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How to Spy on Carter Page

I have no personal knowledge of the circumstances surrounding the alleged wiretapping of Carter Page, aside from what WaPo and NYT have reported. But, in part because the release of the new, annual FISC report has created a lot of confusion, I wanted to talk about the legal authorities that might have been involved, as a way of demonstrating (my understanding, anyway, of) how FISA works.

FISC did not (necessarily) reject more individual orders last year

First, let’s talk about what the FISC report is. It is a new report, mandated by the USA Freedom Act. As the report itself notes, because it is new (a report covering the period after passage of USAF), it can’t be compared with past years. More importantly, because the FISA Court uses a different (and generally more informative) reporting approach, you cannot — as both privacy groups and journalists erroneously have — compare these numbers with the DOJ report that has been submitted for years (or even the I Con the Record report that ODNI has released since the Snowden leaks); that’s effectively an apples to grapefruit comparison. Those reports should be out this week, which (unless the executive changes its reporting method) will tell us how last year compared with previous years.

But comparing last year’s report to the report from the post-USAF part of 2015 doesn’t sustain a claim that last year had record rejections. If we were to annualize last year’s report (covering June to December 2015) showing 5 rejected 1805/1824 orders (those are the individual orders often called “traditional FISA”) across roughly 7 months, it is actually more (.71 rejected orders a month or .58% of all individual content applications) than the 8 rejected 1805/1824 orders last year (.67 rejected orders a month or .53% of all individual content applications). In 2016, the FISC also rejected an 1861 order (better known as Section 215), but we shouldn’t make too much of that either given that that authority changed significantly near the end of 2015, plus we don’t have this counting methodology for previous years (as an example, 2009 almost surely would have at least one partial rejection of an entire bulk order, when Reggie Walton refused production of Sprint records in the summertime).

Which is a long-winded way of saying we should not assume that the number of traditional content order rejections reflects the reports that FBI applied for orders on four Trump associates but got rejected (or maybe only got one approved for Page). As far as we can tell from this report, 2016 had a similar number of what FISC qualifies as rejections as 2015.

The non-approval of Section 702 certificates has no bearing on any Russian-related spying, which means Page would be subject to back door searches

Nor should my observation — that the FISC did not approve any certifications for 1881a (better known as Section 702, which covers both upstream and PRISM) reflect on any Carter Page surveillance. Given past practice when issues delayed approvals of certifications, it is all but certain FISC just extended the existing certifications approved in 2015 until the matters that resulted in an at least 2 month delay were resolved.

Moreover, the fact that the number of certificates (which is probably four) is redacted doesn’t mean anything either: it was redacted last year as well. That number would be interesting because it would permit us to track any expansions in the application of FISA 702 to new uses (perhaps to cover cybersecurity, or transnational crime, for example). But the number of certificates pertains to the number of people targeted only insofar as any additional certificates represent one more purpose to use Section 702 on.

In any case, Snowden documents, among other things, show that a “foreign government” certificate has long been among the existing certificates. So we should assume that the NSA has collected the conversations of known or suspected Russian spies located overseas conducted on PRISM providers; we should also assume that as a counterintelligence issue implicating domestic issues, these intercepts are routinely shared in raw form with FBI. Therefore, unless last year’s delay involved FBI’s back door searches, we should assume that when the FBI started focusing on Carter Page again last spring or summer, they would have routinely searched on his known email addresses and phone numbers in a federated search and found any PRISM communications collected. In the same back door search, they would have also found any conversations Page had with Russians targeted domestically, such as Sergey Kislyak.

The import of the breakdown between 1805 and 1824

Perhaps the most important granular detail in this report — one that has significant import for Carter Page — is the way the report breaks down authorizations for 1805 and 1824.

1805 covers electronic surveillance — so the intercept of data in motion. It might be used to collect phone calls and other telephony communication, as well as (perhaps?) email communication collected via upstream collection (that is, non-PRISM Internet communication that is not encrypted); it may well also cover prospective PRISM and other stored communication collection. 1824 covers “physical search,” which when it was instituted probably covered primarily the search of physical premises, like a house or storage unit. But it now also covers the search of stored communication, such as someone’s Gmail or Dropbox accounts. In addition, a physical search FISA order covers the search of hard drives on electronic devices.

As we can see for the first time with these reports, most individual orders cover both 1805 and 1824 (92% last year, 88% in 2015), but some will do just one or another. (I wonder if FBI sometimes gets one kind of order to acquire evidence to get the other kind?)

As filings in the Keith Gartenlaub case make clear, “physical search” conducted under a FISA order can be far more expansive than the already overly expansive searches of devices under a Title III warrant. Using a FISA 1824 order, FBI Agents snuck into Gartenlaub’s house and imaged the hard drives from a number of his devices, ostensibly looking for proof he was spying on Boeing for China. They found no evidence to support that. They did, however, find some 9-year old child pornography files, which the government then “refound” under a criminal search warrant and used to prosecute him. Among the things Gartenlaub is challenging on appeal is the breadth of that original FISA search.

Consider how this would work with Carter Page. The NYT story on the Page order makes it clear that FBI waited until Page had left the Trump campaign before it requested an order covering him.

The Foreign Intelligence Surveillance Court issued the warrant, the official said, after investigators determined that Mr. Page was no longer part of the Trump campaign, which began distancing itself from him in early August.

I suspect this is a very self-serving description on the part of FBI sources, particularly given reports that FISC refused orders on others. But regardless of whether FISC or the FBI was the entity showing discretion, let’s just assume that someone was distinguishing any communications Page may have had while he was formally tied to the campaign from those he had after — or before.

This is a critical distinction for stored communications because (as the Gartenlaub case makes clear) a search of a hard drive can provide evidence of completely unrelated crime that occurred nine years in the past; in Gartenlaub’s case, they reportedly used it to try to get him to spy on China and they likely would do the equivalent for Page if they found anything. For Page, a search of his devices or stored emails in September 2016 would include emails from during his service on Trump’s campaign, as well as emails between the time Page was interviewed by FBI on suspicion of being recruited by Victor Podobnyy and the time he started on the campaign, as well as communications going back well before that. So if FISC (or, more generously, the FBI) were trying to exclude materials from during the campaign, that might involve restrictions built into the request or the final order

The report covering 2016 for the first time distinguishes between orders FISC modifies (FISC interprets this term more broadly than DOJ has in its reports) and orders FISC partly denies. FISC will modify an order to, among other things,

(1) impos[e] a new reporting requirement or modifying one proposed by the government;

(2)  chang[e] the description or specification of a targeted person, of a facility to be subjected to electronic surveillance or of property to be searched;

(3)  modify[] the minimization procedures proposed by the government; or

(4)  shorten[] the duration of some or all of the authorities requested

Using Page as an example, if the FISC were permitting FBI to obtain communications from before the time Page joined the campaign but not during it, it might modify an order to require additional minimization procedures to ensure that none of those campaign communications were viewed by the FBI.

The FISC report explains that the court will partly deny orders and “by approving some targets, some facilities, places, premises, property or specific selection terms, and/or some forms of collection, but not others.” Again, using Page as an example, if the court wanted to really protect the election related communications, it might permit a search of Page’s homes and offices under 1824, but not his hard drives, making any historic searches impossible.

There’s still no public explanation of how Section 704/Section 705b work, which would impact Page

Finally, the surveillance of Carter Page implicates an issue that has been widely discussed during and since passage of the FISA Amendments Act in 2008, but not in a way that fully supports a democratic debate: how NSA spies on Americans overseas.

Obviously, the FBI would want to spy on Page both while he was in the US, but especially when he was traveling abroad, most notably on his frequent trips to Russia.

