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Meditations: What Is this Thing? Examining Trump-Russia

“This thing, what is it in itself, in its own constitution? What is its substance and material? And what its causal nature (or form)? And what is it doing in the world? And how long does it subsist?”

— Marcus Aurelius, Meditations, Book VIII, sect. X

When writing about the Trump-Russia investigations, there’s invariably push back questioning the legitimacy of inquiry or the sanity of those who seek answers.

One of the most persistent demands is for unassailable proof the Russians were responsible for hacking the US, whether the DNC or other systems, and any inability to provide such unquestionable evidence invalidates investigations for those who insist on proof.

But such demands may never be met in a way satisfying these demands. Some of these demands are made knowing with certainty that full disclosure of evidence would reveal sources and methods and therefore cannot be made in public.

It’s the specificity of these demands which redirects the attention away from what the investigations may find. Rather than allow ourselves to be derailed by what we aren’t able to answer, we should rely on first principles and examine what is directly in front of us.

What is this thing?

Pull together what are known facts and look at them. Here are a few; what are they, at face value?

• Then-president Obama warned Trump against Michael Flynn as national security adviser. (10-NOV-2017)

• Trump hired Flynn anyhow, against his predecessor’s recommendation. (18-NOV-2017)

• Flynn had a history of breaking rules, including the secret installation of an internet connection in his Pentagon office.

• Flynn had dialogue with foreign agents without disclosing truthfully the nature of his discussions. (29-DEC-2016; possibly more and other contacts earlier)

• Trump kept Flynn on as national security adviser after deputy attorney general Sally Yates warned White House counsel Don McGahn that Flynn could be blackmailed. (26/27-JAN-2017)

• Yates was fired the same day she was to provide White House counsel with more information about Flynn, after she announced the DOJ would not enforce the executive order signed 27-JAN-2017 banning Muslim travelers; the president wrote she was “weak on borders and very weak on illegal immigration.” (30-JAN-2017)

• Flynn denied talking with Russian ambassador Sergei Kislyak in December 2016 about U.S. sanctions on Russia. (08-FEB-2017)

• The Washington Post reported Flynn had spoken with Kislyak about the sanctions according to officials from both Obama and Trump administration with access to reports about Flynn’s communications. (09-FEB-2017)

• Flynn resigned as national security adviser.

• Trump nominated Jeff Sessions as attorney general.

• During his Senate Judiciary Committee confirmation hearing, Sessions said, “I didn’t have—did not have communications with the Russians” when asked if there was any evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of the campaign. (10-JAN-2017)

• In responses to written questions from Senate Judiciary Committee member Pat Leahy, Sessions denied he had been “in contact with anyone connected to any part of the Russian government about the 2016 election”. (17-JAN-2017)

• Reports emerged that Sessions had spoken twice with Kislyak during the campaign season. (01-MAR-2017)

• In a statement later the same evening, Sessions said, “I never met with any Russian officials to discuss issues of the campaign. I have no idea what this allegation is about. It is false.”

• After calls by Democratic members of Congress for Sessions to resign, Sessions recused himself from any investigations into Russia’s interference in the 2016 presidential election. (02-MAR-2017)

What is this, on the face of it, with regard to Flynn, Sessions and Trump-Russia? What was the nature of Flynn’s and Sessions’ contacts with Russian officials? What were these multiple undisclosed meetings and denials supposed to do, if left unquestioned and uninterrupted? Why would two key figures in the Trump campaign and administration both have contact with Russian officials either during the campaign season or after the election before inauguration, and then lie about the nature contacts?

Similarly, we can look at Donald Trump Jr.’s and Jared Kushner’s actions through the campaign and post-election and -inauguration. We see more undisclosed interactions, more denials and lies, more forced disclosure.

We can also look at Trump’s words and deeds: long sympathetic to Russia, he more than hints that Russia should hack his opponent’s emails during the campaign season. He is not forthcoming about his finances. He does not resolve conflicts of interest. He leans on FBI director to drop the investigation into Flynn’s Russia-related activities, ultimately firing him. His attendance at the G20 meeting yielded private, unrecorded meetings with Russian president Putin. He’s harassed Sessions for having recused himself from the Russia investigations. He vacillated on whether he will or will not sign the latest sanctions on Russia which Congress passed last week.

And in the last 24 hours, after Russia demanded an end to specific sanctions on former U.S.-based Russian compounds, after Russia retaliated by ejecting U.S. diplomatic personnel, Trump does not offer any response, leaving VP Mike Pence to offer tepid supportive comments for NATO allies.

What is this thing?

The Curious Timing of Flynn Events and EO 13769

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

JOHN DICKERSON: But what about after—

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

JOHN DICKERSON: Absolutely.

