker must be outraged that Billy Barr set up Antifa

Parts of this campaign are pathetic, even for the men involved, and may reflect a desperate attempt to repackage their own past claims.

For example, after parroting a bunch of obviously self-serving PR from Parler in the days after the attack (such as that the insurrectionists organized on Facebook, not Parler), Glenn now shows that Parler was actually sharing threats of violence with the FBI in advance, without noting that that undermines several things he said in the past, such as that the insurrectionists didn’t plan on Parler. This must be dizzying and embarrassing for Glenn.

And because Glenn has to package this — like he did his never-ending obsession with Hunter Biden’s laptop — as a failure of Democrats and liberal media, he remarkably claims that the left — which has so relentlessly asked why the FBI was caught unawares that Glenn even screen caps an example of Ryan Goodman linking to Carolyn Maloney doing so — is resistant to questioning the FBI’s role in the riot.

What accounts for this furious liberal #Resistance to questioning the FBI’s role in the January 6 riot and asking whether there are vital facts that are being concealed?

Maybe Glenn has a harder time getting CSPAN in Brazil than I do in Ireland, because when I’ve watched the multiple hearings Democratic Chairs of various committees (including Maloney) have had with FBI Director Chris Wray or now-National Security Branch EAD Jill Sanborn, they question the FBI about it over and over and over. Glenn literally made up this hash-tagged resistance out of thin air because he needs it to be true, when in fact the opposite is true.

But it’s important to look at what this propaganda campaign obscures.

Probably, this campaign got started because a number of people implicated in the investigation, now realizing that it won’t go away, are trying to absolve themselves of any responsibility. It has already happened with those charged for crimes committed on January 6. Dominic Pezzola suggested that a key witness against him was actually more involved in the riot than he was, only to learn he guessed wrong and that the government was going to invoke a terrorism enhancement with him. Similarly, top Proud Boys were hinting at challenges to the UCC-1 described in their indictment, before they grew conspicuously silent about it, as if they learned something that undercut such claims.

The other reason people are talking about informants is that (FBI’s failure to respond notwithstanding) it’s not that far-fetched. Importantly, multiple Proud Boys have claimed to be informants, though Glenn only mentions Enrique Tarrio. Maybe that’s because the implication of the claims from the others leads to a place Glenn and Tucker don’t want to go. Of the four Proud Boys that Aram Rostom described as being FBI informants prior to January 6, three claimed to be sharing information about Antifa.

Reuters interviewed two Proud Boys members who spoke on the condition of anonymity about some members’ interactions with the FBI. Reuters also interviewed Proud Boys leader Enrique Tarrio, examined court records and interviewed sources close to the federal investigation.

The reporting showed:

– One Proud Boy left the group in December after telling other members he was cooperating with the FBI by providing information about Antifa, say Tarrio and two other Proud Boy sources. The former member, whom Reuters was unable to identify, insisted to group leaders that he had not revealed information about the Proud Boys, these people say.

– A second Proud Boy leader bragged in 2019 about sharing information with the FBI about Antifa, according to private chats leaked on social media. The chats’ authenticity was confirmed by a source familiar with the Proud Boys and the Jan. 6 case.

– A third Proud Boy leader, Joseph Biggs, who was indicted and charged with conspiracy in the January attack, has said in court papers he reported information to the FBI about Antifa for months. Reuters spoke to Biggs two days before the riot. In that interview, he said he had specific plans for Jan. 6, but declined to disclose them. But, he volunteered to Reuters in that call, he was willing to tell his FBI contact of his plans for the coming rally, if asked. Reuters wasn’t able to determine whether such a contact took place. [my emphasis]

What this suggests is not that the FBI set up the Proud Boys with paid informants, but the opposite: that under a President who “denounced” the Proud Boys by saying they should “Stand back and stand by,” and under an Attorney General who dismissed threats against a judge involving the Proud Boys as a technicality, the Proud Boys were viewed not as an equivalent (or greater) threat than Antifa, but instead were able to disguise their use of Antifa as a foil to sow violence by serving as informants against them.

If these three self-proclaimed informants are right (there’s good reason to doubt them), then it means under Bill Barr, the FBI was using informants not to set up the Proud Boys, but instead to set up Antifa.

If Tucker and Glenn were good faith actors and not paid propagandists, you would fully expect them to be outraged that the FBI set up Antifa.

Especially because of the possibility that the FBI didn’t take the Proud Boys threat seriously because (on top of being endorsed by the President and downplayed by the Attorney General), they prioritized investigating Antifa over investigating the Proud Boys. With that possibility in mind, read the framing of Glenn’s Substack post:

The original report, published by Revolver News and then amplified by Fox News’ Tucker Carlson, documented ample evidence of FBI infiltration of the three key groups at the center of the 1/6 investigation — the Oath Keepers, the Proud Boys, and the Three Percenters — and noted how many alleged riot leaders from these groups have not yet been indicted. While low-level protesters have been aggressively charged with major felonies and held without bail, many of the alleged plot leaders have thus far been shielded from charges.

The implications of these facts are obvious. It seems extremely likely that the FBI had numerous ways to know of any organized plots regarding the January 6 riot (just as the U.S. intelligence community, by its own admission, had ample advanced clues of the 9/11 attack but, according to their excuse, tragically failed to “connect the dots”).

[snip]

What would be shocking and strange is not if the FBI had embedded informants and other infiltrators in the groups planning the January 6 Capitol riot. What would be shocking and strange — bizarre and inexplicable — is if the FBI did not have those groups under tight control.

It is fucking insane that Glenn claims to be mystified by the possibility that a group endorsed in the President’s first Presidential debate and dismissed by the Attorney General would not get the proper scrutiny by the FBI. Trump very effectively punished people — especially at the FBI — for investigating entities close to him. And on September 29, 2020, Donald Trump made it quite clear the Proud Boys should get special treatment. That’s all the explanation you need. Though it is, indeed, reason for closer scrutiny, the kind of scrutiny that Democrats have been demanding, Glenn’s false claims to the contrary notwithstanding.

But if you want to raise the possibility that FBI had informants in the group, then the explanation may be equally as damning: That the FBI didn’t see January 6 coming because it was too busy treating Antifa as a terrorist threat.