The FISA Amendments Act for the first time required the NSA to obtain FISC approval before doing that. As I explain in this post, for years, public debate has claimed that was done under Section 703 (1881b in this report). But abundant evidence shows it is all done under 704 (1881c in this report). The biggest difference between the two, according to an internal NSA document, is the government doesn’t explain its methods in the latter case. With someone who would be spied on both in the US and overseas, that spying would be done under 705b (conducted under 1881d section b), which permits the AG to approve of spying overseas (effectively, 704 authority) for those already approved under a traditional order.

This matters in the context of spying on Carter Page for two reasons. First, as noted government doesn’t share details about how it spies overseas with the court. And some of the techniques we know NSA to use — such as XKeyscore searches drawing on bulk overseas collection — would seem to present additional privacy concerns on top of the domestic authorities. If the FBI (or more likely, the FISC) is going to try to bracket off any communications that occur during the period Page was associated with the campaign, that would have to be done for overseas surveillance as well, most critically, for Page’s July trip to Russia.

This report shows that 704, like the domestic authorities, also gets modified sometimes, so it may be that FISC did just that — permitted NSA to collect information covering that July meeting, but imposed some minimization procedures to protect the campaign.

But it’s unclear whether the court would have an opportunity to do so for 705b, which derives from Attorney General authorization, not court authorization. I assume that’s why 1881d was not included in this reporting requirement, but it seems adding 705b reporting to Title VII reauthorization this year would be a fairly minor change, but one that might reveal how often the government uses more powerful overseas spying techniques on Americans. It’s unclear to me, for example, whether any modifications or partial approvals the FISC made on a joint 1805/1824 order covering Page would translate into a 705b order, particularly if the modifications in question included additional reporting to the FISC.

Carter Page might one day be the first American to get review of his FISA dossier

All of which is why, no matter what you think of Carter Page’s alleged role in influencing the Trump campaign to favor Russia, I hope he one day gets to review his FISA dossier.

No criminal defendant has ever gotten a review of the FISA materials behind the spying, in spite of clear Congressional intent, when the law was passed in 1978, to allow that in certain cases. Because of the publicity surrounding this case, and the almost unprecedented leaking about FISA orders, Page stands a better chance than anyone else of getting such review (particularly if, as competing stories from CNN and Business Insider claim, the dossier formed a key, potentially uncorroborated part of the case against him). Whatever else happens with this case, I think Page should get that review.

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

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

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

Thoughts on the NYT Comey Blockbuster

The NYT has a big piece on Jim Comey’s involvement in the election you should definitely read. Rather than share my thoughts in a tweet storm I thought I’d share here so we can all gab about it.

Consensus coming closer to Jim Comey being self-righteous

As long time readers know, I think Jim Comey is self-righteous. He creates a heroic self-image that is often overblown (as it was regarding the post hospital hero events). So I was happy to see this paragraph — and observations matching it — through out the story.

Mr. Comey made those decisions with the supreme self-confidence of a former prosecutor who, in a distinguished career, has cultivated a reputation for what supporters see as fierce independence, and detractors view as media-savvy arrogance.

Comey deserves all the criticism he has gotten for his statements about the Hillary investigation. But we’re stuck with Comey for now; he’s one of the few checks against Trump’s arbitrary rule (and Comey is enough of a media hound to be able to create the space to conduct the investigation into Trump).

But one way or another I’m happy people are beginning to understand Comey not as the hospital hero, nor as a partisan, but as someone who doesn’t (or didn’t?) assess his own actions with a fair measure.

The secret David Margolis meeting

One of two really interesting new details in this story is that, when Comey was trying to decide what to do, he consulted with David Margolis, who has long been treated as the conscience of DOJ by DOJers. (See this bmaz post for more background on Margolis.)

Mr. Comey sought advice from someone he has trusted for many years. He dispatched his deputy to meet with David Margolis, who had served at the Justice Department since the Johnson administration and who, at 76, was dubbed the Yoda of the department.

What exactly was said is not known. Mr. Margolis died of heart problems a few months later. But some time after that meeting, Mr. Comey began talking to his advisers about announcing the end of the Clinton investigation himself, according to a former official.

This meeting (and the description of how they staged Margolis’ funeral so the DOJ people criticizing Comey wouldn’t have to share a stage with him) plays a weird role in the story, as if just the mention of the meeting serves to exonerate Comey’s terrible decision to announce the end of the Hillary investigation.

But what the story doesn’t note is that Comey was effectively consulting with the person who for years always intervened to make sure DOJ’s lawyers don’t get held accountable for their misconduct (most notably, he did this for John Yoo). Now, I’m not sure whether as FBI Director Comey’s behavior might have been reviewed by the Office of Professional Responsibility; as it happens DOJ IG is doing so. But it is not ethical to have the guy who, later on, would bless your actions, bless them before the fact. It’s like getting pre-approval to break the rules.

Loretta Lynch should have recused

One of the details others find most interesting is that the FBI acted as they did, in part, because a Democratic operative suggested in an email that Loretta Lynch would ensure nothing came of the investigation.

During Russia’s hacking campaign against the United States, intelligence agencies could peer, at times, into Russian networks and see what had been taken. Early last year, F.B.I. agents received a batch of hacked documents, and one caught their attention.

The document, which has been described as both a memo and an email, was written by a Democratic operative who expressed confidence that Ms. Lynch would keep the Clinton investigation from going too far, according to several former officials familiar with the document.

Read one way, it was standard Washington political chatter. Read another way, it suggested that a political operative might have insight into Ms. Lynch’s thinking.

Normally, when the F.B.I. recommends closing a case, the Justice Department agrees and nobody says anything. The consensus in both places was that the typical procedure would not suffice in this instance, but who would be the spokesman?

The document complicated that calculation, according to officials. If Ms. Lynch announced that the case was closed, and Russia leaked the document, Mr. Comey believed it would raise doubts about the independence of the investigation.

I’ve got a slew of hacking related questions about this document — starting with why it hasn’t, as far as I know, been leaked. The described timing as “early last year” suggests that it may have been hacked in the FSB phase of the hacking. But the document would have solidified the narrative the Russians were reportedly fostering about Hillary.

The article doesn’t pursue those questions, but it notes that in response to finding it, Comey did not ask Lynch to recuse. He should have. You recuse whether or not there’s basis for recusal but because of appearances as well. Moreover, so much awfulness could have been avoided had she recused. This was one of the big own goals of this whole mess.

CIA Directors should not meet with just one Gang of Eight member

The second detail I find most interesting in this story is that John Brennan privately briefed Harry Reid about his concerns about the Russians.

John O. Brennan, the C.I.A. director, was so concerned about the Russian threat that he gave an unusual private briefing in the late summer to Harry Reid, then the Senate Democratic leader.

Top congressional officials had already received briefings on Russia’s meddling, but the one for Mr. Reid appears to have gone further. In a public letter to Mr. Comey several weeks later, Mr. Reid said that “it has become clear that you possess explosive information about close ties and coordination between Donald Trump, his top advisors, and the Russian government — a foreign interest openly hostile to the United States.”

While I’m generally sympathetic to Democrats’ complaints that DOJ should have either remained silent about both investigations or revealed both of them, it was stupid for Brennan to give this private briefing (and I hope he gets grilled about it by HPSCI when he testifies in a few weeks). In addition to the things Reid said publicly about the investigation, it’s fairly clear he and his staffers were also behind some of the key leaks here (and, as CNN reported yesterday, leaks about the investigation actually led targets of it to alter their behavior). For reasons beyond what appears in this story, I think it likely Reid served as a cut-out for Brennan.

And that’s simply not appropriate. There may well have been reasons to avoid briefing Richard Burr (who was advising Trump). But spooks should not be sharing information with just one party. CIA did so during its torture cover-up in ways that are particularly troubling and I find this — while not as bad — equally problematic.

Two missing details: the leaks and the delayed notice to Congress

While this is already a comprehensive story (though its telling of October 7 omits key details), there are two parts that seem critical that are missing: the flood of leaks from FBI and the decision to delay notifying the Gang of Four of the CI investigation.