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

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

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

20-JAN-2017 — Inauguration Day

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Who were those aides?

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

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

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

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

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

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

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

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

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

Did Michael Flynn talk about the EO with these aides?

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

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

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

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

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

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

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

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

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

What timing.

The Flynn and Kushner Interviews with SSCI

Richard Burr and Mark Warner had a press conference today to — basically — reassure people that at least one intelligence committee is made up of grown-ups who will be able to conduct an investigation of Russia’s attempts to interfere with the election. Among other things, Burr said the committee has a list of about 20 people with whom they’re in the process of setting up interviews, about five of which have been scheduled, to start Monday.

Amid repeated discussions about leaks, Burr confirmed — as the NYT already has — that the Committee wants to meet with Jared Kushner. The NYT story about Kushner was clearly first informed by Senate Intelligence Committee personnel that SSCI wanted to talk to him, and then got Hope Hicks to confirm it publicly. Of particularly interest (because Burr is very strict that committee business remain secret), the NYT SSCI source asked for anonymity to remain candid about Kushner, not because he or she was not permitted to talk with the press.

The Senate panel’s decision to question Mr. Kushner would make him the closest person to the president to be called upon in any of the investigations, and the only one currently serving in the White House. The officials who initially described that Senate inquiry to The New York Times did so on the condition of anonymity in order to speak candidly about Mr. Trump’s son-in-law.

Later the NYT story cotes a statement from Burr and Mark Warner, confirming (as Burr did in the hearing) that they will speak with Kushner.

In today’s hearing, having confirmed again the detail about Kushner, however, Burr took a different approach in response to a question about Mike Flynn.

Q: Have you guys been in contact with Michael Flynn or representatives of Michael Flynn? Also, can you go into a little bit of the thought process between why you would have an interview behind closed doors or do it publicly, like why you would talk to Jared Kushner behind closed doors, why you would do it publicly?

Burr: Well, I think it’s safe to say that we have had conversations with a lot of people. And you would think less of us if General Flynn wasn’t in that list. From a standpoint of the interview process if you feel like you’re being cheated, because they’re not in public, if there’s relevance to em they’ll eventually be part of a public hearing.

[Burr goes on to discuss the committee doing private interviews first.]

Q: Have you already spoken with Flynn? Have you already spoken with Flynn?

Burr: I’m not gonna tell you one way or another.

Effectively, he confirms that Flynn will be asked to talk to the committee. But when asked (I think my transcription of this is correct but welcome corrections on this point) if he — or the committee — had already spoken with Flynn, he refused to provide the same kind of confirmation he did with Kushner, and particularly to say whether he or the committee had already spoken with him.

I raise this for several reasons. Obviously, the double standard — and Burr’s willingness to deviate from his strict committee business secrecy pledge with regards to Kushner — is notable. The possibility that he or the committee may have already spoken with Flynn is particularly interesting.

In my post on the Kushner story, I noted that the Kushner story for the first time got into the quid pro quo the Russians were really interested in — not a change in policy towards Ukraine, but rather, an end to the sanctions targeting Russia for its annexation of Ukraine. I actually missed one of the most important parts of that story, however. On December 29, the FSB-trained head of a sanctioned who met with Kushner at the request of Sergey Kislyak, Sergey Gorkov, stated that he thought Ukrainian-related sanctions might “change for the better.”

And in an interview on the state-owned Rossiya 24 TV channel on Dec. 29, the same month that he met with Mr. Kushner, Mr. Gorkov said he hoped that the situation caused by Ukraine sanctions imposed by the Americans against Russian banks like his “would change for the better.”

As I noted in my post, the possibility that Gorkov had discussed Ukraine sanctions directly with Kushner would change the connotation of the discussions between Flynn and Kislyak.

And those conversations were on December 29.

In other words, on the very same day that Kislyak and Flynn were having multiple phone calls — and discussed sanctions in vague terms — Gorkov was publicly discussing the Ukraine, not the hacking related, sanctions.

Again, Burr is happy to confirm the committee will call Kushner. He’s not going to say whether the committee has already spoken with Flynn, who would know better about the connotation of sanctions as discussed on December 29.

And SSCI likely has already read the conversations between Kislyak and Gorkov surrounding his meetings with the President’s son-in-law.

White House Confident No Fire to Russian Smoke because Investigation Has Lasted Six Months

Mike Allen’s new rag has an update on the White House efforts to counter the NYT story that Trump’s team had repeated contacts with Russian intelligence leading up to the election. The piece that’s getting all the attention is confirmation that Sean Spicer is the one who arranged the contacts.

