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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.

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.

Five Data Points on the Sessions News

As you no doubt have heard, Jeff Sessions met twice with Russian Ambassador Sergey Kislyak last year, then told the Senate Judiciary Committee he had either not talked about the election with any Russians (a written response to Patrick Leahy’s question) or not talked with Russians as a surrogate of the campaign (an oral response to Al Franken).WSJ describes the probe as reviewing stuff in spring of last year, so before the July contact with Kislyak. Thus far, Sessions, his spox, and anonymous Trump official have offered three conflicting explanations for Sessions’ non-disclosure, including Sessions’ own, “I have no idea what this allegation is about. It is false.”

Already, Democrats are demanding Sessions’ resignation and more Democrats and some Republicans are calling for him to recuse himself for the FBI counterintelligence investigation. The Twittersphere is calling for prosecution for perjury.

Update: WSJ had originally said Sessions and Kislyak spoke by phone, then corrected to in-person. According to this, he had one of each, with a phone followup several days after the in-person. Which means there’d be a transcript.

Jeff Sessions will almost certainly not be prosecuted for perjury

Which brings me to my first data point. Jeff Sessions is not going to be prosecuted for perjury. And that’s true for more reasons than that he is the AG.

First, it’s a hard crime to prove, because you have to prove that someone knowingly lied. Right now Sessions is all over the map, but he’s also dumb enough to be able to feign stupidity.

Plus, lying to Congress just doesn’t get prosecuted anymore. Remember, Alberto Gonzales lied in his own confirmation hearing in 2005, claiming there were no disagreements about Stellar Wind. It was always clear that was a lie, but even after Jim Comey confirmed that was the case with his May 2007 SJC hospital heroes performance, AGAG stuck around for another three months. And while his lie has often been cited as the reason for his departure in August 2007, I believe that the proximate reason is that he refused to do something Bush wanted him to do, at which point the White House threw him under the bus.

Plus, there are already at least three Trump officials who lied in their confirmation hearings — Mnuchin on his role in robosigning, DeVos on her role in the Prince family foundation, and Pruitt on his use of private emails. None of them are going anywhere.

Finally, in 2013, Holder’s DOJ went way out of its way to protect former DOJ official Scott Bloch from doing time after he lied to the House Oversight Committee. That precedent will make it all the harder to hold anyone accountable for lying to Congress in the future.

The timing of this roll-out gets more and more interesting

Now consider the timing of how all this rolled out.

In another blockbuster (revealing that the Obama Administration squirreled away information on Trump’s advisors to protect informants IDs from him, but also to ensure incriminating information would be available for others), NYT reveals that, after Putin’s non-response to Obama’s December 28 sanctions raised concerns, the FBI found Mike Flynn’s contacts with Kislyak on January 2.

On Jan. 2, administration officials learned that Mr. Kislyak — after leaving the State Department meeting — called Mr. Flynn, and that the two talked multiple times in the 36 hours that followed. American intelligence agencies routinely wiretap the phones of Russian diplomats, and transcripts of the calls showed that Mr. Flynn urged the Russians not to respond, saying relations would improve once Mr. Trump was in office, according to multiple current and former officials.

On January 10, the Trump dossier began to leak. Al Franken actually used that as the premise to ask Sessions about contacts with the Russians.

On January 12, David Ignatius published the first word of the Flynn-Kislyak calls, alerting anyone dumb enough not to already know that the FBI was going through Kislyak’s ties with Trump officials.

This had the effect of teeing up Flynn as a target, without giving Sessions (and other Trump officials) that their contacts with Kislyak were being scrutinized. And only after Flynn’s departure has this Sessions stuff come out.

I imagine someone in the White House Counsel’s office is now reviewing all the metadata and transcripts tied to Kislyak to see who else had curious conversations with him.

The claim Kislyak is the top spy recruiter

CNN’s version of this story and a separate profile of Kislyak insinuates that Session’s contact with Kislyak by itself is damning, because he “is considered by US intelligence to be one of Russia’s top spies and spy-recruiters in Washington.”

