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Jim Risch Demands that Avril Haines Formally Tell Us He Is Lying

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The Senate Intelligence Committee had a hearing on election interference yesterday. Among the pieces of news is that the US intelligence community is sharing intelligence with European partners in advance of the EU Parliamentary vote next month to alert them to foreign interference efforts, something that was pretty clear to me but which journalists and European-based privacy activists had denied.

The entire hearing was undergirded, however, by a truth and a lie aspiring Donald Trump running mate and Vice Chair of the committee, Marco Rubio, offered up.

The truth is that if the IC says foreign spooks are trying to hurt one candidate, supporters of the opposing candidate will refuse to believe that claim.

For eight years, of course, Republicans have institutionally refused to believe that Russia tried to hurt Hillary and tried to help Trump. That made supporters of both parties trust their party more than the spooks. And in the aftermath, Trump has carried out a sustained campaign to get his followers to distrust The Deep State.

So the problem, at least for the MAGAts that Rubio wants to make him Vice President, is worse than Rubio said.

Rubio made several false claims in his comment, however.

Rubio: No matter who puts it out there, the candidate on the other side of it, their followers are going to question whether it’s the government interfering in the election themselves. And it’s not helpful, and I use this example because it’s a very recent one, when the whole laptop situation happened, the Hunter Biden laptop, a number of former intelligence officials, I get it they’re formers, no longer in the employ of any of these agencies, but that title carries weight, all signed a letter saying, “this has all the hallmarks of a Russian disinformation campaign.” We know now that it was not a disinformation campaign. I don’t want to get into the particulars of what was on it, I’m just saying it was not a Russian disinformation campaign.

But the result of it was that social media companies would not allow anyone to post the articles — and there was a media blackout; it could not be reported in any other except for one place, and so what happens as a result of that, whether it had an influence on the election or not, the result of it now is that we have some section of the country who repeatedly says things like the intelligence community interfered. [my emphasis]

Most obviously, Rubio claimed that “the result of [the letter 51 former spooks sent out] was that social media companies would not allow anyone to post the articles.” The letter from the spooks was dated October 19. The social media companies started throttling links to the NYPost on October 14. Days before the spooks’ letter, the social media platforms had already begun reversing their decision.

Rubio’s claim of causation defies physics.

That’s not his only false claim. Rubio certainly believes that the release of the hard drive was not a Russian disinformation campaign. Which is not what the former spooks said anyway — they said it might be a Russian information operation. But even four years on, it’s not certain what happened to Hunter Biden’s laptop before it was turned over to the FBI, and Hunter claims with some evidence that it was altered by Rudy before it was released to the NYPost.

I laid out some reasons we couldn’t be sure back in October, when Bret Baier made this false claim in a gotcha with Leon Panetta.

There are still more. For example, the FBI’s apparent uncertainties about even the date of a payment made from Hunter’s Venmo to someone the government claims is a stripper suggest they have not reviewed what happened to Hunter’s digital life after one of his devices was stolen in August 2018. Hunter said in January 2019 — before the laptop ultimately shared with John Paul Mac Isaac was packaged up — that he believed that theft happened when he was with a Russian sex worker. More recent filings have made clear that — contrary to a whole lot of credulous reporting — the laptop shared with the FBI is not an exact match with his iCloud account, which means device content made while in treatment from Keith Ablow does not have the same kind of validation that other data does. And given there are signs of compromise to Hunter’s accounts going back years, it’s not clear anyone has ruled out earlier compromise.

The FBI has never even done an index of everything on the laptop.

Unless someone else in government did such analysis — unless David Weiss’ prosecutors are sitting on more thorough analysis than they have shared with Hunter Biden — the FBI simply never did the work they would have needed to do to find out if the President’s son was compromised by Russians, whether spies or criminals, or some other foreign actor.

I don’t doubt that Rubio believes that the IC is more certain though.

Things disintegrated from what I think was a good faith concern (albeit one without any kind of accountability) on Rubio’s part to a rant by Jim Risch.