White House Press Secretary Sean Spicer personally picked up the phone and connected outside officials with reporters to try to discredit a New York Times article about Trump campaign aides’ contact with Russia, then remained on the line for the brief conversations,

But I’m just as interested in the logic the White House used to reassure itself there’s no risk to the investigation.

Top White House officials tell us they’re authentically confident that the Russia smoke won’t lead to fire, and are even happy to have their opponents distracted by the issue. “For over six months, we have heard about these alleged contacts with Russia,” the official said. “And yet, … with all the leaks have have come out, there’s no ‘there’ there.”

This is an administration that hasn’t conducted anywhere near the kind of vetting administrations normally do. Numerous staffers couldn’t get security clearance, several nominees had to withdraw because of financial conflicts, and still more should have. The administration lied about the substance of Mike Flynn’s contacts with the Russian Ambassador for weeks, and only fired Flynn when it became public that Flynn had purportedly lied to VP Pence. Moreover, Trump insisted the Hillary email investigation — a far less complex investigation — might result in indictments well past the six month mark of the investigation (it took just under a year for FBI to declare they would not charge her, even ignoring the October 2016 headfake related to the Anthony Weiner related emails).

And yet their assurance that these leaks will amount to nothing seems to come primarily from the fact that nothing has happened in six months of leaks (ignoring Flynn got fired after an interview with the FBI)?

I mean, they may well be right. Missing from most of the coverage of this story is the White House claim that Deputy FBI Director Andrew McCabe allegedly offered up that the story was “bullshit” (a claim Allen repeats unquestioningly). If that’s the case, NYT really should offer a correction.

Except there’s a big difference between saying there were not a stream of communications between Russian intelligence and Trump’s associates and saying that the ties with Michael Cohen and Paul Manafort, especially, don’t present potential means to compromise Trump’s administration.

There’s one thing I’ll agree with the White House on, though: the Russian scandal is sucking up all the press’ attention, even as Trump’s rolls out his various dragnets of authoritarianism. While the press is obsessed with whether Trump was influenced by an authoritarian, most are ignoring how Trump is himself one.

Donald Trump’s Intelligence Briefings and Ellsberg’s Limits of Knowledge

The spooks and their congressional mouthpieces have again leaked details about Donald Trump not accepting their briefings often enough.

 

President-elect Donald Trump is receiving an average of one presidential intelligence briefing a week, according to U.S. officials familiar with the matter, far fewer than most of his recent predecessors.

Although they are not required to, presidents-elect have in the past generally welcomed the opportunity to receive the President’s Daily Brief (PDB), the most highly classified and closely held document in the government, on a regular basis.

It was not immediately clear why Trump has decided not to receive the intelligence briefings available to President Barack Obama more frequently, or whether that has made any difference in his presidential preparations.

An official on the transition team said on Thursday that Trump has been receiving national security briefings, including “routine” PDBs and other special briefings, but declined to specify their content or frequency, saying these matters were classified.

Trump has asked for at least one briefing, and possibly more, from intelligence agencies on specific subjects, one of the officials said. The source declined to identify what subjects interested the president-elect, but said that so far they have not included Russia or Iran.

[snip]

(Corrects to say Iran, not France, in fifth paragraph)

Of course, all this is supposed to generate pressure on Trump to do more briefings. Which would have the effect of briefers getting their face time with Trump instead of the people that Trump is presumably learning about these topics from — Mike Flynn, as well as lobbyists like Bob Dole, who set up Trump’s call with Taiwan president Tsai Ing-wen.

The repeated effort to pressure Trump into accepting briefings from the spooks reminded me of an anecdote Dan Ellsberg has told about what he briefed Henry Kissinger when he first entered government. Ellsberg told Kissinger that being briefed into compartments would, at first, be intoxicating. It would later lead him to disdain anyone not privy to the most secret information. But ultimately, Ellsberg warned Kissinger, “You’ll become incapable of learning from most people in the world.”

“Henry, there’s something I would like to tell you, for what it’s worth, something I wish I had been told years ago. You’ve been a consultant for a long time, and you’ve dealt a great deal with top secret information. But you’re about to receive a whole slew of special clearances, maybe fifteen or twenty of them, that are higher than top secret.

“I’ve had a number of these myself, and I’ve known other people who have just acquired them, and I have a pretty good sense of what the effects of receiving these clearances are on a person who didn’t previously know they even existed. And the effects of reading the information that they will make available to you.