This week, CNN reported that the FBI was “clarifying” an earlier policy fostering more contact between FBI employees with the media in response to leaks about the Trump campaign. (Click through to read about the TV series coming out focusing on FBI heroism that the FBI exercised editorial control over!!!)

The FBI is overhauling its media policy, restricting contacts between the news media and its employees amid controversy over alleged leaks, bureau officials told CNN.

The new media policy was rolled out this week at a conference in Washington attended by FBI special agents in charge of its 56 field offices, according to officials who attended.
Media access to top officials at the FBI became more common in recent years under FBI Director James Comey, part of a transparency effort he said was aiming at demystifying the FBI and helping the public understand its mission. But the new policy appears to curtail that access.
An official familiar with the development of the new policy described it as largely a “clarification” intended to reinforce existing rules on who is authorized to talk to reporters, not a step back from Comey’s transparency initiatives.

Not only should this policy have been put in place before people leaked details of FISA orders, but it should have been put in place in early 2016, when it was clear FBI Agents were leaking details of the Hillary investigation to try to force their supervisors to expand its scope to include the Clinton Foundation.

Instead, the possibility that FBI Agents would leak was one of the reasons why Comey did what he did. The correct thing, instead of making unprecedented public statements as he did, would have been to shut down the leaking.

Additionally, according to Comey’s testimony, FBI actually delayed notifying at least the heads of the Intelligence Committees  until fairly recently. The NYT acknowledges that this detail was hidden. But I’d love to understand how this departure from normal briefing affected all the other decisions (particularly in light of the the Brennan meeting).

In any case, read the whole thing. It’s very frustrating. But it also lays out a series of things that Comey — and other Obama officials — should have done differently.

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

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

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

Why Susan Rice May Be a Shiny Object

A bunch of Republican propagandists are outraged that the press isn’t showing more interest in PizzaGate Mike Cernovich’s “scoop” that the woman in charge of ensuring our national security under President Obama, then National Security Advisor Susan Rice, sought to fully understand the national security intercepts she was being shown.

There are two bases for their poutrage, which might have merit — but coming from such hacks, may not.

The first is the suggestion, based off Devin Nunes’ claim (and refuted by Adam Schiff) that Rice unmasked things she shouldn’t have. Thus far, the (probably illegally) leaked details — such as that family members, perhaps like Jared Kushner (who met with an FSB officer turned head of a sanctioned Russian bank used as cover for other spying operations), Sean Hannity (who met with an already-targeted Julian Assange at a time he was suspected of coordinating with Russians), and Erik Prince (who has literally built armies for foreign powers) got spied on — do nothing but undermine Nunes’ claims. All the claimed outrageous unmaskings actually seem quite justifiable, given the accepted purpose for FISA intercepts.

The other suggestion — and thus far, it is a suggestion, probably because (as I’ll show) it’s thus far logically devoid of evidence — is that because Rice asked to have the names of people unmasked, she must be the person who leaked the contents of the intercepts of Sergey Kislyak discussing sanctions with Mike Flynn. (Somehow, the propagandists always throw Ben Rhodes’ name in, though it’s not clear on what basis.)

Let me start by saying this. Let’s assume those intercepts remained classified when they were leaked. That’s almost certain, but Obama certainly did have the authority to declassify them, just as either George Bush or Dick Cheney allegedly used that authority to declassify Valerie Plame’s ID (as some of these same propagandists applauded back in the day). But assuming the intercepts did remain classified, I agree that it is a problem that they were leaked by nine different sources to the WaPo.

But just because Rice asked to unmask the identities of various Trump (and right wing media) figures doesn’t mean she and Ben Rhodes are the nine sources for the WaPo.

That’s because the information on Flynn may have existed in a number of other places.

Obviously, Rice could not have been the first person to read the Flynn-Kislyak intercepts. That’s because some analyst(s) would have had to read them and put them into a finished report (most, but not all, of Nunes’ blathering comments about these reports suggest they were finished intelligence). Assuming those analysts were at NSA (which is not at all certain) someone would have had to have approved the unmasking of Flynn’s name before Rice saw it.

In addition, it is possible — likely even, at least by January 2017, when we know people were asking why Russia didn’t respond more strongly to Obama’s hacking sanctions — that there were two other sets of people who had access to the raw intelligence on Flynn’s conversations with Kislyak: the CIA and, especially, the FBI, which would have been involved in any FISA-related collection. Both CIA and FBI can get raw data on topics they’re working on. Likely, in this case, the multi-agency task force was getting raw collection related to their Russian investigation.

And as I’ve explained, as soon as FBI developed a suspicion that either Kislyak was at the center of discussions on sanctions or that Flynn was an unregistered agent of multiple foreign powers, the Special Agents doing that investigation would routinely pull up everything in their databases on those people by name, which would result in raw Title I and 702 FISA collection (post January 3, it probably began to include raw EO 12333 data as well).

So already you’re up to about 15 to 20 people who would have access to the raw intercepts, and that’s before they brief their bosses, Congress (though the Devin Nunes and Adam Schiff briefing, at least, was delayed a bit), and DOJ, all the way up to Sally Yates, who wanted to warn the White House. Jim Comey has suggested it is likely that the nine sources behind the WaPo story were among these people briefed secondarily on the intercepts. And it’s worth noting that David Ignatius, who first broke the story of Flynn’s chats with Kislyak but was not credited on the nine source story, has known source relationships in other parts of the government than the National Security Advisor, though he also has ties to Rice.

All of which is to say that the question of who leaked the contents of Mike Flynn’s conversations with Sergey Kislyak is a very different question from whether Susan Rice’s requests to unmask Trump associates’ names were proper or not. It is possible that Rice leaked the intercepts without declassifying them first. But it’s also possible that any of tens of other people did, most of whom would have a completely independent channel for that information.

And the big vulnerability is not — no matter what Eli Lake wants to pretend — the unmasking of individual names by the National Security Advisor. Rather, it’s that groups of investigators can access the same intelligence in raw form without a warrant tied to the American person in question.

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

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

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

What Was the Relationship Between FSB and GRU in the DNC Hack, Redux?

I want to return to last week’s House Intelligence Hearing on Russia (because that fecker Devin Nunes canceled my birthday hearing with James Clapper and John Brennan today), to revisit a question I’ve asked a number of times (in most detail here): what was the relationship between Russia’s FSB and GRU intelligence services in the DNC hack?

The public narrative (laid out in this post) goes like this: Sometime in summer 2015, APT (Advanced Persistent Threat) 29 (associated with FSB, Russia’s top intelligence agency) hacked the DNC along with 1,000 other targets and because DNC ignored FBI’s repeated warnings, remained in their network unnoticed. Then, in March 2016, APT 28 (generally though not universally associated with GRU, Russia’s military intelligence) hacked DNC and John Podesta. According to the public story, GRU oversaw the release (via DC Leaks and Guccifer 2.0) and leaking (to Wikileaks via as-yet unidentified cut-outs) of the stolen documents.

Under the public story, then, FSB did the same kind of thing the US does (for example, with Enrique Peña Nieto in 2012), collecting intelligence on a political campaign, whereas GRU did something new (though under FBI-directed Sabu, we did something similar to Bashar al-Assad in 2012), leaking documents to Wikileaks.

Obama’s sanctions to retaliate for the hack primarily focused on GRU, but did target FSB as well, though without sanctioning any FSB officers by name. And in its initial report on the Russian hack, the government conflated the two separate groups, renaming attack tools previously dubbed Cozy and Fancy Bear the “Grizzly Steppe,” making any detailed discussion of how they worked together more confusing. As I noted, however, the report may have offered more detail about what APT 29 did than what APT 28 did.

Last week’s hearing might have been an opportunity to clarify this relationship had both sides not been interested in partisan posturing. Will Hurd even asked questions that might have elicited more details on how this worked, but Admiral Mike Rogers refused to discuss even the most basic details  of the hacks.

HURD: Thank you, Chairman.