Indeed, everything we know about the threat reporting on that day — which claimed the big risk of violence arose from the possibility of clashes between counter-protestors and right wing militias — suggests that may be what happened: that the FBI was looking the other way, possibly in conjunction with the militia that played a key role in planning the attack. That certainly accords with Acting Secretary of Defense Christopher Miller’s claim that Trump told him to use the National Guard to protect Trump supporters.

Since Glenn claims to be very familiar with the role of informants, surely he knows that multiple terrorists — definitely David Headley and allegedly Tamerlan Tsarnaev and Omar Mateen — have planned attacks under the cover of serving as informants (or in the case of Mateen, his father doing so). There were also at least two former FBI informants that played key parts in the Russian operation in 2016. The most logical answer to the questions that Glenn pretends to entertain is that the FBI didn’t look too closely at what Joe Biggs was planning (as part of a Kelly Meggs-brokered Florida alliance of militia groups with ties to Roger Stone), because they treated him as a credible source of reporting on Antifa.

The propaganda that goes unnoticed

The absurdity of accusing Sharon Caldwell of entrapping her spouse has, justifiably, gotten all the attention from this campaign.

But there’s a piece of propaganda that it incorporates — one parroted by Members of Congress — that deserves focus of its own: in framing his piece, Glenn not only claims that the plot leaders have been shielded from charges, he also states as fact that, “low-level protesters have been aggressively charged with major felonies and held without bail.”

While low-level protesters have been aggressively charged with major felonies and held without bail, many of the alleged plot leaders have thus far been shielded from charges.

In making this claim, Glenn is mindlessly parroting something that appears in the original Revolver piece.

The first category is the group of mostly harmless tourists who walked through already opened doors and already-removed barricades, and at most were guilty of minor trespassing charges and light property offenses. The second group consists of those who were violent with police officers, broke down barricades, smashed windows, belonged to a “militia” group engaged in military-style planning prior to the event, discussed transporting heavy weaponry, and so forth.

Up until now, the overwhelming (perhaps exclusive) share of counter-establishment reporting on 1/6 has focused on absolving the first group. And this is a valuable thing. The notion that these harmless “MAGA moms” wandering around the Capitol were domestic terrorists engaged in an insurrection is absurd. That many of these people are being held in prison, without bail, under harsh conditions, amounts to an unacceptable and outrageous abuse of basic human rights.

The only way to sustain a claim that “low-level protestors” have been charged with major felonies and held without bail is to claim that alleged plot leaders — people like Ethan Nordean, Joe Biggs, Billy Chrestman, and Kelly Meggs — were actually just protestors.

That’s because with perhaps two exceptions (people like Karl Dresch whose criminal records were cited as the reason for their detention), the only people who remain in jail are either those charged with planning the insurrection, or people who engaged in violence or came armed. And even many of those people were released. Just going in alphabetical order, Christopher Alberts brought a gun and a magazine to the insurrection but was released on bail. John Anderson is accused of assault but is out on bail. Richard Barnett, who entered Nancy Pelosi’s office with a high voltage stun gun, was initially jailed but has since been released. Bradley Bennett, whom the government argued went on the lam for weeks and destroyed his phone, got released on bail. Craig Bingert, involved in one of the conflicts with cops at a barricade, was released on bail. Gina Bisignano, accused of inciting violence and destruction with a bullhorn, was released on bail. Joshua Black, who was involved in confrontations with cops before heading to the Senate Chamber and said God ordered him to riot, was released on bail. James Breheny, an Oath Keeper who allegedly lied to the FBI and attended a key inter-militia planning event, is out on bail. Both men who brought zip ties to the Senate Chamber on the day of the riot, Eric Munchel and Larry Brock, are out on bail (and Brock isn’t even charged with a felony).

Even Brandon Fellows, charged with obstruction and present when Jeff Merkley’s office was trashed and laptop stolen, thus far remains out on bail, even after several bail violations.

Perhaps the only two people who remain in custody who weren’t either associated with a group being treated as a militia or involved in assault are Doug Jensen and Jacob Chansley. Both, though, played a kind of leadership role during the attack, both brought blades with them to the insurrection, both had direct confrontations with cops, and the government has argued (Jensen, Chansley) both exhibit the kind of fervor in their QAnon beliefs that pose a particular danger.

Given that QAnon had better success placing bodies where they were useful during the insurrection, I’m not sure it even makes sense to treat them differently than the more traditional militia.

Other than that, the men detained pre-trial are accused of leading the insurrection, precisely the people that this conspiracy theory falsely claims have been shielded from charges. Among the Proud Boys, Ethan Nordean, Joe Biggs, Charles Donohoe, Zack Rehl, and Kansas City cell leader Billy Chrestman remain jailed. Among the Oath Keepers, Kelly Meggs, Kenneth Harrelson, and Jessica Watkins remain jailed. All are accused of playing key leadership roles in the insurrection.

There were some questionable detention decisions early on. At this stage, however, there are no cases where people still detained are simply protestors on the wrong side of the law.

And yet even Glenn makes that false claim without any evidence.

Donald Trump’s FBI Director and Bill Barr’s hand-picked US Attorney called these defendants terrorists

There’s one more aspect of this conspiracy that is confounding.

Tucker Carlson and Glenn Greenwald suggest this is a Deep State plot to harm Trump and his supporters. Even Andrew McCarthy, who wrote a long and worthwhile piece debunking Tucker and Glenn’s conspiracies, nevertheless claims the prosecutorial decisions in this case reflect Democratic politicization.

Although Schaffer is plainly a member of the Oath Keepers conspiracy, the Biden Justice Department did not have him plead guilty to the conspiracy charge in the Oath Keepers indictment. That’s undoubtedly because, for the purposes of helping Democrats hype a white-supremacist terrorism narrative, the conspiracy charge is too minor. Although that charge has been portrayed by the media and the Justice Department as if it were a terrorism allegation, it actually involves a statute that criminalizes comparatively minor conspiracy offenses, fit for a maximum penalty of just five years’ imprisonment (with the possibility of no jail time at all).