“First, you’ll be exhilarated by some of this new information, and by having it all — so much! incredible! — suddenly available to you. But second, almost as fast, you will feel like a fool for having studied, written, talked about these subjects, criticized and analyzed decisions made by presidents for years without having known of the existence of all this information, which presidents and others had and you didn’t, and which must have influenced their decisions in ways you couldn’t even guess. In particular, you’ll feel foolish for having literally rubbed shoulders for over a decade with some officials and consultants who did have access to all this information you didn’t know about and didn’t know they had, and you’ll be stunned that they kept that secret from you so well.

“You will feel like a fool, and that will last for about two weeks. Then, after you’ve started reading all this daily intelligence input and become used to using what amounts to whole libraries of hidden information, which is much more closely held than mere top secret data, you will forget there ever was a time when you didn’t have it, and you’ll be aware only of the fact that you have it now and most others don’t….and that all those other people are fools.

“Over a longer period of time — not too long, but a matter of two or three years — you’ll eventually become aware of the limitations of this information. There is a great deal that it doesn’t tell you, it’s often inaccurate, and it can lead you astray just as much as the New York Times can. But that takes a while to learn.

“In the meantime it will have become very hard for you to learn from anybody who doesn’t have these clearances. Because you’ll be thinking as you listen to them: ‘What would this man be telling me if he knew what I know? Would he be giving me the same advice, or would it totally change his predictions and recommendations?’ And that mental exercise is so torturous that after a while you give it up and just stop listening. I’ve seen this with my superiors, my colleagues….and with myself.

“You will deal with a person who doesn’t have those clearances only from the point of view of what you want him to believe and what impression you want him to go away with, since you’ll have to lie carefully to him about what you know. In effect, you will have to manipulate him. You’ll give up trying to assess what he has to say. The danger is, you’ll become something like a moron. You’ll become incapable of learning from most people in the world, no matter how much experience they may have in their particular areas that may be much greater than yours.”

I’m not actually saying that it’s a good thing that Trump is resisting the spooks, though I do think they use classification to set up precisely this kind of seeming monopoly on information. I do, however, wonder whether Trump has driven this choice, or whether his advisors have.

It seems there’s a fight for the brain of Trump, even while he seems to be preparing to delegate all this stuff to his advisors.

Why Is HPSCI’s Snowden Report So Inexcusably Shitty?

There’s now a growing list of things in the HPSCI report on Snowden that are either factually wrong, misleading, or spin.

One part of the spin the report admits itself: the committee assessed damage based on the 1.5 million documents Snowden touched — an approach the now discredited General Michael Flynn presented in briefings to the committee — rather than the far more limited set the Intelligence Community included in its damage assessment.

Over the past three years, the IC and the Department of Defense (DOD) have carried out separate reviews with differing methodologies of the damage Snowden caused. Out of an abundance of caution, DOD reviewed all 1.5 million documents Snowden removed. The IC, by contrast, has carried out a damage assessment for only a small subset of the documents. The Committee is concerned that the IC does not plan to assess the damage of the vast majority of documents Snowden removed.

Clearly, the IC wants a real assessment of the damage Snowden caused. HPSCI, however, appears to be interested in the most damning, which makes sense given that members of Congress actively solicited information they could use to damage Snowden.

Here are other problems with the report.

From Bart Gellman’s rebuttal:

  • HPSCI claimed the “bilateral tibial stress fractures” that led to Snowden’s discharge were “shin splints.”
  • HPSCI claimed he never got a GED. According to official Maryland records, Snowden got his equivalent degree on June 2, 2004.
  • HPSCI claimed Snowden was a computer technician at CIA. At the end he served as a “solutions referent/cyber referent” working on cyber contracts.
  • HPSCI claimed Snowden’s effort to show a security hole in CIA’s human resources intranet was an effort to doctor his performance evaluations.

From me:

HPSCI claimed Snowden failed the Section 702 training. According to an email from the SIGINT Compliance Chief, Snowden did pass it (the Chief had not checked whether or not Snowden had really failed it).“He said he had failed it multiple times (I’d have to check with ADET on that). He did pass the course at some point.”

The claim Snowden didn’t pass the test stems from an email written a year after an exchange between him and a Compliance training person. The training person wrote the email in direct response to Snowden’s claims that he had “contacted N.S.A. oversight and compliance bodies.” While it may be true Snowden failed the test before he passed it, there are enough irregularities with the email claim and related story it should not be credited without backup. When we asked NSA for specific answers about that email in conjunction with this story, they flipped out and went nuclear and preemptively released all the emails rather than provide the very easy answers to validate the email story.

From Patrick Eddington:

HPSCI claimed Snowden could have reported complaints to the committee, but HPSCI killed an effort to extend whistleblower protections to intelligence contractors in 2012.

Eddington and Steven Aftergood both suggest the shitty HPSCI report is good reason to embrace a set of reforms to improve HPSCI oversight.