And gentlemen, thank you all for being here. And thank you for your continued service to your country. I’ve learned recently the value of sitting in one place for a long period of time and listening and today I’m has added to that understanding and I’m going to try to ask questions that y’all can answer in this format and are within your areas of expertise. And Director Rogers, my first question to you — the exploit that was used by the Russian’s to penetrate the DNC, was it sophisticated? Was it a zero day exploit? A zero day being some type of — for those that are watching, an exploit that has never been used before?

ROGERS: In an open unclassified forum, I am not going to talk about Russian tactics, techniques or procedures about how they executed their hacks.

HURD: If members of the DNC had not — let me rephrase this, can we talk about spear fishing?

ROGERS: Sure, in general terms, yes sir.

HURD: Spear fishing is when somebody sends an email and they — somebody clicks on something in that email…

ROGERS: Right, the user of things (inaudible) they’re receiving an email either of interest or from a legitimate user, they open it up and they’ll often click if you will on a link — an attachment.

HURD: Was that type of tactic used in the…

ROGERS: Again, I’m not in an unclassified forum just not going to be…

The refusal to discuss the most basic details of this hack — even after the government listed 31 reports describing APT 28 and 29 (and distinguishing between the two) in its updated report on the hacks — is weird, particularly given the level of detail DOJ released on the FSB-related hack of Yahoo. Given that the tactics themselves are not secret (and have been confirmed by FBI, regardless of what information NSA provided), it seems possible that the government is being so skittish about these details because they don’t actually match what we publicly know. Indeed, at least one detail I’ve learned about the documents Guccifer 2.0 leaked undermines the neat GRU-FSB narrative.

Comey did confirm something I’ve been told about the GRU side of the hack: they wanted to be found (whereas the FSB side of the hack had remained undiscovered for months, even in spite of FBI’s repeated efforts to warn DNC).

COMEY: The only thing I’d add is they were unusually loud in their intervention. It’s almost as if they didn’t care that we knew what they were doing or that they wanted us to see what they were doing. It was very noisy, their intrusions in different institutions.

There is mounting evidence that Guccifer 2.0 went to great lengths to implicate Russia in the hack. Confirmation GRU also went out of its way to make noise during the DNC hack may suggest both within and outside of the DNC the second hack wanted to be discovered.

I have previously pointed to a conflict between what Crowdstrike claimed in its report on the DNC hack and what the FBI told FireEye. Crowdstrike basically said the two hacking groups didn’t coordinate at all (which Crowdstrike took as proof of sophistication). Whereas FireEye said they did coordinate (which it took as proof of sophistication and uniqueness of this hack). I understand the truth is closer to the latter. APT 28 largely operated on its own, but at times, when it hit a wall of sorts, it got help from APT 29 (though there may have been some back and forth before APT 29 did share).

All of which brings me to two questions Elise Stefanik asked. First, she asked — casually raising it because it had “been in the news recently” — whether the FSB was collecting intelligence in its hack of Yahoo.

STEFANIK: Thank you. Taking a further step back of what’s been in the news recently, and I’m referring to the Yahoo! hack, the Yahoo! data breech, last week the Department of Justice announced that it was charging hackers with ties to the FSB in the 2014 Yahoo! data breech. Was this hack done to your knowledge for intelligence purposes?

COMEY: I can’t say in this forum.

STEFANIK: Press reporting indicates that Yahoo! hacked targeted journalists, dissidence and government officials. Do you know what the FSB did with the information they obtained?

COMEY: Same answer.

Again, in spite of the great deal of detail in the indictment, Comey refused to answer these obvious questions.

The question is all the more interesting given that the indictment alleges that Alexsey Belan (who was sanctioned along with GRU in December) had access to Yahoo’s network until December 2016, well after these hacks. More interestingly, Belan was “minting” Yahoo account credentials at least as late as May 20, 2016. That’s significant, because one of the first things that led DNC to be convinced Russia was hacking it was when Ali Chalupa, who was then collecting opposition research on Paul Manafort from anti-Russian entities in Ukraine, kept having her Yahoo account hacked in early May. With the ability to mint cookies, the FSB could have accessed her account without generating a Yahoo notice. Chalupa has recently gone public about some, though not all, of the other frightening things that happened to her last summer (she was sharing them privately at the time). So at a time when the FSB could have accomplished its goals unobtrusively, hackers within the DNC network, Guccifer 2.0 outside of it, and stalkers in the DC area were all alerting Chalupa, at least, to their presence.

While it seems increasingly likely the FSB officers indicted for the Yahoo hack (one of whom has been charged with treason in Russia) were operating at least partly on their own, it’s worth noting that overlapping Russian entities had three different ways to access DNC targets.

Note, Dianne Feinstein is the one other person I’m aware of who is fully briefed on the DNC hack and who has mentioned the Yahoo indictment. Like Comey, she was non-committal about whether the Yahoo hack related to the DNC hack.

Today’s charges against hackers and Russian spies for the theft of more than 500 million Yahoo user accounts is the latest evidence of a troubling trend: Russia’s sustained use of cyber warfare for both intelligence gathering and financial crimes. The indictment shows that Russia used these cyberattacks to target U.S. and Russian government officials, Russian journalists and employees of cybersecurity, financial services and commercial entities.

There seems to be a concerted effort to obscure whether the Yahoo hack had any role in the hack of the DNC or other political targets.

Finally, Stefanik asked Comey a question I had myself.

STEFANIK: OK, I understand that. How — how did the administration determine who to sanction as part of the election hacking? How — how familiar with that decision process and how is that determination made?

COMEY: I don’t know. I’m not familiar with the decision process. The FBI is a factual input but I don’t recall and I don’t have any personal knowledge of how the decisions are made about who to sanction.

One place you might go to understand the relationship between GRU and FSB would be to Obama’s sanctions, which described the intelligence targets this way.

  • The Main Intelligence Directorate (a.k.a. Glavnoe Razvedyvatel’noe Upravlenie) (a.k.a. GRU) is involved in external collection using human intelligence officers and a variety of technical tools, and is designated for tampering, altering, or causing a misappropriation of information with the purpose or effect of interfering with the 2016 U.S. election processes.
  • The Federal Security Service (a.k.a. Federalnaya Sluzhba Bezopasnosti) (a.k.a FSB) assisted the GRU in conducting the activities described above.

[snip]

  • Sanctioned individuals include Igor Valentinovich Korobov, the current Chief of the GRU; Sergey Aleksandrovich Gizunov, Deputy Chief of the GRU; Igor Olegovich Kostyukov, a First Deputy Chief of the GRU; and Vladimir Stepanovich Alexseyev, also a First Deputy Chief of the GRU.

Remember, by the time Obama released these sanctions, several FSB officers, including Dmitry Dokuchaev (who was named in the Yahoo indictment) had been detained for treason for over three weeks. But the officers named in the sanctions, unlike the private companies and individual hackers, are unlikely to be directly affected by the sanctions.

The sanctions also obscured whether Belan was sanctioned for any role in the DNC hack.

  • Aleksey Alekseyevich Belan engaged in the significant malicious cyber-enabled misappropriation of personal identifiers for private financial gain.  Belan compromised the computer networks of at least three major United States-based e-commerce companies.

Again, all of this suggests that the intelligence community has reason to want to obscure how these various parts fit together, even while publicizing the details of the Yahoo indictment.

Which suggests a big part of the story is about how the public story deviates from the real story the IC is so intent on hiding.

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

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

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

Republicans Prepare to Accuse Hillary of Russian Ties

In Monday’s hearing, Devin Nunes asked Jim Comey for reassurances that if anyone — including a member of the public — brought allegations of Russian attempts to infiltrate the Hillary campaign to the FBI, the FBI would expand the investigation to include those efforts as well.

NUNES:Director Comey, you announced this morning that there’ll be an investigation into Trump associates possible and President Trump and anyone around the campaign and any association with the Russian government.