Current and former US intelligence officials have described Kislyak as a top spy and recruiter of spies, a notion that Russian officials have dismissed. Kremlin spokesman Dmitri Peskov said that “nobody has heard a single statement from US intelligence agencies’ representatives regarding our ambassador,” and attacked the “depersonalized assumptions of the media that are constantly trying to blow this situation out of proportion.”

Even aside from the fact that two Democrats — Joe Manchin of his own accord, and Claire McCaskill after she claimed never to have spoken with Kislyak — have also had contact with him, this seems like a red herring. No matter what Kislyak’s intention, it is still acceptable for someone to meet with a person presenting as a diplomat (for example, no one used to care that Saudi Arabia’s Bandar bin Sultan was running ops when he was Ambassador to the US).

Moreover, if current and former US intelligence officials are so sure Kislyak is the master spook in the US, why wasn’t he at the top of the Persona Non Grata list of 35 diplomats who got ejected at the end of December (though, as I’ve noted in the past, the Russian press was talking about him being replaced).

The delayed preservation request

Yesterday, AP reported that Don McGahn instructed White House officials on Tuesday to retain information relating to Russian contacts.

One official said McGahn’s memo instructs White House staff to preserve material from Trump’s time in office, and for those who worked on the campaign, relevant material from the election.

But the timing of this actually raises more questions. Preservation requests first went out February 17. Reince Priebus admitted knowing about it on the Sunday shows February 19. Sometime during the week of February 20-24, Sean Spicer with Don McGahn conducted a device check with White House staffers to see whether staffers were using Signal or Confide, the latter of which automatically deletes texts, the former of which can be set to do so (after Spicer warned everyone not to leak about the device check, it leaked).

And yet, McGahn only gave preservation instructions on February 28?

Now it’s possible the White House didn’t receive one of the letters sent on February 17 (which would raise other questions), which seems to be the implication of the AP report. But if it did, then McGahn sat on that preservation request for over 10 days, even while being involved in activities reflecting an awareness that staffers were using apps that thwarted retention rules.

Some things can’t be prosecuted

Contrary to what you may believe, thus far none of these reports have confirmed a smoking gun, and the NYT pointedly makes it clear that its sources are not claiming to have a smoking gun (which may not rule out that they have one they’re not yet sharing).

The nature of the contacts remains unknown. Several of Mr. Trump’s associates have done business in Russia, and it is unclear if any of the contacts were related to business dealings.

But consider that smoking guns may be different depending on what they are. That’s true because somethings may be perfectly legal — such as investments from shady Russians — that nevertheless pose a serious counterintelligence risk of compromise going forward.

Its all the more true when you factor in the role of Sessions and Trump. For some of this stuff (including the September meeting with Kislyak) Sessions will be protected by Speech and Debate. It’d be very hard for DOJ to prosecute Sessions for stuff he did as a Senator, even assuming you had someone else in charge of the investigation or department.

Likewise, other crimes may not rise to the level of criminal prosecution but would rise to the level of impeachment. Which is why this passage from the NYT is so interesting.

Obama White House officials grew convinced that the intelligence was damning and that they needed to ensure that as many people as possible inside government could see it, even if people without security clearances could not. Some officials began asking specific questions at intelligence briefings, knowing the answers would be archived and could be easily unearthed by investigators — including the Senate Intelligence Committee, which in early January announced an inquiry into Russian efforts to influence the election.

If FBI judged it could not prosecute Trump or his close associates for something but nevertheless believed the evidence constituted something disqualifying, what they’d want to do is preserve the evidence, make sure SSCI could find it, and provide tips — laid out in the NYT, if need be — about where to look.

And any things that did rise to the level of criminal charges would be a lot easier to charge if someone besides Sessions were in charge.

This seems to be very methodical.

Update: February for January preservation date requests corrected. h/t TN.

Devin Nunes Doesn’t Think Donald Trump Should be Subject To the Kind of “Witch Hunt” He Conducted with Edward Snowden

We know what a Devin Nunes-led investigation into possible Russian compromise looks like. Just in December, after all, the House Intelligence Committee released their investigation into Edward Snowden.