So instead, DOJ had Schaffer plead guilty to a two-count criminal information, charging him with the substantive crimes of obstructing Congress and illegally carrying a dangerous weapon (bear spray) on restricted federal grounds. That allowed government officials to bray that Schaffer could be looking at 30 years in prison, which sure sounds a lot worse than five years. But it’s a feint. The 30-year level is just an aggregation of the maximum sentences prescribed by the two statutes in Schaffer’s guilty plea — i.e., the highest possible sentence that could potentially apply to anyone who violated these laws. The sentence a judge actually imposes within that 30-year range depends on the circumstances, with only the worst offenders getting the maximum sentence. Realistically, then, what matters in Schaffer’s case are the federal sentencing guidelines that apply specifically to him. In the plea agreement’s fine print, prosecutors concede that the guidelines call for a relatively paltry 41- to 51-month term, which may be reduced if his cooperation proves to be valuable.

I suspect that Schaffer is one of the unnamed, numbered “Persons” referred to in the Oath Keepers indictment.

[snip]

To be clear, Carlson is right that it is ridiculous for Attorney General Merrick Garland to portray the Capitol riot as if it were a terrorist attack and the people behind it as the most dangerous national-security threat we face. As noted above, the conspiracy allegation is not a terrorism charge: It carries a penalty of no more than five years. Carlson is right to point out that, despite the government’s and the media’s claims to the contrary, there is no indication that racism motivated the riot (the Oath Keepers, for example, are not a white-supremacist organization, and the indictment does not even hint that race had anything to do with January 6). Carlson is right that, even as congressional Democrats posture about the supposed need for a commission to fully expose the events of January 6, the government is withholding mounds of information — including the identity of the security official who killed rioter Ashli Babbitt, a concealment that would be unfathomable in a case where a police officer killed an African-American criminal suspect or a Black Lives Matter rioter. And Carlson was right to call out the ludicrous suggestion by Frank Figliuzzi, a former top FBI national-security official, that congressional Republicans who cynically supported Trump’s scheme to overturn the election result are the equivalent of a terrorist organization’s “command and control element.”

Christopher Wray — the FBI Director chosen by Donald Trump — has, from day one, called this a terrorist attack.

More importantly, the person leading this investigation for the first two months was the US Attorney Bill Barr installed with no input from Congress, Michael Sherwin. If Sherwin had his way, these people would be charged with seditious conspiracy. Under Sherwin, Proud Boy Dominic Pezzola’s crimes were labeled terrorism. Under Michael Sherwin, Jessica Watkins’ crimes were labeled terrorism. And while the Jon Schaffer cooperation agreement that McCarthy disdains was finalized after Sherwin left, signs of it were already evident before Sherwin left (note, McCarthy is probably wrong in his belief that Schaffer is one of the people identified thus far in the Oath Keepers conspiracy, and he misunderstands why prosecutors charged Schaffer like the did). A Sherwin-friendly article written after his departure quotes him stating these were not close cases (and also taking credit for making the bulk of the cases).

“These were not complicated cases,” Sherwin said of the Capitol breach probe. “What made these cases so unusual were the scope and scale of the crime,” reaching into almost every state in the country, including Florida.

Sherwin’s tour of duty as acting U.S. Attorney ended soon after the Biden administration took over the Justice Department. He was asked to stay on as the lead prosecutor in the Capitol breach probe, but Sherwin said it was time to move on after making the bulk of the cases in the investigation.

If you have a problem with the way this investigation unfolded, you have a problem not with Joe Biden’s DOJ, but instead with the guy Bill Barr installed into a politicized US Attorney role with no input from Congress.

Which may be why those who need to downplay the seriousness of the attack have instead resorted to baseless conspiracy theories.

Update: Because some dead-enders still don’t believe that Tucker Carlson has accused Sharon Caldwell of entrapping her husband Thomas, I’ve done an entire section showing how the same references to Person Two in a later filing show up as Thomas’ wife Sharon in an earlier one. I also describe all the efforts Sharon is making to keep her husband out of jail.

January 6: Focus on Jeff Merkley’s Office and Missing Laptop

Two days ago, I noted that discovery correspondence in the case of Long Island CPA Justin McAuliffe suggests he may know something about what happened to Jeff Merkley’s laptop, which was stolen during the riot. Merkley described the damage rioters had done to his office in this video.

In a letter describing the discovery provided to McAuliffe, DOJ included a picture of Merkley’s stolen laptop, among other items.

As I noted, McAuliffe has not been charged with theft or damage at all. He remains charged under his original complaint with just trespassing.

In the last two days, there have been several developments in the investigation of Merkley’s missing laptop.

First, on May 4, the government arrested a guy named Gary Edwards.

His arrest affidavit includes a picture of him in what the wall hangings, among other things, make clear is Merkley’s office.

Most pictures in his arrest affidavit (including this one) show Edwards using his phone. I have speculated in the past that DOJ is prioritizing the arrests of MAGA tourists — those otherwise charged with just misdemeanor trespassing — for evidence they may have on their cell phones, and Edwards may be such an example.

Also in the last few days, GWU made the April 30 arrest of Oliver Sarko public. His arrest affidavit describes that he entered Merkley’s office. The picture included shows that he was filming as he walked out.

Like Edwards, Sarko was arrested solely for trespassing, in another arrest that may serve to obtain key evidence about what happened in Merkley’s office.

More interesting still, the government moved to revoke the bail of Brandon Fellows. Fellows is the guy that McAuliffe’s arrest affidavit shows sitting next to McAuliffe at a table in Merkley’s office (Fellows is the guy with the fake beard; his own arrest affidavit includes a screen cap with Fellows at the table that doesn’t show McAuliffe).

Fellows’ arrest affidavit (unlike McAuliffe’s) notes that Merkley’s laptop was stolen, but it doesn’t charge him for the theft.

On January 6, 2021, a live stream video on the DLive platform was broadcasted to the public from user “Baked Alaska” and a portion was later posted on Twitter. In the video, several people were observed in an office that appeared to be within the Capitol. The video showed a person who appeared to be FELLOWS, sitting at a table with his feet propped up on a table, as shown in the still shot below. The chairs, table, drapes, and wall art appeared to be consistent with those in the office posted by Senator Merkley. The conference room in which FELLOWS is present appears to be Senate room S140, the private “hideaway” office of Senator Merkley within the U.S. Capitol. The artwork visible on the walls of the conference room in the video is also visible on a video that Senator Merkley posted to Twitter on January 6, 2021, at 11:36pm, documenting some of the damage to his office, as described above. At this time, there is no evidence that FELLOWS was involved in any of the theft, damage, or destruction – other than being a part of the group that occupied the office for some period of time.