If this committee or anyone else for that matter, someone from the public, comes with information to you about the Hillary Clinton campaign or their associates or someone from the Clinton Foundation, will you add that to your investigation? They have ties to Russian intelligence services, Russian agents, would that be something of interest to you?

COMEY: People bring us information about what they think is improper unlawful activity of any kind, we will evaluate it. Not just in — not just in this context. Folks send us stuff all the time. They should keep going that.

NUNES: Do you think it’s possible that the Russians would not be trying to infiltrate Hillary Clinton’s campaign, get information on Hillary Clinton and try to get to people that are around that campaign or the Clinton Foundation?

COMEY: I’m not prepared to comment about the particular campaigns but the Russians in general are always trying to understand who the future leaders might be and what levers of influence there might be on them.

NUNES: I just hope that if — if information does surface about the other campaigns, not even just Hillary Clinton’s but any other campaigns, that you would take that serious also if the Russians were trying to infiltrate those campaigns around them.

COMEY: Of course we would.

Yesterday, Politico reported that the RNC paid an intelligence firm that employs a former KGB officer dig up dirt on Hillary.

The payments attracted attention in political and intelligence circles, largely because the Virginia-based firm, Hamilton Trading Group, had particular expertise in Russia, which was emerging as a major campaign issue at the time.

RNC officials and the president and co-founder of Hamilton Trading Group, an ex-CIA officer named Ben Wickham, insisted the payments, which eventually totaled $41,500, had nothing to do with Russia.

[snip]

But RNC officials now acknowledge that most of the cash$34,100 — went towards intelligence-style reports that sought to prove conflicts of interest between Democratic presidential candidate Hillary Clinton’s tenure as Secretary of State and her family’s foundation.

The firm produced two dossiers that tried to make the case that Clinton intervened in Bulgaria and Israel, respectively, on behalf of energy companies that had donated to the Clinton Foundation, according to people briefed on the reports.

The oppo firm’s story has been evolving, but thus far, it seems that the former KGB officer, Gennady Vasilenko, did not work on the Hillary project. That said, remember that the Christopher Steele dossier (which is effectively the Clinton counterpart to this oppo project) indicated that Russia held compromising information on Hillary. We don’t know if that was included in the earlier reports shared with Steele’s first, Republican client. If it was, I could imagine the RNC trying to replicate the same information via a different source.

Meanwhile, serial fabulist oppo hit man Jerome Corsi has a piece at Infowars purporting to explain Roger Stone’s August 21, 2016 tweet stating “it would soon be Podesta’s time in the barrel.” Corsi includes two reports from last summer — one done by Government Accountability Institute and another by himself in response to the Paul Manafort allegations — alleging ties between Hillary and Podesta and Russia.

When this article was published, I suggested to Roger Stone that the attack over Manafort’s ties to Russia needed to be countered.

My plan was to publicize the Government Accountability Institute’s report, “From Russia With Money,” that documented how Putin paid substantial sums of money to both Hillary Clinton and John Podesta.

Putin must have wanted Hillary to win in 2016, if only because Russian under-the-table cash payments to the Clintons and to Podesta would have made blackmailing her as president easy.

On Aug. 14, 2016, I began researching for Roger Stone a memo that I entitled “Podesta.”

I completed that memo on Aug. 31, 2016, and is embedded here in its entirety.

It’s not clear Corsi’s explanation works to absolve Stone: while the earlier (July 31) report does focus on John Podesta, Corsi’s August 31 report focuses primarily on John’s brother Tony.

But it does dig out these Russian allegations just after Nunes raised the possibility private citizens might provide FBI with evidence implicating the Hillary campaign.

I’d say this is all ridiculous, and within the counterintelligence department it probably is, but remember that similar allegations from Steve Bannon got the NY office of the FBI chasing after the Clinton Foundation for months and months.

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

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

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

FBI Is Examining Possible Coordination with Russia, Not Collusion

Jim Comey’s statement confirming an investigation including the Trump campaign on Monday said the following:

I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election, and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed. [my emphasis]

In spite of that careful, pre-approved word choice, “coordination,” members of Congress in the hearing, as well as the press both before and after the hearing, have used the term “collusion.”

But Comey made it clear much later in the hearing that the term coordination was deliberate. Mike Quigley asked for more details about how the FBI might find collusion with a foreign power. Comey corrected him, stating that he was investigating whether there had been coordination.

Collusion is not a legal term. It is not one I have used today. I said we are investigating to see if there is any coordination between people associated with the campaign–

I think — though the lawyers should correct me if I’m wrong — this suggests the FBI is thinking in terms of conspiracy.

That, along with Comey’s focus on knowing coordination, may put things like Roger Stone’s interactions in the limelight — though the case that Guccifer 2.0 is a Russian cut-out is and always has been one of the weakest parts of the public case against Russia, and even top intelligence community people stop short of calling Wikileaks a Russian cut-out (meaning Stone would be able to deny knowingly working with Russians).

It does, however, put the events surrounding the release of Podesta’s emails on October 7 in interesting light, though the lefty case on that is neither the best case for that period, nor does it account for all the details that would be of interest.

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

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

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

When a White Republican Gets Spied On, Privacy Suddenly Matters

As expected, much of today’s hearing on the Russian hack consisted of members of Congress — from both parties — posturing for the camera.

At first, it seemed that the Republican line of posturing — complaining about the leak that exposed Mike Flynn’s conversations with Ambassador Sergey Kislyak — tracked Donald Trump’s preferred approach, to turn this into a witch hunt for the leakers.

But it was actually more subtle than that. It appears Republicans believe the leaks about Flynn have (finally) made Congress skittish about incidental collection of US person communications as part of FISA collection. And so both Tom Rooney and Trey Gowdy spent much of their early hearing slots discussing how much more difficult the leak of Flynn’s name will make Section 702 reauthorization later this year. In the process, they should have created new fears about how painfully ignorant the people supposedly overseeing FISA are.

Rooney, who heads the subcommittee with oversight over NSA, started by quizzing Mike Rogers about the process by which a masked US person identity can be disclosed. Along the way, it became clear Rooney was talking about Section 702 reauthorization even while he was talking traditional FISA collection, which doesn’t lapse this year.

Rooney: If what we’re talking about is a serious crime, as has been alleged, in your opinion would leaking of a US person who has been unmasked and disseminated by intelligence community officials, would that leaking hurt or help our ability to conduct national security.

Rogers: Hurt.

Rooney: Ok, if it hurts, this leak, which through the 702 tool, which we all agree is vital–or you and I at least agree to that–do you think that that leak actually threatens our national security. If it’s a crime, and if it unmasks a US person, and this tool is so important it could potentially jeopardize this tool when we have to try to reauthorize it in a few months, if this is used against our ability to reauthorize this tool, and we can’t get it done because whoever did this leak, or these nine people that did this leak, create such a stir, whether it be in our legislative process or whatever, that they don’t feel confident a US person, under the 702 program, can be masked, successfully, and not leaked to the press, doesn’t that hurt–that leak–hurt our national security.

Eventually Admiral Rogers broke in to explain to his congressional overseer very basic facts about surveillance, including that Flynn was not and could not have been surveilled under Section 702.

Rogers: FISA collection on targets in the United States has nothing to do with 702, I just want to make sure we’re not confusing the two things here. 702 is collection overseas against non US persons.

Rooney: Right. And what we’re talking about here is incidentally, if a US person is talking to a foreign person that we’re listening to whether or not that person is unmasked.

Nevertheless, Rooney made it very clear he’s very concerned about how much harder the Flynn leak will make it for people like him to convince colleagues to reauthorize Section 702, which is even more of a privacy concern than traditional FISA.

Rooney: But it’s really going to hurt the people on this committee and you in the intelligence community when we try to retain this tool this year and try to convince some of our colleagues that this is really important for national security when somebody in the intelligence community says, you know what the hell with it, I’m gonna release this person’s name, because I’m gonna get something out of it. We’re all gonna be hurt by that. If we can’t reauthorize this tool. Do you agree with that?