But depending on the reason for the utter shittiness of the report, I think it might just warrant shutting the entire committee down and devolving oversight to real committees, like Judiciary, Homeland Security, and Armed Services. Remember, every single member of the committee, Democrat or Republican, signed this report. Every single one. For some reason, even fairly smart people like Adam Schiff and Jackie Speier signed off on something with inexcusable errors.

So I wanted to point to this passage on methodology.

The Committee’s review was careful not to disturb any criminal investigation or future prosecution of Snowden, who has remained in Russia since he fled there on June 23, 2013. Accordingly, the Committee did not interview individuals whom the Department of Justice identified as possible witnesses at Snowden’s trial, including Snowden himself, nor did the Committee request any matters that may have occurred before a grand jury. Instead, the IC provided the Committee with access to other individuals who possessed substantively similar knowledge as the possible witnesses. Similarly, rather than interview Snowden’s NSA coworkers and supervisors directly, Committee staff interviewed IC personnel who had reviewed reports of interviews with Snowden’s co-workers and supervisors.

So for this inexcusably shitty report, HPSCI did not interview:

  • Direct witnesses (presumably including the Compliance training woman whose email on 702 training is dodgy and probably also Booz and Dell contractors who might risk losing contracts)
  • Snowden’s co-workers
  • Snowden’s supervisors

They did interview:

  • People who possessed “substantively similar knowledge” as the people DOJ think might be witnesses at trial
  • People who reviewed reports of interviews with Snowden’s co-workers and supervisors

HPSCI spent two years but didn’t interview any of the direct witnesses.

Now, as a threshold matter, the publicly released emails provide good reason to doubt the adequacy of this indirect reporting on Snowden’s colleagues. Here’s how the Chief of NSA’s CI Division backed the conclusion that Snowden never talked about concerns about NSA surveillance with his colleagues.

Our findings are that we have found no evidence in the interviews, email, or chats reviewed that support his claims. Some coworkers reported discussing the Constitution with Snowden, specifically his interpretation of the Constitution as black and white, and others reported discussing general privacy issues as it relates to the Internet. Not one mentioned that Snowden mentioned a specific NSA program that he had a problem with. Actually, many of the people interviewed affirmed that he never complained about any NSA program. We also did not have any reflection that he asked anyone how he should/could report perceived wrongdoing.

So colleagues — who would presumably be in great fear of association with Snowden, especially in interviews with NSA’s Counterintelligence people — nevertheless revealed that they discussed the Constitution (and Snowden’s black and white interpretation of it) and general privacy issues about the Internet. “Many” of the interviewees said he never complained about any NSA program, which raises questions about what those excluded from this “many” said.

But it appears that NSA’s CI investigators only considered mention of specific programs to be a complaint, not general discussions about privacy and the Constitution.

We should assume the interview reports back to HPSCI members and staffers were similarly scoped.

There’s another reason I’m interested in this methodology section. That’s the implication from Spencer Ackerman’s series on SSCI’s Torture Report that CIA successfully used the John Durham investigation to undermine the SSCI investigation.

In August 2009, US attorney general Eric Holder expanded the remit of the prosecutor looking at the tapes destruction, John Durham, to include the torture program, much as the Senate committee had. The justice department’s new mandate was not as broad as the Senate’s. It would only concern itself with torture that exceeded the boundaries set for the CIA by the Bush-era justice department. Still, for all of Obama’s emphasis on looking forward and not backward, now the CIA had to face its greatest fear since launching the torture program: possible prosecution.

Holder’s decision, ironically, would ultimately hinder the committee more than the CIA, and lead to a criticism that the agency would later use as a cudgel against the Senate.

Typically, when the justice department and congressional inquiries coincide, the two will communicate in order to deconflict their tasks and their access. In the case of the dual torture investigations, it should have been easy: Durham’s team accessed CIA documents in the exact same building that Jones’s team did.

But every effort Jones made to talk with Durham failed. “Even later, he refused to meet with us,” Jones said.

Through a spokesman, Durham, an assistant US attorney in Connecticut, declined to be interviewed for this story.

The lack of communication had serious consequences. Without Durham specifying who at CIA he did and did not need to interview, Jones could interview no one, as the CIA would not make available for congressional interview people potentially subject to criminal penalty. Jones could not even get Durham to confirm which agency officials prosecutors had no interest in interviewing. “Regrettably, that made it difficult for our committee to do interviews. So the judgment was, use the record,” said Wyden, the Oregon Democrat on the panel.

[snip]

The CIA stopped compiling the Panetta Review in 2010 after Durham told Preston that CIA risked complicating any prosecution if it “made different judgments than the prosecutors had reached”, Charlie Savage reported in his 2015 book Power Wars.