According to the government’s motion to revoke bail, since the time Fellows has been out on bail, he has committed a range of small release violations, along with a more significant one: petty larceny.

The PSA’s May 5, 2021 report cites numerous violations to support the request to remove the defendant from their supervision. First, the report relayed two instances, on April 8, 2021, and May 1, 2021, in which the defendant failed to comply with his curfew 9:00 p.m. curfew. On both occasions, PSA had to contact the defendant, who gave excuses for his violations (Doc. 23 at 3-4). On the latter occasion, the defendant told the PSA officer that he had left a message that he was running late, however there was no record of such a message being left. (Id. At 5). Second, the report also alleges two violations of his failure to report to PSA as directed on April 9, and April 16, 2021 (Id. at 2). Third, the report indicates the defendant was given a ticket in New York for Petit Larceny (Misdemeanor), with an appearance date of May 12, 2021 (Id. at 3). As noted in the PSA report, defendant failed to report the arrest as required by his conditions of release. (Id.). After the defendant was arrested for the Petit Larceny he was issued an appearance ticket directing him to appear in Court for the offense. Similar to his initial arrest by the FBI in this matter, the defendant told the New York State police officer that he would meet the officer to be processed on March 8, 2021, but failed to show up. The defendant only turned himself in after the officer contacted him again on April 28th.

The larceny is just a misdemeanor. But Fellows’ arrest affidavit makes it clear the FBI thinks he might have stolen Merkley’s laptop (curiously, he’s one of the rare January 6 defendants for whom the government got a prospective location warrant, as well as a PRTT order to find out who he’d been talking with, though the former may have been because he was dicking around with self-reporting). And this motion to revoke bail suggests that while out on release under suspicion that he stole a laptop, he took something else, albeit far more minor.

Given that there are upwards of 300 people out on bail for charges related to January 6, I would imagine that Fellows is nowhere near the only one to have violated his release conditions (John Sullivan is the only one I can think of who was actually publicly reported for it).

But at a time when the government seems to be focusing closely on who stole Merkley’s laptop, they’ve decided it’s time to detain Fellows pending trial.

Update: After I posted this, GWU’s Seamus Hughes reminded me that Sarko’s arrest affidavit also included a reference to Merkley’s office. Thanks to him for the reminder.

Update: Because Judge Trevor McFadden held the hearing to consider bail revocation in person, the call-in line got bolloxed and as a result none of the press were able to hear McFadden’s reasons why he didn’t revoke Fellows’ bail, but he did not. He did, however, place him in home detention.

January 6: On the Track of the Missing Laptops

In recent days there have been developments in the investigation into two laptops stolen on January 6. First, a woman in Homer, Alaska claims the FBI seized her own devices, based off a suspicion that she is the woman who currently has Nancy Pelosi’s laptop.

Marilyn and Paul Hueper, owners of the Homer Inn and Spa, told Alaska’s News Source that agents broke through their door early Wednesday morning with guns drawn, handcuffed the couple and two guests, and started searching the premises.

“They basically took me out of the handcuffs and said something like, ‘So you probably know why we’re here.’ I was like, ‘no, probably not.’” Marilyn Hueper said Friday. “And they said, ‘well, we’re looking for Nancy Pelosi’s laptop and we know you were in the building and you were in the room at the time.’”

The FBI isn’t saying much about what they know about the search.

“I can confirm that, on April 28, the FBI was conducting court authorized law enforcement activity at the location you are referring to. At this time, and until it reaches the public realm, we can’t discuss the details,” Chloe Martin, Public Affairs Officer for the Alaska Field office of the FBI, told Alaska’s News Source via email Friday.

The Huepers’ name does not come up in a search of online court records for the U.S. District of Alaska.

The couple declined to provide a copy of the search warrant the FBI had, but said it permitted agents to search for items stolen from the Capitol.

Agents seized cell phones, laptops and a copy of the U.S. Declaration of Independence, the Huepers said.

“We never got within 100 yards of the main doors of the Capitol,” Paul Hueper said.

Her arguments that she’s not the person in the BOLO the FBI showed her are pretty convincing.

That said, she and her spouse claimed they were on the other side of the Mall on the day of the riot, even though they posted to Facebook from closer to the Capitol. I hope we learn how it’s possible that they have two GeoFences from the Capitol but could make a mistake like this.

Meanwhile, discovery correspondence filed yesterday in the case of Long Island CPA Justin McAuliffe suggests he may know something about what happened to Jeff Merkley’s laptop, which was also stolen during the riot.

Merkley did a video showing the damage done to his office after the insurrection, describing the laptop taken from his table and the broken hinges on the unlocked door.

And if you look closely in the arrest affidavit for McAuliffe, you can see the maps that appear in Merkley’s video, as well as the flag left behind.

But the discovery correspondence yesterday included a picture of the stolen laptop and the broken door among other items.

To be clear: McAuliffe has not been charged with theft or damage at all. He remains charged under his original complaint with just trespassing.

But rather than indicting him for any role in those crimes, the government continued his case until May 19, which either means he’s planning on pleading or the government believes that he (like Riley June Williams, who is accused of stealing Pelosi’s laptop) may know more about who took the laptop and what they did with it.

Or maybe the government is just waiting on DNA tests from that joint described in evidence picture, “joint.jpg,” before charging this case?

Breaking: Four Senators Rediscover Congress Has Oversight Role for Committing Troops

Don’t look for this important bit of news in the New York Times or Washington Post. At least at the time I started writing this, they hadn’t noticed that Senators Jeff Merkley, (D-OR), Mike Lee (R-UT), Joe Manchin (D-WV), and Rand Paul (R-KY) put out a press release yesterday calling for a Congressional vote on whether to authorize keeping US troops in Afghanistan beyond 2014. President Barack Obama and the Pentagon have been bargaining with Afghan President Hamid Karzai for over a year now to get a Bilateral Security Agreement that will authorize keeping US troops there after the current NATO mission officially ends at the end of this year, but we have heard almost nothing at all from Congress. Well, we did have some hypocrisy tourists calling for Karzai to sign the agreement immediately or suffer the financial consequences, but they didn’t call for using their Constitutional role in authorizing use of troops.