A little later, Trey Gowdy got his second chance to complain about the leak. Referencing Rogers’ earlier explanation that only 20 people at NSA can unmask a US person identity, Gowdy tried to figure out how many at FBI could, arguing (this is stunning idiocy here) that by finding a finite number of FBI officials who could unmask US person identities might help assuage concerns about potential leaks of US persons caught in FISA surveillance.

Comey: I don’t know for sure as I sit here. Surely more, given the nature of the FBI’s work. We come into contact with US persons a whole lot more than the NSA does because we may be conducting — we only conduct our operations in the United States to collect electronic surveillance. I can find out the exact number. I don’t know it as I sit here.

Gowdy: I think Director Comey given the fact that you and I agree that this is critical, vital, indispensable. A similar program is coming up for reauthorization this fall with a pretty strong head wind right now, it would be nice to know the universe of people who have the power to unmask a US citizen’s name. Cause that might provide something of a road map to investigate who might have actually disseminated a masked US citizen’s name.

Here’s why this line of questioning from Gowdy is unbelievably idiotic. Both for traditional FISA, like the intercept targeting Kislyak that caught Flynn, and for Section 702, masking and unmasking identities at FBI is not the concern. That’s because the content from both authorities rests in FBI’s databases, and anyone cleared for FISA can access the raw data. And those FBI Agents not cleared for FISA can and are encouraged just to ask a buddy who is cleared to do it.

In other words, every Agent at FBI has relatively easy way to access the content on Flynn, so long as she can invent a foreign intelligence or criminal purpose reason to do so.

Which is probably why Comey tried to pitch something he called “culture” as adequate protection, rather than the very large number of FBI Agents who are cleared into FISA.

Comey: The number is … relevant. What I hope the US–the American people will realize is the number’s important but the culture behind it is in fact more important. The training, the rigor, the discipline. We are obsessive about FISA in the FBI for reasons I hope make sense to this committee. But we are, everything that’s FISA has to be labeled in such a way to warn people this is FISA, we treat this in a special way. So we can get you the number but I want to assure you the culture in the FBI and the NSA around how we treat US person information is obsessive, and I mean that in a good way.

So then Gowdy asks Comey something he really has a responsibility to know: what other agencies have Standard Minimization Procedures. (The answer, at least as the public record stands, is NSA, CIA, FBI, and NCTC have standard minimization procedures, with Main Justice using FBI’s SMPs.)

Gowdy: Director Comey I am not arguing with you and I agree the culture is important, but if there are 100 people who have the ability to unmask and the knowledge of a previously masked name, then that’s 100 different potential sources of investigation. And the smaller the number is, the easier your investigation is. So the number is relevant. I can see the culture is relevant. NSA, FBI, what other US government agencies have the authority to unmask a US citizen’s name?

Comey: Well I think all agencies that collect information pursuant to FISA have what are called standard minimization procedures which are approved by the FISA court that govern how they will treat US person information. So I know the NSA does, I know the CIA does, obviously the FBI does, I don’t know for sure beyond that.

Gowdy: How about Main Justice?

Comey: Main Justice I think does have standard minimization procedures.

Gowdy: Alright, so that’s four. NSA, FBI, CIA, Main Justice. Does the White House has the authority to unmask a US citizen’s name?

Comey: I think other elements of the government that are consumers of our can ask the collectors to unmask. The unmasking resides with those who collected the information. And so if Mike Rogers’ folks collected something, and they send it to me in a report and it says it’s US person #1 and it’s important for the FBI to know who that is, our request will go back to them. The White House can make similar requests of the FBI or NSA but they don’t on their own collect, so they can’t on their own unmask.

That series of answers didn’t satisfy Gowdy, because from his perspective, if Comey isn’t able to investigate and find a head for the leak of Flynn’s conversation with Kislyak — well, I don’t know what he thinks but he’s sure an investigation, possibly even the prosecution of journalists, is the answer.

Gowdy: I guess what I’m getting at Director Comey, you say it’s vital, you say it’s critical, you say that it’s indispensable, we both know it’s a threat to the reauthorization of 702 later on this fall and oh by the way it’s also a felony punishable by up to 10 years. So how would you begin your investigation, assuming for the sake of argument that a US citizen’s name appeared in the Washington Post and the NY Times unlawfully. Where would you begin that investigation?

This whole series of questions frankly mystifies me. I mean, these two men who ostensibly provide oversight of FISA clearly didn’t understand what the biggest risk to privacy is –back door searches of US person content — which at the FBI doesn’t even require any evidence of wrong-doing. That is the biggest impediment to reauthorizing FISA.

And testimony about the intricacies of unmasking a US person identity — particularly when a discussion of traditional FISA serves as stand-in for Section 702 — does nothing more than expose that the men who supposedly oversee FISA closely have no fucking clue — and I mean really, not a single fucking clue — how it works. Devin Nunes, too, has already expressed confusion on how access to incidentally collected US person content works.

Does anyone in the House Intelligence Committee understand how FISA works? Bueller?

In retrospect, I’m really puzzled by what is so damning about the Flynn leak to them. I mean, don’t get me wrong, I’m very sympathetic to the complaint that the contents of the intercepts did get leaked. If you’re not, you should be. Imagine how you’d feel if a Muslim kid got branded as a terrorist because he had a non-criminal discussion with someone like Anwar al-Awlaki? (Of course, in actual fact what happened is the Muslim kids who had non-criminal discussions with Awlaki had FBI informants thrown at them until they pressed a button and got busted for terrorism, but whatever.)

But Rooney and Gowdy and maybe even Nunes seemed worried that their colleagues in the House have seen someone like them — not a young Muslim, but instead a conservative white man — caught up in FISA, which has suddenly made them realize that they too have conversations all the time that likely get caught up in FISA?

Or are they worried that the public discussion of FISA will expose them for what they are, utterly negligent overseers, who don’t understand how invasive of privacy FISA currently is?

If it’s the latter, their efforts to assuage concerns should only serve to heighten those concerns. These men know so little about FISA they don’t even understand what questions to ask.

In any case, after today’s hearing I am beginning to suspect the IC doesn’t like to have public hearings not because someone like me will learn something, but because we’ll see how painfully little most of the so-called overseers have learned in all the private briefings the IC has given them. If these men don’t understand the full implications of incidental collection, two months after details of Flynn’s conversations have been leaked, then it seems likely they’ve been intentionally mis or underinformed.

Or perhaps they’re just not so bright.

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

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

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

FBI Delayed Telling the Gang of Four about Trump-Related Investigation Because It Is So Serious

As every newspaper in town has reported, at today’s hearing into Russia’s hack of the DNC, Jim Comey confirmed that the FBI has a counterintelligence investigation into the hack that includes whether Trump’s associates coordinated with Russian actors. Along the way, Comey refused to join in James Clapper’s statement that there was no evidence of collusion between Trump’s aides and Russia. When the now retired Director of National Intelligence said that, Clapper had emphasized that his statement only extended through the end of his service, January 20; he warned that some evidence may have been discovered after that.

A far more telling detail came close to the end of the hearing, during NY Congresswoman Elise Stefanik’s questioning. She started by asking what typical protocols were for informing the DNI, the White House, and senior Congressional leadership about counterintelligence investigations.

Stefanik: My first set of questions are directed at Director Comey. Broadly, when the FBI has any open counterintelligence investigation, what are the typical protocols or procedures for notifying the DNI, the White House, and senior congressional leadership?

Comey: There is a practice of a quarterly briefing on sensitive cases to the Chair and Ranking of the House and Senate Intelligence Committees. The reason I hesitate is, thanks to feedback we’ve gotten, we’re trying to make it better. And that involves a briefing briefing the Department of Justice, I believe the DNI, and the — some portion of the National Security Council at the White House. We brief them before Congress is briefed.