He thinks it is Avril Haines’ job to call out people who have access to intelligence who make false claims. He says he’s as concerned that 51 private citizens made a claim that remains true — that, in their opinion, the laptop, “has all the classic earmarks of a Russian information operation” — as he is that Russia will attack US democracy again,

Risch: I’m as concerned with this sort of thing as I am with foreign interference on the election process. This was deplorable, these 51 people saying this was Russian activity when we all know now that it wasn’t. I mean, these were 51 people that had very significant influence in American society and they sent this letter saying this was Russian influence.

Again, Jim Risch says it is as bad that experts express their well-substantiated opinion as it is that hostile nations target our democracy.

He demanded that Haines promise to go out and tell the American people if private individuals say something false this year.

What about this sort of thing, where it’s domestic interference, that’s obviously false. Who’s got the responsibility for standing up and looking in the camera and saying, folks, don’t count on this it’s not true. Is that going to be your responsibility?

Haines: Sir, I think … look … my responsibility with respect to formers that speak out and provide the wealth of their experience and knowledge in such circumstances is not to determine what they should or shouldn’t say, but rather to ensure that they’re not disclosing classified information, that we’re protecting that, and dealing with that, it’s not —

Risch: What if it’s false? using their robes of, … having knowledge of security matters and intelligence matters and you know it’s false. Is that your response, or you just say, nah I’m not gonna get involved in that.

Haines tried to correct Risch’s false representation of what the spooks actually said, noting that their experience made them suspicious (but stopping short of stating as fact that it was an information operation).

Haines: I don’t understand, because I think — first of all, I think they said that their experience makes them deeply suspicious of that activity.

Risch lied and said they had said something more.

Risch: They went a little further than that, I think, but I’ll take your characterization of that. And if you know that that’s false? Then you come into the information that it’s false, is it your obligation or not your obligation to stand up, look in the camera and say, folks, when you’re voting don’t take this into account.

Haines: Sir I don’t think I could make sure that I’ve even read everything that a former might have said or that anybody else is on these issues, so no, I don’t think that it’s appropriate for me to be determining what is truth and what is false in such circumstances.

It went on and on, with Jim Risch wailing about people with privileged access to intelligence — people like him — who make false claims. Sadly, no one ever strongly laid out Risch’s false claims, and Mark Warner even professed to be sympathetic to Risch’s view.

Risch: But what if you know. You’re sitting here, you’re the center of intelligence in America, right there, and this has come out and you know it’s false. What’s your obligation? Or do you have any?

Haines: I think my obligation is to ensure that the best intelligence is being provided to the President, to the Federal government, to the Congress, and where possible, to the American people, through declassification, which we would do.

Risch: That’s not calling out someone who stands up and purports to have intelligence information that you know is false?

Haines: Sir, if I were to — first of all, I’m not sure I’m the best arbiter of what is true and false, and secondly–

Risch: Let’s say, in a particular instance, you’ve seen the paper. You know it’s false. Let’s take that instance. What do you do?

Haines: I mean, it depends on the situation. If we’re talking about a fake video that was

Risch: It’s just what I said: someone with intelligence credentials stands up and says I know this from an intelligence standpoint and you know, as the Director of National Intelligence, that it’s false.

Haines: No, I do not consider that to be part of my responsibility. If there is disinformation that is put forward — false information — then we have the capacity to authenticate it as false, we will do so, basically to our customers, and there will be a process [inaudible and crosstalk] it may be to the public, it might be classified information, it might be anything else, I don’t what the circumstances are. It’s too much of a hypothetical.

Risch: I’m not making progress so I’m going to give it back to you.

Warner: My sense is it would be the responsibility of the FBI if it were proven. I’m not sure if we want the Director of National Intelligence commenting about a domestic statement made by an American, but I understand your point.

Risch: Well, that’s the purpose of this hearing, is to find out how American voters are going to be, uh, kept informed if it is true or false.

Warner: It is, our purview, at least, is focused on that foreign influence. But I understand your point.

Of course, the logical end point of Risch’s complaint is quite clear: He has demanded that Avril Haines go make a public statement that, in spite of Risch’s privileged access to intelligence, he is lying. And Marco Rubio is too!