Using the Snowden investigation as a guide, we know that HPSCI believes that if there’s an ongoing investigation, it should avoid speaking to anyone who knows evidence first-hand. It can instead rely on the impressions of people who don’t like the target of the investigation, as HPSCI did for claims that Snowden went to a hackers conference in China. It can also avoid reviewing official records, including public school records or even official Army records. Rather than do that, it may rely on imprecise citations of public reporting, interpreted in the light designed to be most damning. Any lies told — such as Snowden’s cover story that he’d be undergoing epilepsy treatment or Mike Flynn’s lies to Mike Pence — are themselves evidence of the worst possible guilt. Numbers are interpreted in the most damning possible light, even if more recent and informed numbers suggest something far less damning; those damning numbers came, in Snowden’s case, from a decision made by former DIA Director and recently fired National Security Advisor Flynn to assume any contact involved potential compromise.

Very importantly, HPSCI’s standard is that if anyone alleges contact between Russians and the target of an investigation, they should believed, even if that person is not in a position to know first hand. According to HPSCI standard, it is permissible to rely on dubious translations of Russian comments.

That’s the standard a Devin Nunes-led investigation holds to — or at last held to, with Snowden — before it deems an American citizen a traitor (irrespective of the very specific requirements of a treason charge).

Now, you can certainly argue that that’s a horrible standard for an intelligence committee investigation into allegations that an American citizen is spying for Russia. I have made that argument myself. But that is the standard HPSCI very recently set for serious allegations of possible intelligence compromises involving Russia.

Which is mighty curious, because Devin Nunes just gave a press conference claiming, categorically, that no Trump campaign personnel had any contact with any Russian official. That, in spite of public reporting relying on an interview with Russian Ambassador Sergey Kislyak that said his contacts with Trump campaign advisor Mike Flynn went back before November 8. That’s pretty good evidence that Trump’s campaign was in contact with a Russian official. (Later in his presser, Nunes acknowledged that Flynn spoke with Russia, though suggested that happened after Trump became President-Elect.)

And if Nunes applied the same standard to Trump’s associates he applied to Edward Snowden, then clearly the allegations in the Trump dossier should be presumed to be true (again, I’m not advocating for this, I’m talking about what would happen if HPSCI applied the same standard). That would mean Carter Page’s contacts with Kremlin Internal Affairs official Diyevkin would count as evidence of a contact. Carter Page’s other contacts were not named. Michael Cohen’s, which were alleged to be even more inflammatory, were done with Russian Presidential Administration figures working under cover, but would seem to meet the Nunes HPSCI standard. Paul Manafort’s contacts were with Ukrainians.

Finally, if HPSCI applied the same standards they did with Snowden, then the claims from Sergei Ryabkov that there were discussions before the election should amount to sufficient evidence to substantiate the claim.

Devin Nunes invoked McCarthyism in insisting his committee shouldn’t just investigate American citizens without evidence. But he apparently extends that standard differently to men on whose transition team he served.

Susan Collins Implies She Could Be a Swing Vote in SSCI’s Investigation of the Russian Hack

The other day, I explained why we should remain skeptical of the congressional investigations into the Russian hack. Most importantly, I questioned Richard Burr’s seriousness. The investigation should be done by the House and/or Senate Intelligence Committee, and both Chairs of those committees have had Trump appointments in the last year.

That said, this Maine Public Radio interview with Susan Collins may provide reason for hope (see after 10 minutes and 39 minutes).

In it, she reiterated promises — made in the agreement on the inquiry — that the committee would do open hearings and release a public report.

I will encourage that there’ll be some public hearings as well as the closed hearings that we’re doing now and that we issue a report.

She also noted that she and others intend to call Mike Flynn to testify (though she didn’t say whether the interview would be open or not). Note, National Security Advisors cannot be subpoenaed (which is one basis why Devin Nunes said they couldn’t call Flynn).

I am going to request, many members are, that we call Steve Flynn–Mike Flynn, the former National Security Advisor to testify before us.

In addition, after 30 minutes, in response to a caller insisting that the inquiry be public, Collins noted that Republicans have just a one vote majority on the committee (though she didn’t point out that she could be the swing voter).

She was asked if she would subpoena Trump’s tax returns, and on that she said it would depend on Burr and Mark Warner. We shall see whether Warner has the chops to force that issue.