Stefanik: So it’s quarterly for all three, then, senior congressional leadership, the White House, and the DNI?

Comey: I think that’s right. Now that’s by practice, not by rule or by written policy. Which is why, thanks to the Chair and Ranking giving us feedback, we’re trying to tweak it in certain ways.

Note that point: the practice has been that FBI won’t brief the Gang of Four until after they’ve briefed DOJ, the DNI, and the White House. Stefanik goes on to ask why, if FBI normally briefs CI investigations quarterly, why FBI didn’t brief the Gang of Four before the last month, at least seven months after the investigation started. Comey explains they delayed because of the sensitivity of the investigation.

Stefanik: So since in your opening statement you confirmed that there is a counterintelligence investigation currently open and you also referenced that it started in July, when did  you notify the DNI, the White House, or senior Congressional leadership?

Comey: Congressional leadership, sometime recently — they were briefed on the nature of the investigation and some details, as I said. Obviously the Department of Justice must have been aware of it all along. The DNI … I don’t know what the DNI’s knowledge of it was, because we didn’t have a DNI until Mr. Coats took office and I briefed him his first morning in office.

Stefanik: So just to drill down on this, if the open investigation began in July, and the briefing of Congressional leadership only occurred recently, why was there no notification prior to the recent — the past month.

Comey: I think our decision was it was a matter of such sensitivity that we wouldn’t include it in the quarterly briefings.

Stefanik: So when you state “our decision,” is that your decision, is it usually your decision what gets briefed in those quarterly updates?

Comey: No. It’s usually the decision of the head of our counterintelligence division.

Stefanik: And just again, to get the details on the record, why was the decision not to brief senior congressional leadership until recently, when the investigation had been open since July, a very serious investigation. Why was that decision made to wait months?

Comey: Because of the sensitivity of the matter.

Stefanik then got Comey to reconfirm what the IC report says: that Russia had hacked numerous entities, he would later say over a thousand, including Republican targets.

Stefanik then turned to the Yahoo investigation. She asked whether the FSB officers involved conducted the hack for intelligence purposes — a question Comey refused to answer. He also refused to answer what the FSB did with the information stolen.

Stefanik: Taking a further step back of what’s been in the news recently and I’m referring to the Yahoo hack, the Yahoo data breach, last week the Department of Justice announced it was charging hackers with ties to the FSB in the 2014 data breach. Was this hack done, to your knowledge, for intelligence purposes?

Comey: I can’t say in this forum.

Stefanik: Press reporting indicates the Yahoo hack targeted journalists, dissidents and government officials. Do you know what the FSB did with the information they obtained?

Comey: Same answer.

Stefanik: Okay, I understand that.

This is important for a number of reasons, including the evidence that the FSB was hiding their hacking from others in Russia.

Stefanik then turned to the sanctions, asking if Comey had any insight into how the Obama Administration chose who got sanctioned in December — which included Alexsey Belan but not the FSB officers involved (one of whom, Dmitry Dokuchaev, was already under arrest for treason by the time of the sanctions).

Stefanik: How did the Administration determine who to sanction as part of the election hacking? How familiar are [] with that decision process and how is that determination made?

Comey: I don’t know. I’m not familiar with the decision-making process. The FBI is a factual input but I don’t recall — I don’t have any personal knowledge about how the decisions were made about who to sanction.

Again, her interest in this is significant — I’ll explain why in a follow-up.

Stefanik then asked what the intelligence agencies would do going forward to keep entities safe from Russian hacking. As part of the response, Mike Rogers revealed (unsurprisingly) that NSA first learned of FSB’s hacking of those many targets in the summer of 2015.

Finally, Stefanik returned to her original point, when Congress gets briefed on CI investigations. Comey’s response was remarkable.

Stefanik: It seems to me, in my first line of questioning, the more serious a counterintelligence investigation is, that would seem to trigger the need to update not just the White House, the DNI, but also senior congressional leadership. And you stated it was due to the severity. I think moving forward, it seems the most severe and serious investigations should be notified to senior congressional leadership. And with that thanks for your lenience, Mr. Chairman, I yield back.

Comey could have been done with Stefanik yielding back. But instead, he interrupted, and suggested part of the delay had to do with the practice of briefing within the Executive Branch NSC before briefing Congress.

Comey: That’s good feedback, Ms. Stefanik, the challenge for is, sometimes we want to keep it tight within the executive branch, and if we’re going to go brief congressional leaders, the practice has been then we brief inside the executive branch, and so we have to try to figure out how to navigate that in a good way.

Which seems to suggest one reason why the FBI delayed briefing the Gang of Four (presumably, this is the Gang of Eight) is because they couldn’t brief all Executive Branch people the White House, and so couldn’t brief Congress without first having briefed the White House.

Which would suggest Mike Flynn may be a very central figure in this investigation.

Update: I’ve corrected my last observation to match Comey’s testimony that the delay had to do with keeping things on a close hold within the Executive Branch. That may be nothing, it may reflect the delay on confirming Dan Coats, it may be Flynn (if you normally brief the NSC, after all the National Security Advisor would be among the first to be briefed), but it also could be Jeff Sessions.

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

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

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

Why We Should Remain Skeptical of the Five (!!) Congressional Investigations into the Russian Hack

I was interviewed (on Thursday) about the Flynn resignation and larger investigation into the Russia hack for Saturday’s On the Media. In what made the edit, I made one error (which I’ll explain later), but a key point I made holds. The leaking about Flynn and other Russian events are hypocritical and out of control. But they may create pressure to fix two problems with the current investigations into the Russian hack: the role of Jeff Sessions overseeing the DOJ-led investigations, and the role of Trump advisory officials Devin Nunes and Richard Burr overseeing the most appropriate congressional investigations.

In this post I’ll look at the latter conflicts. In a follow-up I’ll look at what the FBI seems to be doing.

As I noted in the interview, contrary to what you might think from squawking Democrats, there are five congressional investigations pertaining to Russian hacks, though some will likely end up focusing on prospective review of Russian hacking (for comparison, there were seven congressional Benghazi investigations). They are:

  • Senate Intelligence Committee: After months of Richard Burr — who served on Trump’s campaign national security advisory council — saying an inquiry was not necessary and going so far as insisting any inquiry wouldn’t review the dossier leaked on Trump, SSCI finally agreed to do an inquiry on January 13. Jim Comey briefed that inquiry last Friday, February 17.
  • House Intelligence Committee: In December, James Clapper refused to brief the House Intelligence Committee on the latest intelligence concluding Russian hacked the DNC with the goal of electing Trump, noting that HPSCI had been briefed all along (as was clear from some of the leaks, which clearly came from HPSCI insiders). In January, they started their own investigation of the hack, having already started fighting about documents by late January. While Ranking Democratic Member Adam Schiff has long been among the most vocal people complaining about the treatment of the hack, Devin Nunes was not only a Trump transition official, but made some absolutely ridiculous complaints after Mike Flynn’s side of some conversations got legally collected in a counterintelligence wiretap. Nunes has since promised to investigate the leaks that led to Flynn’s forced resignation.
  • Senate Armed Services Committee: In early January, John McCain announced he’d form a new subcommittee on cybersecurity, with the understanding it would include the Russian hack in its focus. Although he originally said Lindsey Graham would lead that committee, within weeks (and after Richard Burr finally capitulated and agreed to do a SSCI inquiry), McCain instead announced Mike Rounds would lead it.
  • Senate Foreign Relations Committee: In December, Bob Corker announced the SFRC would conduct an inquiry, scheduled to start in January. At a hearing in February, the topic came up multiple times, and both Corker and Ben Cardin reiterated their plans to conduct such an inquiry.
  • Senate Judiciary Subcommittee on Crime and Terrorism: After Graham was denied control of the SASC panel, he and Sheldon Whitehouse announced they’d conduct their own inquiry, including a prospective review of “the American intelligence community’s assessment that Russia did take an active interest and play a role in the recent American elections.”