This bipartisan group had some pretty strong language about the push to exclude Congress from the decision-making on keeping troops in Afghanistan:

Today, Senators Jeff Merkley (D-OR), Mike Lee (R-UT), Joe Manchin (D-WV), and Rand Paul (R-KY) announced the introduction of a bipartisan resolution calling for Congress to have a role in approving any further United States military involvement in Afghanistan after the current mission ends on December 31, 2014. The Administration is reportedly negotiating an agreement that could keep 10,000 American troops or more in Afghanistan for another ten years.

“The American people should weigh in and Congress should vote before we decide to commit massive resources and thousands of troops to another decade in Afghanistan,” Merkley said. “After over 12 years of war, the public deserves a say. Congress owes it to the men and women in uniform to engage in vigorous oversight on decisions of war and peace.”

“After over a decade of war, Congress, and more importantly the American people, must be afforded a voice in this debate,” Lee said. “The decision to continue to sacrifice our blood and treasure in this conflict should not be made by the White House and Pentagon alone.

“After 13 years, more than 2,300 American lives lost and more than $600 billion, it is time to bring our brave warriors home to the hero’s welcome they deserve and begin rebuilding America, not Afghanistan,” Manchin said. “We do not have an ally in President Karzai and his corrupt regime. His statements and actions have proven that again and again. Most West Virginians believe like I do money or military might won’t make a difference in Afghanistan. It’s time to bring our troops home.”

“The power to declare war resides in the hands of Congress,” Paul said. “If this President  or any future President has the desire to continue to deploy U.S. troops to this region, it should be done so only with the support of Congress and the citizens of the United States.”

After 12 years and hundreds of billions of dollars spent, the Administration has declared that the war in Afghanistan will be wound down by December 31, 2014. However, the Administration is also negotiating an agreement with the Government of Afghanistan that would set guidelines for U.S. troops to remain in training, support, and counter-terrorism roles through at least 2024.

In November, the Senators introduced this bill as an amendment to the Defense Authorization bill, but it wasn’t allowed a vote. In June, the House of Representatives approved a similar amendment to the NDAA stating that it is the Sense of Congress that if the President determines that it is necessary to maintain U.S. troops in Afghanistan after 2014, any such presence and missions should be authorized by Congress.  The House amendment passed by a robust, bipartisan 305-121 margin.

But Merkley added yet another zinger. From the AFP story on the move, as carried in Dawn (emphasis added):

“We are introducing a bipartisan resolution to say before any American soldier, sailor, airman or Marine is committed to stay in Afghanistan after 2014, Congress should vote,” Democratic Senator Jeff Merkley told reporters.

Automatic renewal is fine for Netflix and gym memberships, but it isn’t the right approach when it comes to war.

Wow. What a concept. Read more

Ancient History: December 2012 in the Dragnet

PCLOB tells us that the FISA Court approved a new automated query system (versions appear to have been in development for years, and it replaced the automated alert system from 2009) in late 2012 that permitted all the 3-degree contact chains off all RAS-approved identifiers to be dumped into the corporate store at once where they can be combined with data collected under other authorities (presumably including both EO 12333 and FAA) for further analysis.

In 2012, the FISA court approved a new and automated method of performing queries, one that is associated with a new infrastructure implemented by the NSA to process its calling records. 68 The essence of this new process is that, instead of waiting for individual analysts to perform manual queries of particular selection terms that have been RAS approved, the NSA’ s database periodically perform s queries on all RAS – approved seed terms, up to three hops away from the approved seeds. The database places the results of these queries together in a repository called the “corporate store.”

The ultimate result of the automated query process is a repository, the corporate store, containing the records of all telephone calls that are within three “hops” of every currently approved selection term. 69 Authorized analysts looking to conduct intelligence analysis may then use the records in the corporate store, instead of searching the full repository of records.

According to the FISA court’s orders, records that have been moved into the corporate store may be searched by authorized personnel “for valid foreign intelligence purposes, without the requirement that those searches use only RAS – approved selection terms.” 71 Analysts therefore can query the records in the corporate store with terms that are not reasonably suspected of association with terrorism. They also are permitted to analyze records in the corporate store through means other than individual contact-chaining queries that begin with a single selection term: because the records in the corporate store all stem from RAS-approved queries , the agency is allowed to apply other analytic methods and techniques to the query results. 72 For instance, such calling records may be integrated with data acquired under other authorities for further analysis. The FISA court’s orders expressly state that the NSA may apply “the full range” of signals intelligence analytic tradecraft to the calling records that are responsive to a query, which includes every record in the corporate store.

(While I didn’t know the date, I have been pointing the extent to which corporate store data can be analyzed for some time, but thankfully the PCLOB report has finally led others to take notice.)

On December 27, 2012, Jeff Merkley gave a speech in support of his amendment to the FISA Amendments Act that would push to make FISC decisions public. It referenced both the backdoor loophole (which John Bates extended to NSA and CIA in 2011, was implemented in 2012, and affirmed by the Senate Intelligence Committee in June 2012) and the language underlying the phone dragnet. Merkley suggested the government might use these secret interpretations to conduct wide open spying on Americans.

If it is possible that our intelligence agencies are using the law to collect and use the communications of Americans without a warrant, that is a problem. Of course, we cannot reach conclusions about that in this forum because this is an unclassified discussion.

My colleagues Senator Wyden and Senator Udall, who serve on Intelligence, have discussed the loophole in the current law that allows the potential of backdoor searches. This could allow the government to effectively use warrantless searches for law-abiding Americans. Senator Wyden has an amendment that relates to closing that loophole. Congress never intended the intelligence community to have a huge database to sift through without first getting a regular probable cause warrant, but because we do not have the details of exactly how this proceeds and we cannot debate in a public forum those details, then we are stuck with wrestling with the fact that we need to have the sorts of protections and efforts to close loopholes that Senator Wyden has put forward.

[snip]

Let me show an example of a passage. Here is a passage about what information can be collected: “ ….. reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2),” and so on.

Let me stress these words: “relevant to an authorized investigation.”