On both torture and drone memos, Collins has been willing to serve as a swing voter on SSCI before. If she does so here, it could make a difference.

 

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.

David Ignatius’ Curious Role in the Mike Flynn Story

I’m traveling again, so I’m running on delayed coverage of the Trump circus.

But I wanted to point out something that has been puzzling me: David Ignatius’ curious role in the events leading up to the forced resignation of Mike Flynn as President Trump’s National Security Adviser.

After all, Ignatius set off the events with this article. The article included two curious details. First, in an update to the story, Ignatius stated as fact that the Russian plane carrying a military choir to Syria had been shot down.

This official later added that Flynn’s initial call was to express condolences to Kislyak after the terrorist killing of the Russian ambassador to Ankara Dec. 19, and that Flynn made a second call Dec. 28 to express condolences for the shoot-down of a Russian plane carrying a choir to Syria.

Perhaps this was a mistake, but no cause for the crash has been reported (and it’d be even more curious if Trump’s people knew this was a shoot-down right away, given the lack of public accounting for it). There has been no follow-up about who shot down this plane (and little claim that it was terrorism).

More importantly for the Flynn story, Ignatius reported the December 29 calls between Sergey Kislyak and Flynn, the first public mention of them.

According to a senior U.S. government official, Flynn phoned Russian Ambassador Sergey Kislyak several times on Dec. 29, the day the Obama administration announced the expulsion of 35 Russian officials as well as other measures in retaliation for the hacking. What did Flynn say, and did it undercut the U.S. sanctions? The Logan Act (though never enforced) bars U.S. citizens from correspondence intending to influence a foreign government about “disputes” with the United States. Was its spirit violated? The Trump campaign didn’t immediately respond to a request for comment.

If the Trump team’s contacts helped discourage the Russians from a counter-retaliation, maybe that’s a good thing. But we ought to know the facts.

Ignatius not only knew of the calls, but he knew enough to ask the question — which the FBI would later pose to Flynn in an interview — about whether Flynn had undercut US sanctions. In response to his mention of the calls, other journalists followed up with Mike Pence, which ultimately led to the excused reason for Flynn’s firing, that he had lied to Pence about the calls. Frankly, that questioning also clearly led to Flynn correcting his story between February 8 and 9, which suggests he may have reviewed the transcripts in the interim.

While Ignatius’ report is mentioned in a WaPo timeline of these events, he’s not bylined in either of the two big bombshells from WaPo on this, even though up to seven journalists are mentioned.

There are two obvious explanations. First, that Ignatius’ column, which serves as a mouthpiece for the IC (and especially CIA), is not generally treated in the same way other journalism at the WaPo is. And possibly, specifically in this case, if that reference were treated as reporting rather than speculation, it might lead Trump’s leak investigation back to the source that kicked off this leak fest. But by posing it as speculative questioning, it protects that original source.

Whatever the explanation is, I think the odd circumstances surrounding the story invite further attention to two of the other questions Ignatius poses in that column. He asked, for example, whether Obama delayed his response to the Russian out of fears Russia would do something worse to Hillary.

Did the administration worry that the Russians would take additional steps to hurt Clinton and help Trump, and might disrupt balloting itself?

According to public reports, Obama twice raised probes of registration databases directly with Putin; after the election the IC included them among Russia’s roles. What exactly was the Obama Administration worried about here?

And Ignatius also asked a question I’ve heard floated (which is one reason I focused so intently on the curious forensic details about the dossier): that the Russians themselves released the anti-Trump dossier compiled by Christopher Steele to sow further chaos (and, presumably, to hurt Trump).

Finally, what’s the chance that Russian intelligence has gamed its covert action more subtly than we realize? Applying a counter-intelligence lens, it’s worth asking whether the Russians hoped to be discovered, and whether Russian operatives fed the former MI6 officer’s controversial dossier deliberately, to sow further chaos.

Clearly, Ignatius’ source on the Flynn call with Kislyak advanced the story in a direction that led to Flynn’s firing. What else were Ignatius’ source or sources for the this story trying to lead reporting to?

Four Details about Surveillance and the Flynn Ouster

It turns out Trump is on pace to fire a person every week, just like in his reality show. As you surely know, Mike Flynn has been ousted as National Security Advisor, along with his Deputy, KT McFarland.