Not only did CIA’s General Counsel Stephen Preston (who later served as DOD General Counsel from October 2013 until June 2015) use the Durham investigation to halt the CIA’s own internal investigation into the worthlessness of their torture, but it served as the excuse to withhold cooperation from SSCI. That, in turn, gave Republicans an excuse to disavow the report.

With the HPSCI report, an FBI investigation has again been used as an excuse to limit congressional oversight.

HPSCI’s failure to interview any of the relevant people directly is all the weirder given that there should be no problem for a witness to appear before both the grand jury and the committee. Certainly, House Oversight had no problem interviewing some of the subjects of the Hillary email investigation! And unlike the email investigation, with the Snowden one, few if any of the people who might serve as witnesses at any Snowden trial would be subjects of the investigation; they’d have no legal risk in also testifying to the committee. Snowden is the one at legal risk, and he has already been charged. And curiously, we’re hearing no squawking from Republicans about the necessity of direct interviews for the integrity of an investigation, like we heard with the Senate Torture Report.

One thing is certain: the public is owed an explanation for how HPSCI came to report knowably false information. The public is owed an explanation for why HPSCI is effectively serving as NSA’s propaganda wing.

And if we don’t get one, we should shut down the entire charade of post-Church Committee oversight committee.

DOD Complains about “Speculative” Risk of Bulk Collection

Maybe I have a sick sense of humor.

But I laughed at the irony of this NYT story about how Edward Snowden used a web-crawler to scrape data from the NSA’s servers.

In paragraphs 28 and 29 (of 29), Defense Intelligence Agency head Michael Flynn admits what he has avoided admitting in public hearings: he has no fucking clue what Snowden took.

The head of the Defense Intelligence Agency, Lt. Gen. Michael T. Flynn, told lawmakers last week that Mr. Snowden’s disclosures could tip off adversaries to American military tactics and operations, and force the Pentagon to spend vast sums to safeguard against that. But he admitted a great deal of uncertainty about what Mr. Snowden possessed.

“Everything that he touched, we assume that he took,” said General Flynn, including details of how the military tracks terrorists, of enemies’ vulnerabilities and of American defenses against improvised explosive devices. He added, “We assume the worst case.”

DOD doesn’t actually know what Snowden took. They know he had access to a bunch of files on military operations.

But that leaves open the question of how Mr. Snowden chose the search terms to obtain his trove of documents, and why, according to James R. Clapper Jr., the director of national intelligence, they yielded a disproportionately large number of documents detailing American military movements, preparations and abilities around the world.

But DOD doesn’t know whether he just touched them, or took them with him. It doesn’t know whether he deleted any he took before turning them over to journalists.

For his part, Snowden says DOD’s claims he deliberately took military information are unfounded.

In his statement, Mr. Snowden denied any deliberate effort to gain access to any military information. “They rely on a baseless premise, which is that I was after military information,” Mr. Snowden said.

Snowden suggests any military information he got, he got incidentally. DOD will just have to trust him.

Nevertheless, DOD will assume the worst because that’s the only way to protect DOD equities — and indeed, the lives of our military service members (that is, if Flynn’s claims are true; given his track record I don’t necessarily believe they are).

The necessity of protecting people and secret plans because of a potential risk is actually not funny at all. Indeed, it points to the problem inherent with bulk collection conducted in secret: Those potentially targeted by it have to assume the worst to protect themselves.

Mind you, if Sam Alito were a fair and balanced kind of guy, he’d tell DOD to suck it up. The risk of this bulk collection inflicting harm on military operations is speculative.

Respondents’ claim of future injury is too speculative to establish the well-established requirement that certain injury must be “certainly impending.”

But I think Alito is wrong. I definitely don’t fault DOD for adjusting to potential risks given the lack of certainty over which of their most sensitive secrets bulk collection has compromised.

If it is a problem that Snowden touched or maybe even incidentally collected data that could cause DOD great harm — if it is understandable that DOD would assume and prepare for the worst — then NSA needs to shut down its own indiscriminate scraping of data from all over the world. Because it is imposing the same kinds of risk and costs and worries to private individuals all over the world.

Update: Eli Lake got sources who received DIA’s briefing on their Snowden report to distinguish between what DIA knows and what they’re just assuming.

What Michael Flynn’s DIA Imputes to Facts We Know

Before I point to reasons why we should exercise some caution before we believe a DIA report claiming that Edward Snowden’s entire leak was orchestrated by the Russians, let me lay out the following.