All the while, some Senators — McCain, Graham, Chuck Schumer, and Jack Reed — have called for a Select Committee to conduct the investigation, though in true McCainesque fashion, the maverick has at times flip-flopped on his support of such an inquiry.

Also, while not an investigation, on February 9, Jerry Nadler issued what I consider (strictly as it relates to the Russian hack, not the other conflicts) an ill-advised resolution of inquiry calling for the Administration to release materials relating to the hack, among other materials. Democrats in both the House and Senate have introduced legislation calling for an independent commission, but have gotten no support even from the mavericky Republicans.

As you can see from these descriptions, it took pressure from other committees, especially Lindsey Graham getting control of one of the inquiries, before Richard Burr let himself be convinced by SSCI Vice Chair Mark Warner to conduct an inquiry. Thus far, Mitch McConnell has staved off any Select Committee. As soon as SSCI did claim to be launching an investigation, a bunch of Republicans tried to shut down the others, claiming it was all simply too confusing.

Let me be clear: as I noted in the OTM interview, the intelligence committees are the appropriate place to conduct this investigation, as it concerns really sensitive counterintelligence matters — people who could be witnesses to it are getting killed! — and an ongoing investigation. The only way to conduct a responsible inquiry is to do so in secret, and unless a select committee with clearance is formed, that means doing so in the dysfunctional intelligence committees.

That’s made worse by Nunes and Burr’s obvious conflicts, having served on Trump’s pre-inauguration advisory teams (at a time when Mike Flynn was chatting about ongoing sanctions with Russia), and their equally obvious disinterest in conducting the investigation. Remember that the intelligence committees successfully bolloxed up the independent investigation into Iran-Contra. While neither Nunes nor Burr is as smart as Dick Cheney, who had a key role in that intentional bolloxing, Democrats should be cognizant of the ways that such bolloxing has happened in the past.

And now that SSCI has finally started its inquiry, Ali Watkins published an uncharacteristically credulous report on Burr’s role in the investigation, slathering on the colorful vocabulary — “brutally yanked;” “underground cohort;” “dark shadow of Langley;” “Wearily, they’re trudging forward on a probe littered with potential political landmines;” — before portraying the allegedly difficult position Burr is in:

That he’s now in charge of the sweeping Russia inquiry puts the North Carolina Republican in between a rock and a hard place. Since taking over the helm of the intelligence committee, Burr has pressed for more active and aggressive oversight, and has kept a rigorous travel schedule to match. But his decisive reelection victory in November came at a cost — throughout the contentious race, Burr towed Trump’s line, and hasn’t yet directly criticized the White House publicly.

But Burr has shown no indication that he’s ever angled for a Trump administration job, and says he’s not running for re-election. How seriously he takes his obligation to carry his president’s water remains to be seen.

Burr has been slammed by colleagues in recent days, who fear he’s slow-rolling an investigation into a fast-moving story. But much of the inquiry’s slow start was due to bureaucratic wrangling — some intelligence agencies insisted products be viewed on site rather than sent to the Hill, and some of the intelligence was so tightly controlled that it was unclear if staffers could even view it.

This is just spin. There is abundant public record that Burr has thwarted oversight generally (he has said things supporting that stance throughout his history on both the Senate and House Intelligence Committee, even ignoring his role in covering up torture, and Watkins’ earlier incorrect claims about Burr’s open hearings remain only partly corrected). There is no mention in this article that Burr was on Trump’s national security advisory committee. Nor that SSCI had reason to do hearings about this hack well before January 2017, back when it might have made a difference — at precisely the time when Burr apparently had time to advise Trump about national security issues as a candidate. Plus, it ignores all the things laid out here, Burr’s continued equivocation about whether there should even be a hearing.

There is no reason to believe Burr or Nunes intend to have a truly rigorous investigation (bizarrely, Warner seems to have had more success pushing the issue than Schiff — or Dianne Feinstein when she was Vice Chair — though that may be because the Ranking position is stronger in the Senate than in the House). And history tells us we should be wary that their investigations will be counterproductive.

As I noted, on Friday — the Friday before a recess — Jim Comey briefed the SSCI on the Russian hack. That briefing was unusual for the date (regular SSCI meetings happen on Tuesday and Thursday, and little business of any kinds happens right before a recess). Reporters have interpreted that, along with the presumed silence about the content of the briefing, as a sign that things are serious. That may be true — or it may be that that was the only time a 3-hour briefing could be scheduled. In the wake of the briefing, it was reported that the SSCI sent broad preservation requests tied to the inquiry (that is, they sent the request long after the inquiry was started). And while the press has assumed no one is talking, the day after the briefing, Reuters reported outlines of at least three parts of the FBI investigation into the Russian hack, attributed to former and current government officials.

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

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

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

Trump Raises the Axe over the Intelligence Community, Again

The Intelligence Community is finishing its report on the intelligence regarding Russia’s influence in our elections. The report is expected to be delivered to President Obama tomorrow and briefed to President Elect Trump on Friday.

That’s the context for — and surely at least part of the explanation for — this WSJ story reporting that Trump plans to reorganize the intelligence community.

[A]dvisers also are working on a plan to restructure the Central Intelligence Agency, cutting back on staffing at its Virginia headquarters and pushing more people out into field posts around the world. The CIA declined to comment on the plan.

“The view from the Trump team is the intelligence world [is] becoming completely politicized,” said the individual, who is close to the Trump transition operation. “They all need to be slimmed down. The focus will be on restructuring the agencies and how they interact.”

[snip]

The Office of the Director of National Intelligence was established in 2004 in large part to boost coordination between intelligence agencies following the Sept. 11, 2001 terror attacks.

Many Republicans have proposed cutting the ODNI before, but this has proven hard to do in part because its mission centers are focused on core national security issues, such as counterterrorism, nuclear proliferation, and counterintelligence.

“The management and integration that DNI focuses on allows agencies like the CIA to better hone in on its own important work,” said Rep. Adam Schiff (D., Calif.), the ranking Democrat on the House Intelligence Committee, who believes dismantling the ODNI could lead to national security problems.

Mr. Trump’s advisers say he has long been skeptical of the CIA’s accuracy, and the president-elect often mentions faulty intelligence in 2002 and 2003 concerning Iraq’s weapons programs. But he has focused his skepticism of the agencies squarely on their Russia assessments, which has jarred analysts who are accustomed to more cohesion with the White House.

The report repeats earlier reporting — in part from some of the same WSJ reporters — that Trump planned this briefing. Back then, in mid-November, Trump was merely disdainful of the IC and much of the reorganization appeared to be a mix of vengeance on the part of Mike Flynn and, frankly, some reasonable ideas (things like splitting NSA and reversing some of the questionable changes John Brennan made). At the center of it all was a plan to make Admiral Mike Rogers Director of National Intelligence.

The day after that reporting, however, outlets reported that Ash Carter and James Clapper had been planning to fire Rogers, partly because the NSA had remained a leaky sieve under his tenure and partly because he had delayed cyber-bombing ISIS (perhaps to preserve intelligence collection). And that’s before it became public that the NSA hadn’t adopted four security measures recommended after the Snowden leaks.

After that, of course, Democrats and the CIA started leaking that Russia hacked the DNC with the purpose of electing Trump, which gave Trump the entrée to suggest this discussion is all politicized, which has escalated to this week. Trump seems to have orchestrated the Sean Hannity interview at which Julian Assange said what he has long said — that he didn’t get the DNC files from Russia.

Reuters is now reporting that after the election the IC determined that third parties had gotten the files from Russian entities to Wikileaks, which means Assange likely has no idea where the files came from.

But the timing of this story, sourced significantly to the Trump camp, seems to be a warning to those who will brief Trump on Friday. While Clapper and Brennan are on their way out (the fate of Comey and Rogers is still undecided), they certainly will want to protect their agencies.

Which should make for an interesting briefing Friday.

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

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

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