It doesn’t stop there.

If Haines is supposed to police truth claims by private citizens, she would be obliged to come out publicly and say that Rudy’s public claims about Joe Biden were not just false, but fabrications of the Russian spies he was soliciting.

According to Jim Risch, not only should John Ratcliffe have publicly debunked Donald Trump’s false claims about Italy hacking voting machines via the thermostat (or whatever version of that nutjob story he was telling), but Haines today should formally debunk false claims that Trump is making about Solar Winds as part of his criminal defense.

Jim Risch is demanding that Avril Haines intervene and call him — and call Donald Trump — liars.

 

Eleven (or Thirteen) Senators Are Cool with Using Section 702 to Spy on Americans

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The Senate Intelligence Committee report on its version of Section 702 “reform” is out. It makes it clear that my concerns raised here and here are merited.

In this post, I’ll examine what the report — particularly taken in conjunction with the Wyden-Paul reform — reveals about the use of Section 702 for domestic spying.

The first clue is Senator Wyden’s effort to prohibit collection of domestic communications — the issue about which he and Director of National Intelligence Dan Coats have been fighting about since June.

By a vote of four ayes to eleven noes, the Committee rejected an amendment by Senator Wyden that would have prohibited acquisition under Section 702 of communications known to be entirely domestic under authority to target certain persons outside of the United States. The votes in person or by proxy were as follows: Chairman Burr—no; Senator Risch—no; Senator Rubio—no; Senator Collins—no; Senator Blunt—no; Senator Lankford—no; Senator Cotton—no; Senator Cornyn—no; Vice Chairman Warner—no; Senator Feinstein—aye; Senator Wyden—aye; Senator Heinrich— aye; Senator King—no; Senator Manchin—no; and Senator Harris—aye.

It tells us that the government collects entirely domestic communications, a practice that Wyden tried to prohibit in his own bill, which added this language to Section 702.

(F) may not acquire communications known to be entirely domestic;

This would effectively close the 2014 exception, which permitted the NSA to continue to collect on a facility even after it had identified that Americans also used it. As I have explained is used to collect Tor (and probably VPN) traffic to obtain foreigners’ data. I suspect that detail is what Wyden had in mind when, in his comments in the report, he said the report itself “omit[s] key information about the scope of authorities granted the government” (though there are likely other things this report hides).

I have concerns about this report. By omitting key information about the scope of authorities granted the government, the Committee is itself contributing to the continuing corrosive problem of secret law

As the bill report lays out, Senators Burr, Risch, Rubio, Collins, Blunt, Lankford, Cotton, Cornyn, Warner, King, and Manchin are all cool using a foreign surveillance program to spy on their constituents, especially given that Burr has hidden precisely the impact of that spying in this report.

Any bets on whether they might have voted differently if we all got to know what kind of spying on us this bill authorized.

That, of course, is only eleven senators who are cool with treating their constituents (or at least those using location obscuring techniques) like foreigners.

But I’m throwing Feinstein and Harris in with that group, because they voted against a Wyden amendment that would have limited how the government could use 702 collected data in investigations.

By a vote of two ayes to thirteen noes, the Committee rejected an amendment by Senator Wyden that would have imposed further restrictions on use of Section 702-derived information in investigations and legal proceedings. The votes in person or by proxy were as follows: Chairman Burr—no; Senator Risch—no; Senator Rubio—no; Senator Collins—no; Senator Blunt—no; Senator Lankford—no; Senator Cotton—no; Senator Cornyn—no; Vice Chairman Warner—no; Senator Feinstein—no; Senator Wyden— aye; Senator Heinrich—aye; Senator King—no; Senator Manchin— no; and Senator Harris—no.

While we don’t have the language of this amendment, I assume it does what this language in Wyden’s bill does, which is to limit the use of Section 702 data for purposes laid out in the known certificates (foreign government including nation-state hacking, counterproliferation, and counterterrorism — though this language makes me wonder if there’s a Critical Infrastructure certificate or whether it only depends on the permission to do so in the FBI minimization procedures, and the force protection language reminds me of the concerns raised by a recent HRW FOIA permitting the use of 12333 language to do so).