There are ongoing investigations, multitude investigations about the conduct of individuals and groups around this planet, and one could make the argument that any information in the world helps frame an understanding of what these foreign groups are doing. So certainly there has been some FISA Court decision about what “relevant to an authorized investigation” means or what “tangible things” means. Is this a gateway that is thrown wide open to any level of spying on Americans or is it not? Read more

On the Meanings of “Dishonor” and “Hack”

The former NSA IG (and current affiliate of the Chertoff Group profiteers, though he didn’t disclose that financial interest) Joel Brenner has taken to the pages of Lawfare to suggest anyone trying to force some truth out of top Intelligence Community officials is dishonorable.

On March 12 of this year, Senator Ron Wyden asked James Clapper, the director of national intelligence, whether the National Security Agency gathers “any type of data at all on millions or hundreds of millions of Americans.”

“No, sir,” replied the director, visibly annoyed. “Not wittingly.”

Wyden is a member of the Senate Select Committee on Intelligence and had long known about the court-approved metadata program that has since become public knowledge. He knew Clapper’s answer was incorrect. But Wyden, like Clapper, was also under an oath not to divulge the story. In posing this question, he knew Clapper would have to breach his oath of secrecy, lie, prevaricate, or decline to reply except in executive session—a tactic that would implicitly have divulged the secret. The committee chairman, Senator Diane Feinstein, may have known what Wyden had in mind. In opening the hearing she reminded senators it would be followed by a closed session and said,  “I’ll ask that members refrain from asking questions here that have classified answers.” Not dissuaded, Wyden sandbagged he [sic] director.

This was a vicious tactic, regardless of what you think of the later Snowden disclosures. Wyden learned nothing, the public learned nothing, and an honest and unusually forthright public servant has had his credibility trashed.

Brenner of course doesn’t mention that Clapper had had warning of this question, so should have provided a better non-answer. Later in his post, he understates how revealing telephone metadata can be (and of course doesn’t mention it can also include location). He even misstates how often the phone metadata collection has been queried (it was queried on 300 selectors, not “accessed only 300 times”).

But the really hackish part of his argument is in pretending this whole exchange started on March 12.

It didn’t. It started over a year ago and continued through last week when Keith Alexander had to withdraw a “fact sheet” purporting to lay out the “Section 702 protections” Americans enjoy (see below for links to these exchanges).

The exchange didn’t start out very well, with two Inspectors General working to ensure that Wyden and Mark Udall would not get their unclassified non-answer about how many Americans are surveilled under Section 702’s back door until after the Intelligence Committee marked up the bill.

But perhaps the signature exchange was this October 10, 2012 Wyden letter (with 3 other Senators) to Keith Alexander and Alexander’s November 5, 2012 response.

On July 27, 2012, Alexander put on a jeans-and-t-shirt costume and went to DefCon to suck up to hackers. After giving a schmaltzy speech including lines like, “we can protect the networks and have civil liberties and privacy,” DefCon founder Jeff Moss asked Alexander about recent Bill Binney allegations that the NSA was collecting communications of all Americans. Wired reported the exchange here.

It was this exchange — Keith Alexander’s choice to make unclassified statements to a bunch of hackers he was trying to suck up to — that underlies Wyden’s question. And Wyden explicitly invoked Alexander’s comments in his March 12 question to Clapper.

In Wyden’s letter, he quoted this, from Alexander.

We may, incidentally, in targeting a bad guy hit on somebody from a good guy, because there’s a discussion there. We have requirements from the FISA Court and the Attorney General to minimize that, which means nobody else can see it unless there’s a crime that’s been committed.

Wyden then noted,

We believe that this statement incorrectly characterized the minimization requirements that apply to the NSA’s FISA Amendments Act collection, and portrays privacy protections for Americans’ communications as being stronger than they actually are.

This is almost precisely the exchange that occurred last week, when Wyden and Udall had to correct Alexander’s public lies about Section 702 protections again. 8 months later and Alexander is reverting to the same lies about protections for US Persons.

In the letter, Wyden quoted from Alexander again,

You also stated, in response to the same question, that “…the story that we have millions or hundreds of millions of dossiers on people is absolutely false. We are not entirely clear what the term “dossier” means in this context, so we would appreciate it if you would clarify this remark.

And asked,

Are you certain that the number of American communications collected is not “millions or hundreds of millions”? If so, then clearly you must have some ability to estimate the scale of this number, at least some range in which you believe it falls. If this is the case, how large could this number possibly be? How small could it possibly be?

Does the NSA collect any type of data at all on “millions or hundreds of millions of Americans”?

This last question was precisely the question Wyden asked Clapper 5 months later on March 12 (Alexander’s response in November didn’t even acknowledge this question — he just blew it off entirely).

As Wyden emphasized, Alexander is the one who chose to make misleading assertions in unclassified form, opening up the door for demands for an unclassified response.

Since you made your remarks in an unclassified forum, we would appreciate an unclassified response to these questions, so that your remarks can be properly understood by Congress and the public, and not interpreted in a misleading way.

In other words, Brenner presents the context of Wyden’s question to Clapper completely wrong. He pretends this exchange was about one cleared person setting up another cleared person to answer a question. But Brenner ignores (Wyden’s clear invocation of it notwithstanding) that this exchange started when a cleared person, General Alexander, chose to lie to the public.

And now that we’ve seen the minimization standards, we know just how egregious a lie Alexander told to the hackers at DefCon. It’s bad enough that Alexander didn’t admit that anything that might possibly have a foreign intelligence purpose could be kept and, potentially, disseminated, a fact that would affect all Americans’ communications.

But Alexander was talking to high level hackers, probably the group of civilians who encrypt their online communications more than any other.

And Alexander knows that the NSA keeps encrypted communications indefinitely, and with his say-so, can keep them even if they’re known to be entirely domestic communications.

In other words, in speaking to the group of American civilians whose communications probably get the least protections from NSA (aside from the encryption they themselves give it), Alexander suggested their communications would only be captured if they were talking to bad guys. But the NSA defines “those who encrypt their communications” as bad guys by default.

He was trying to suck up to the hackers, even as he lied about the degree to which NSA defines most of them as bad guys.

Brenner gets all upset about his colleagues being “forced” to lie in public. But that’s not what’s going on here: James Clapper and, especially, Keith Alexander are choosing to lie to the public.