First. until such time as we see evidence that the reported documents somehow inordinately benefit Russia (and/or see evidence that our cooperation with Russia isn’t increasing during the period of Snowden’s asylum there), I’m not much interested in the question. I’m still so busy — both between Snowden document reports and documents declassified in response to FOIAs in a false show of transparency — reading about programs Americans should have known, that I don’t have time or interest in this manufactured sideshow.

Second, I don’t know what Snowden’s relationship with Russia is (and suspect 99% of the people commenting don’t either). The claims Mike Rogers, in particular, made on Sunday are full of Clown Show logic problems, some of which Snowden debunked in a limited rebuttal in an interview with Jane Mayer. Some accusers and defenders are conflating what happened while Snowden was working at NSA and what happened after Snowden got stuck in Moscow. All that said, while we have no evidence of cooperation now, I fully expect Vlaidimir Putin tried all he could to get as much out of Snowden as he could.

I don’t know.

What I do know is that DIA under General Michael Flynn’s leadership seems to be developing a pattern of leaking sensational intelligence conclusions based on apparently bad logic at politically opportune moments.

The accusations against Snowden are from a DIA report that DIA’s Director, Michael Flynn, organized.

The Defense Department report was conducted by the Defense Intelligence Agency in coordination with other intelligence agencies across the government, according to two sources familiar with its findings. A spokesperson for the DIA said Lt. Gen. Michael Flynn, the agency’s director, organized a task force “to assess the potential impact to the Department of Defense from the compromise of this information.” But the spokesman did not say what, if any, conclusions the task force had reached about actual damage caused by documents Snowden took, regardless of whether they’ve been disclosed or not.

Admittedly, the conclusions of it got leaked with apparent White House permission. But it got leaked in the worst manner of Obama Administration asymmetric leaking, which have a history of being rather partial and politically self-serving.

Moreover, the entire orchestrated leak feels a lot like the “leak” last year — during heightened tensions between North and South Korea — of DIA’s conclusion that North Korea had the capability of launching a nuclear weapon on a ballistic missile. Republican Congressman Doug Lamborn, protected by Speech and Debate, revealed a detail that “accidentally” wasn’t redacted in a larger declassified finding. The “leak” fed a lot of fearmongering even as the Obama Administration was trying to temper responses.

A week after the initial leak, James Clapper and Flynn happened to testify before the Senate Armed Services Committee (the entire clip is worthwhile, but the particularly important parts start after 4:00). And in response to some Ted Cruz questions about North Korea, both Clapper and Flynn made it clear that the reason DIA had come to different conclusions than the rest of the Intelligence Community was because of the assumptions it had made. This inflammatory finding arose because of “a difference in how we judge assumptions,” Flynn explained. Clapper (who had spent a week trying to batten down the alarmism) said the debate arose from the “facts we know versus what we impute to those facts.”

That is, DIA had imputed conclusions to facts other agencies hadn’t.

According to its Director, DIA has a difference in how it judges assumptions from other intelligence agencies. And in this case, those who have read the DIA report appear to be repeating allegations remarkably divorced from any evidence, relying on wacky theories rather than real evidence.

Michael Flynn seems to be making a habit of this kind of analysis.

Growing Signs of Intelligence from Intelligence Community, or Just Another Turf War?

On Saturday, I wrote about a remarkable about-face taken by AP’s George Jahn in his reporting on Iran’s nuclear technology. Instead of following his usual routine of parroting leaks from US and Israeli sources meant to put Iranian intentions on nuclear technology in the worst possible light, Jahn instead wrote about how dependent the UN’s IAEA is on US intelligence to develop its evaluation of what is happening in Iran. Further, Jahn highlighted how US credibility on WMD intelligence was forever harmed by the overstated evaluations of Iraqi WMD leading up the invasion of Iraq in 2003. My post was written from the point of view that somehow Jahn had realized how badly he has been played by the intelligence community over the years and has now decided to question the reliability of the information being fed to him.

In comments on the post, Marcy considered whether the reversal could be framed in a different way:

Not to get all 11-dimensional, but any chance his sources asked him to leak this? That is, more stenography, but to justify reversing course?

In what could be yet another framing of what is happening in the intelligence community, Lara Jakes of AP worte an article published Monday in which she described what may be a movement within the intelligence community to promote what appears to be a healthy move toward reasoned debate among the various agencies within the intelligence community. Couching the opening of the article within the uncertainty over whether Osama bin Laden really was at the compound in Abbottabad where he was eventually killed, Jakes describes what appears to be a new movement toward debate:

As the world now knows well, President Barack Obama ultimately decided to launch a May 2011 raid on the Abbottabad compound that killed bin Laden. But the level of widespread skepticism that Cardillo shared with other top-level officials — which nearly scuttled the raid — reflected a sea change within the U.S. spy community, one that embraces debate to avoid “slam-dunk” intelligence in tough national security decisions.