(B) in a proceeding or investigation in which the information is directly related to and necessary to address a specific threat of—

(i) terrorism (as defined in clauses (i) through (iii) of section 2332(g)(5)(B) of title 18, United States Code);

(ii) espionage (as used in chapter 37 of title 18, United States Code);

(iii) proliferation or use of a weapon of mass destruction (as defined in section 2332a(c) of title 18, United States Code);

(iv) a cybersecurity threat from a foreign country;

(v) incapacitation or destruction of critical infrastructure (as defined in section 1016(e) of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 (42 U.S.C. 5195c(e))); or

(vi) a threat to the armed forces of the United States or an ally of the United States or to other personnel of the United States Government or a government of an ally of the United States.

Compare this list with the one included in the bill, which codifies the use of 702 data for issues that,

“Affects, involves, or is related to” the national security of the United States (which will include proceedings used to flip informants on top of whatever terrorism, proliferation, or espionage and hacking crimes that would more directly fall under national security) or involves,

  • Death
  • Kidnapping
  • Serious bodily injury
  • Specified offense against a minor
  • Incapacitation or destruction of critical infrastructure (critical infrastructure can include even campgrounds!)
  • Cybersecurity, including violations of CFAA
  • Transnational crime, including transnational narcotics trafficking
  • Human trafficking (which, especially dissociated from transnational crime, is often used as a ploy to prosecute prostitution; the government also includes assisting undocumented migration to be human trafficking)

[snip]

Importantly, the bill does not permit judicial review on whether the determination that something “affects, involves, or is related to” national security. Meaning Attorney General Jeff Sessions could decide tomorrow that it can collect the Tor traffic of BLM or BDS activists, and no judge can rule that’s an inappropriate use of a foreign intelligence program.

The bill report’s description of this section makes it clear that — in spite of its use of the word “restriction,” — this is really about providing affirmative “permission.”

Section 6 provides restrictions on the Federal Bureau of Investigation’s (FBI’s) use of Section 702-derived information, so that the FBI can use the information as evidence only in court proceedings [my emphasis]

That is, Wyden would restrict the use of 702 data to purposes the FISC has affirmatively approved, rather than the list of 702 purposes expanded to include the most problematic uses of Tor: all hacking, dark markets, and child porn.

So while Feinstein and Harris voted against the use of 702 to collect known domestic communications, they’re still okay using domestic Tor commuincations they say they don’t want to let NSA collect to prosecute Americans (which is actually not surprising given their past actions on sex workers).

Again, they’re counting on the fact that the bill report is written such that their constituents won’t know that this is going on. Unless they read me.

Look, I get the need to collect on Tor traffic to go after its worst uses. But if you’re going to do that, stop pretending this is a foreign surveillance bill, and instead either call it a secret court bill (one that effectively evades warrant requirements for all Tor wiretapping in this country), or admit you’re doing that collection and put review of it back into criminal courts where it belongs.

Failed Filibuster Reform Doesn’t Only Affect Partisan Relationships

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As you’ve no doubt heard, Harry Reid, with the support of a handful of Senators, has killed the effort to reform the filibuster.

DDay has come out of retirement to issue an excellent rant on what this means for democracy. [Update] Here’s Kagro X on what the deal means in practice.

But I wanted to point to this exchange–between still-Senator John Kerry, who had been squeamish but open to reform, and Jim Risch, in the former’s confirmation hearing to become part of the Executive Branch. (1:25 and following)

Risch: I know you have a deep appreciation for the Constitutional process regarding foreign relations matters. There are a lot of us who are becoming increasingly concerned about all this talk about Executive Agreements as opposed to treaties that are negotiated by the Executive Branch as contemplated by the Founding Fathers and ratified, if appropriate, by this committee and eventually by the full Senate. Can you give us your view on matters regarding Executive Agreements. How do you feel about that and the bypassing of the C–

Kerry: Well, every Administration in history,

Risch: Appreciate that.