And if it is vicious for an intelligence overseer to call IC officials on willful lies to the public, then we’ve got a very basic problem with democracy. Read more

ACLU, Another Civil Liberties Narcissist, Defends Its Own Freedom of Assembly, Speech

Since the Edward Snowden leaks first started, many have called him and Glenn Greenwald narcissists (as if that changed the dragnet surveillance they exposed).

If that’s right, I can think of nothing more narcissistic than ACLU, which is a Verizon customer, suing the government for collecting their call records and chilling their ability to engage in activism.

The American Civil Liberties Union and the New York Civil Liberties Union today filed a constitutional challenge to a surveillance program under which the National Security Agency vacuums up information about every phone call placed within, from, or to the United States. The lawsuit argues that the program violates the First Amendment rights of free speech and association as well as the right of privacy protected by the Fourth Amendment. The complaint also charges that the dragnet program exceeds the authority that Congress provided through the Patriot Act.

“This dragnet program is surely one of the largest surveillance efforts ever launched by a democratic government against its own citizens,” said Jameel Jaffer, ACLU deputy legal director. “It is the equivalent of requiring every American to file a daily report with the government of every location they visited, every person they talked to on the phone, the time of each call, and the length of every conversation. The program goes far beyond even the permissive limits set by the Patriot Act and represents a gross infringement of the freedom of association and the right to privacy.”

Here’s the complaint.

In addition to this suit, Jeff Merkley and others are submitting a bill to force the government to release its secret law.

If Wanting to Reveal that All Americans’ Metadata Gets Swept Up Is Treason, Edward Snowden Is in Distinguished Company

Earlier this evening, Dianne Feinstein called Edward Snowden’s decision to leak NSA documents an act of treason.

“I don’t look at this as being a whistleblower. I think it’s an act of treason,” the chairwoman of the Senate Intelligence Committee told reporters.

The California lawmaker went on to say that Snowden had violated his oath to defend the Constitution.

“He violated the oath, he violated the law. It’s treason.”

Perhaps DiFi can be excused for her harsh judgment. After all, in addition to exposing the sheer range of surveillance our government is doing, Snowden made it very clear that DiFi allowed Director of National Intelligence James Clapper to lie to her committee.

And continues to allow Clapper’s lie to go unreported, much less punished.

But I thought it worthwhile to point out the many people who have committed to make the FISA Court Opinions describing, among other things, how the government’s abuse of Section 215 violated the Constitution.

In 2010, DOJ promised to try to declassify important rulings of law.

In 2010, as part of the same effort, Clapper’s office promised to try to declassify important rulings of law.

In 2011, prior to be confirmed as Assistant Attorney General, now White House Homeland Security Advisor Lisa Monaco promised, “I will work to ensure that the Department continues to work with the ODNI to make this important body of law as accessible as possible.”

All these people claimed they wanted to make FISC’s opinion, among other things, on the secret use of Section 215 public.

What Snowden released on Section 215 — just a single 215 order to Verizon, without details on how this information is used — is far, far less than what DOJ and ODNI and Lisa Monaco pledged to try to release. Given that the collection is targeted on every single American indiscriminately, it won’t tell the bad guys anything (except that they’ve been sucked into the same dragnet the rest of us have). And while it shows that FBI submits the order but the data gets delivered to NSA (which has some interesting implications), that’s a source and method to game the law, not the source or method used to identify terrorists.

So if Snowden committed treason, he did so doing far less than top members of our National Security establishment promised to do.

Wait.

There’s one more member of this gang of — according to DiFi — traitors committed to tell Americans how their government spies on them. There’s the Senator who said this on December 27, 2012.

I have offered to Senator Merkley to write a letter requesting declassification of more FISA Court opinions. If the letter does not work, we will do another intelligence authorization bill next year, and we can discuss what can be added to that bill on this issue.

Oh, wait! That was Senator Dianne Feinstein, arguing that they didn’t have time to pass an actual amendment, attached to the actual FISA Amendments Act renewal, forcing the government to turn over this secret law.

But she promised to write a letter!

And even, DiFi claimed (though similar promises to John Cornyn to obtain the OLC memo authorizing Anwar al-Awlaki’s killing went undelivered), to include a requirement in this year’s intelligence authorization requiring the government to turn over far more information on the government’s use of Section 215 than Snowden did.

I get that DiFi doesn’t agree with his method — that he leaked this rather than (!) write a letter. I get that Snowden has exposed DiFi for allowing Clapper lie to her committee, in part to hide precisely this information.

But in debates in the Senate, at least, DiFi has claimed to support releasing just this kind of information.

That Makes Over 21 Requests by 31 Members of Congress, Mr. President

Adding the letter that Barbara Lee, as well as a list of all Members of Congress who have, at one time or another, requested the targeted killing memos.

February 2011: Ron Wyden asks the Director of National Intelligence for the legal analysis behind the targeted killing program; the letter references “similar requests to other officials.” (1) 

April 2011: Ron Wyden calls Eric Holder to ask for legal analysis on targeted killing. (2)

May 2011: DOJ responds to Wyden’s request, yet doesn’t answer key questions.

May 18-20, 2011: DOJ (including Office of Legislative Affairs) discusses “draft legal analysis regarding the application of domestic and international law to the use of lethal force in a foreign country against U.S. citizens” (this may be the DOJ response to Ron Wyden).

October 5, 2011: Chuck Grassley sends Eric Holder a letter requesting the OLC memo by October 27, 2011. (3)

November 8, 2011: Pat Leahy complains about past Administration refusal to share targeted killing OLC memo. Administration drafts white paper, but does not share with Congress yet. (4) 

February 8, 2012: Ron Wyden follows up on his earlier requests for information on the targeted killing memo with Eric Holder. (5)

March 7, 2012: Tom Graves (R-GA) asks Robert Mueller whether Eric Holder’s criteria for the targeted killing of Americans applies in the US; Mueller replies he’d have to ask DOJ. Per his office today, DOJ has not yet provided Graves with an answer. (6) 

March 8, 2012: Pat Leahy renews his request for the OLC memo at DOJ appropriations hearing.(7)

June 7, 2012: After Jerry Nadler requests the memo, Eric Holder commits to providing the House Judiciary a briefing–but not the OLC memo–within a month. (8)

June 12, 2012: Pat Leahy renews his request for the OLC memo at DOJ oversight hearing. (9)

June 22, 2012: DOJ provides Intelligence and Judiciary Committees with white paper dated November 8, 2011.