Wow. Here we have a second AP reporter making a reference to the failed Iraq intelligence in 2003 only two days after Jahn’s introspective that cited the same failure. But, when she finally revisits the “slam-dunk” reference many paragraphs later, Jakes elides the most important factor that led to the intelligence failure. Here is her description: Read more

Guardian Lays Out Details of How Petraeus Organized Death Squads in Iraq

Petraeus salutes the death squads that advanced his career

Petraeus salutes the death squads that advanced his career

Yesterday, the Guardian published an article detailing how the US turned to the use of death squads in Iraq to quell the rise of Sunni militias. The article provides convincing evidence that this was an intentional policy and was in fact a central tenet of David Petraeus’ often-praised counterinsurgency, or COIN, strategy. The key person in the Guardian’s reporting is James Steele, who was a veteran in organizing Central American death squads on behalf of the US during the Reagan years.

In reading the material from the Guardian, however, it should be kept in mind that Petraeus did not institute his COIN strategy only in Iraq. He put it into place in Afghanistan as well, and the fact that it lead to widespread allegations of torture and murder there demonstrates that the atrocities committed by these militias is a feature of the funding and training provided to them and not an unfortunate outgrowth, because this practice has now produced death squads in Central America, Iraq and Afghanistan. Recall that less than two weeks ago, Hamid Karzai called for the expulsion of US Special Operations forces from Maidan Wardak province due to allegations of abuse by the Afghan Local Police there. The Afghan Local Police are in reality groups of local militias trained and funded by US Special Operations forces and operating separately from the Karzai government. The ALP became one of the primary features of Petraeus’ COIN strategy when he moved it to Afghanistan.

Here’s the opening of the Guardian article:

The Pentagon sent a US veteran of the “dirty wars” in Central America to oversee sectarian police commando units in Iraq that set up secret detention and torture centres to get information from insurgents. These units conducted some of the worst acts of torture during the US occupation and accelerated the country’s descent into full-scale civil war.

Colonel James Steele was a 58-year-old retired special forces veteran when he was nominated by Donald Rumsfeld to help organise the paramilitaries in an attempt to quell a Sunni insurgency, an investigation by the Guardian and BBC Arabic shows.

Via email, my friend Kirk pointed out this report from Newsweek back in early 2005 where the concept of the Salvador option was floated openly by the Bush administration:

What to do about the deepening quagmire of Iraq? The Pentagon’s latest approach is being called “the Salvador option”–and the fact that it is being discussed at all is a measure of just how worried Donald Rumsfeld really is. “What everyone agrees is that we can’t just go on as we are,” one senior military officer told NEWSWEEK. “We have to find a way to take the offensive against the insurgents. Right now, we are playing defense. And we are losing.” Last November’s operation in Fallujah, most analysts agree, succeeded less in breaking “the back” of the insurgency–as Marine Gen. John Sattler optimistically declared at the time–than in spreading it out.

Now, NEWSWEEK has learned, the Pentagon is intensively debating an option that dates back to a still-secret strategy in the Reagan administration’s battle against the leftist guerrilla insurgency in El Salvador in the early 1980s. Then, faced with a losing war against Salvadoran rebels, the U.S. government funded or supported “nationalist” forces that allegedly included so-called death squads directed to hunt down and kill rebel leaders and sympathizers. Eventually the insurgency was quelled, and many U.S. conservatives consider the policy to have been a success–despite the deaths of innocent civilians and the subsequent Iran-Contra arms-for-hostages scandal. (Among the current administration officials who dealt with Central America back then is John Negroponte, who is today the U.S. ambassador to Iraq. Under Reagan, he was ambassador to Honduras. There is no evidence, however, that Negroponte knew anything about the Salvadoran death squads or the Iran-Contra scandal at the time. The Iraq ambassador, in a phone call to NEWSWEEK on Jan. 10, said he was not involved in military strategy in Iraq. He called the insertion of his name into this report “utterly gratuitous.”)

The most disgusting aspect of this apparent “trial balloon” floated by the Bush administration is that the program quite possibly was already underway when the Newsweek article came out. The Guardian article reminds us that Petraeus, the architect of this program,  was sent to Iraq in June of 2004 (this was his second deployment to Iraq) to begin training Iraqis, and the Newsweek article wasn’t published until January of 2005. Steele, who was reporting directly to Rumsfeld, first went to Iraq in 2003 (Rumsfeld delighted in running his own people separately from the chain of command; he did this at times with McChrystal as well).

More evidence that the program was entirely intentional comes from the role of torture in the program and the moves the US made to ignore torture just as the program was put into place. Read more