Kerry: –Republican and Democratic alike, have entered into Executive Agreements.

Risch: You agree the better process would be to submit it to this committee first?

Kerry: It would depend–I would say to you Senator that it would depend on what the subject matter is and what the sort of scope is and whether or not it falls under traditional treaty purview or it falls under Executive Agreement purview. I can’t, I don’t want to be commenting in some prophylactic way, one side or the other, without the specific situation in front of me. But I’m confident the President is committed to upholding the Constitution I don’t think he’s … you know, I think, I’ll say this to all of you. There’s no better way to guarantee that whatever concerns you have about the President’s desire to move on an Executive Agreement would be greatly nullified or mollified if we could find a way to cooperate on a treaty or on the broader issues that face the nation. But, you know, I think there’s a lot of frustration out there that some of the automatic ideological restraint here that prevents the majority from being able to express their voice has restrained people and pushed people in a way that they have got to consider other ways of getting things done.

Risch: And that’s exactly what concerns us, Senator Kerry, is the fact that it’s okay to do this through the regular order if it gets done, but if it’s not going to get done, the ends justify the means, it’s okay to end run around the Congress. And I gotta tell you I feel strongly that that is not the appropriate way to do it. The Founding Fathers didn’t say do this if it’s convenient and it’s okay not to do it if it’s not convenient.

Kerry: Is that right. I would agree with you and I’m not suggesting that that is the standard. But I am saying to you–and I think you know exactly what I’m talking about– that there are times around here, in recent days only, and I don’t want to get deeply into it, where certain arguments that are not necessarily based either on fact or on science or anything except the point of view of some outside entity have prevented certain things from being able to be done. [my emphasis]

Basically Jim Risch was objecting to Obama’s consideration of using Executive Agreements with other countries rather than treaties. In response, Kerry suggested that if the Republicans didn’t obstruct so much using the filibuster–preventing the majority from being able to express its voice–then Obama would be more likely to use Executive Agreements.

Frankly, Risch is defending not just the right of some right wing Senators to hold up treaties, but also some backassward policies. Kerry’s nod to science suggests one of the issues here is in climate negotiations (though that’s not the only one–Obama is also avoiding Congress on some horrible IP negotiations). To the extent that national security is a reason to bypass Congress (it’s not, but Republicans have argued it is), then climate change ought to qualify as well.

But Kerry–at almost precisely the moment Democrats chose not to pursue a way to bypass Republican obstruction and as part of the process to become part of the Executive Branch–used Republican obstruction as an excuse to bypass Congress.

And so the Democrat’s refusal to make the Senate more democratic will, in turn, lead the Executive Branch to be even less democratic.

Lisa Murkowski Admits She Voted To Help Catholic Church Enforce a Doctrine She Ignores

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As I noted last week, every single Catholic Senator save Susan Collins who voted for the Blunt Amendment last week appears likely to have relied on the birth control their Church prohibits to limit the size of their families. Lisa Murkowski, who has just 2 kids, was among the 10 Catholics who was using her position to help the Catholic Church enforce a doctrine she herself has ignored.

And in an interview claiming she now regrets that vote, Murkowski as much as admits that’s what she did. (h/t TPM)

What Lisa Murkowski told me I already suspected. She’s a moderate. She supports abortion rights and contraception coverage. She also doesn’t line up completely with the Catholic Church when it comes to birth control. She regretted her recent vote.

[snip]

I pointed out that her support for birth control conflicts with the Catholic mandate against it.

“You know, I don’t adhere to all of the tenets of my faith.

Now, she’s still spinning her vote (and her letter opposing Obama’s rule on contraception) as one in favor of religious freedom.

She’d meant to make a statement about religious freedom, she said, but voters read it as a vote against contraception coverage for women.

But it is not “religious freedom” to craft laws to help the Church enforce mandates that almost none of its adherents–and probably few, if any, of the Catholic Senators supporting the law–abide by. It is an improper use of government to aid a religious institution.

Not to mention, rank hypocrisy.