June 27, 2012: In Questions for the Record following a June 7 hearing, Jerry Nadler notes that DOJ has sought dismissal of court challenges to targeted killing by claiming “the appropriate check on executive branch conduct here is the Congress and that information is being shared with Congress to make that check a meaningful one,” but “we have yet to get any response” to “several requests” for the OLC memo authorizing targeted killing. He also renews his request for the briefing Holder had promised. (10)

July 19, 2012: Both Pat Leahy and Chuck Grassley complain about past unanswered requests for OLC memo. (Grassley prepared an amendment as well, but withdrew it in favor of Cornyn’s.) Leahy (but not Grassley) votes to table John Cornyn amendment to require Administration to release the memo.

July 24, 2012: SSCI passes Intelligence Authorization that requires DOJ to make all post-9/11 OLC memos available to the Senate Intelligence Committee, albeit with two big loopholes.

December 4, 2012: Jerry Nadler, John Conyers, and Bobby Scott ask for finalized white paper, all opinions on broader drone program (or at least a briefing), including signature strikes, an update on the drone rule book, and public release of the white paper.

December 19, 2012: Ted Poe and Tredy Gowdy send Eric Holder a letter asking specific questions about targeted killing (not limited to the killing of an American), including “Where is the legal authority for the President (or US intelligence agencies acting under his direction) to target and kill a US citizen abroad?”

January 14, 2013: Wyden writes John Brennan letter in anticipation of his confirmation hearing, renewing his request for targeted killing memos. (11)

January 25, 2013: Rand Paul asks John Brennan if he’ll release past and future OLC memos on targeting Americans. (12)

February 4, 2013: 11 Senators ask for any and all memos authorizing the killing of American citizens, hinting at filibuster of national security nominees. (13)

February 6, 2013: John McCain asks Brennan a number of questions about targeted killing, including whether he would make sure the memos are provided to Congress. (14)

February 7, 2013Pat Leahy and Chuck Grassley ask that SJC be able to get the memos that SSCI had just gotten. (15)

February 7, 2013: In John Brennan’s confirmation hearing, Dianne Feinstein and Ron Wyden reveal there are still outstanding memos pertaining to killing Americans, and renew their demand for those memos. (16)

February 8, 2013: Poe and Gowdy follow up on their December 19 letter, adding several questions, particularly regarding what “informed, high level” officials make determinations on targeted killing criteria.

February 8, 2013: Bob Goodlatte, Trent Franks, and James Sensenbrenner join their Democratic colleagues to renew the December 4, 2012 request. (17)

February 12, 2013: Rand Paul sends second letter asking not just about white paper standards, but also about how National Security Act, Posse Commitatus, and Insurrection Acts would limit targeting Americans within the US.

February 13, 2013: In statement on targeted killings oversight, DiFi describes writing 3 previous letters to the Administration asking for targeted killing memos. (18, 19, 20)

February 20, 2013: Paul sends third letter, repeating his question about whether the President can have American killed inside the US.

February 27, 2013: At hearing on targeted killing of Americans, HJC Chair Bob Goodlatte — and several other members of the Committee — renews request for OLC memos. (21)

March 11, 2013: Barbara Lee and 7 other progressives ask Obama to release “in an unclassified form, the full legal basis of executive branch claims” about targeted killing, as well as the “architecture” of the drone program generally. (22)

All Members of Congress who have asked about Targeted Killing Memos and/or policies

  1. Ron Wyden
  2. Dianne Feinstein
  3. Saxby Chambliss
  4. Chuck Grassley
  5. Pat Leahy
  6. Tom Graves
  7. Jerry Nadler
  8. John Conyers
  9. Bobby Scott
  10. Ted Poe
  11. Trey Gowdy
  12. Rand Paul
  13. Mark Udall
  14. Dick Durbin
  15. Tom Udall
  16. Jeff Merkley
  17. Mike Lee
  18. Al Franken
  19. Mark Begich
  20. Susan Collins
  21. John McCain
  22. Bob Goodlatte
  23. Trent Franks
  24. James Sensenbrenner
  25. Barbara Lee
  26. Keith Ellison
  27. Raul Grijalva
  28. Donna Edwards
  29. Mike Honda
  30. Rush Holt
  31. James McGovern

Will Senators Filibuster Chuck Hagel’s Nomination to Get the Targeted Killing Memo?

Eleven Senators just sent President Obama a letter asking nicely, for at least the 12th time, the targeted killing memo. They remind him of his promise of transparency and oversight.

In your speech at the National Archives in May 2009, you stated that “Whenever we cannot release certain information to the public for valid national security reasons, I will insist that there is oversight of my actions — by Congress or by the courts.” We applaud this principled commitment to the Constitutional system of checks and balances, and hope that you will help us obtain the documents that we need to conduct the oversight that you have called for. The executive branch’s cooperation on this matter will help avoid an unnecessary confrontation that could affect the Senate’s consideration of nominees for national security positions. 

And asks — yet again — for “any and all memos.”

Specifically, we ask that you direct the Justice Department to provide Congress, specifically the Judiciary and Intelligence Committees, with any and all legal opinions that lay out the executive branch’s official understanding of the President’s authority to deliberately kill American citizens.

But perhaps the most important part of this letter is that it refers not just to John Brennan’s nomination, but to “senior national security positions.”

As the Senate considers a number of nominees for senior national security positions, we ask that you ensure that Congress is provided with the secret legal opinions outlining your authority to authorize the killing of Americans in the course of counterterrorism operations.

There are just 11 Senators on this list:

  • Ron Wyden (D-Ore.)
  • Mike Lee (R-Utah)
  • Mark Udall (D-Colo.)
  • Chuck Grassley (R-Iowa)
  • Jeff Merkley (D-Ore.)
  • Susan Collins (R-Maine)
  • Dick Durbin (Ill.)
  • Patrick Leahy (D-Vt.)
  • Tom Udall (D-N.M.)
  • Mark Begich (D-Alaska)
  • Al Franken (D- Minn.)

And just three of these — Wyden, Mark Udall, and Collins — are on the Intelligence Committee. That’s not enough to block Brennan’s confirmation.

But it may be enough to block Hagel’s confirmation, given all the other Republicans who are opposing him.