There has been some confusion about what intelligence the spooks who just caused Flynn to be fired relied on. So let’s start with this detail from last night’s WaPo story:

After the sanctions were rolled out, the Obama administration braced itself for the Russian retaliation. To the surprise of many U.S. officials, Russian President Vladimir Putin announced on Dec. 30 that there would be no response. Trump praised the decision on Twitter.

Intelligence analysts began to search for clues that could help explain Putin’s move. The search turned up Kislyak’s communications, which the FBI routinely monitors, and the phone call in question with Flynn, a retired Army lieutenant general with years of intelligence experience.

From that call and subsequent intercepts, FBI agents wrote a secret report summarizing ­Flynn’s discussions with Kislyak.

That is, in response to questions elicited by Putin’s response, analysts actually read the intercepts of the Flynn-Kislyak call, which led to further monitoring of the conversations. And contrary to what HPSCI Chair Devin Nunes is whining, FBI would have access to Flynn’s side of the call right away, because they would own the tap (and in any case, they’d get unminimized copies of anything from NSA).

Some have pointed to this passage to suggest that the FBI was always listening in.

U.S. intelligence reports during the 2016 presidential campaign showed that Kislyak was in touch with Flynn, officials said. Communications between the two continued after Trump’s victory on Nov. 8, according to officials with access to intelligence reports on the matter.

It’s quite likely that’s not the case. After all, even Michael McFaul (who served as Ambassador to Russia at the beginning of the Obama Administration) said it was normal to have such calls before inauguration. Moreover, the FBI wouldn’t need to access the content of communications to learn that they were taking place. The metadata would be enough. And the actual content of the contacts would remain in some server in Utah.

Also, some have suggested that Flynn must be the Trump associate against whom a single FISA order was obtained in October. That’s unlikely, first of all, because if there were a FISA order on Flynn, then the FBI wouldn’t have needed the weird Putin response to lead them to read the actual content of calls (not to mention, the WaPo is clear that the contacts were collected as a result of normal monitoring of a foreign diplomat). Furthermore, most reports of that FISA order suggest the FBI first asked for four orders (in June and July) but only got one, in October. So it’s likely that FISA order covers another of Trump’s Russian buddies.

Finally, remember that for a great deal of SIGINT, FBI wouldn’t need a warrant. That’s because Obama changed the EO 12333 sharing rules just 4 days after the IC started getting really suspicious about Flynn’s contacts with Russia. That would make five years of intercepts available to FBI without a warrant in any counterintelligence cases, as this one is.

Update: Corrected KT McFarland instead of KC. Also, I’ve been informed she’ll stick around until Trump names a new NSA.

Charles Cooper, Who Sanctioned Delayed Notification of Covert Ops to Congress, Reportedly to Be Solicitor General

Update: According to the Hill, Cooper has withdrawn from consideration.

Yesterday, SCOTUSblog reported that Charles Cooper is likely to be named Trump’s Solicitor General.

Cooper is a close friend of Sen. Jeff Sessions, the Alabama lawmaker whom Trump has nominated to serve as attorney general, and helped to prepare Sessions for his confirmation hearings. Like Sessions, Cooper could prove to be a controversial pick. In addition to his role defending California’s ban on same-sex marriage, Cooper also signed a brief on behalf of the federal government supporting Bob Jones University in its challenge to the constitutionality of an Internal Revenue Service policy denying tax exemptions to religious institutions that discriminate based on race. The university had argued that its ban on interracial dating was based on its sincere religious beliefs, but the Supreme Court upheld the IRS policy, by a vote of 8-1. And in 1986, as the head of the Office of Legal Counsel, Cooper signed an OLC opinion that argued that employers could reject job applicants with AIDS if they were concerned about contracting the disease.

I take this solace out of the fact that a soul mate to Jeff Sessions will be appointed to Solicitor General. In Cooper’s most public recent work, the Prop 8 case, Cooper got his ass handed to him by facts and law. If he were to argue as poorly for Trump’s policies, it might help the courts keep the President’s excesses under check.

That said, there are things I’m gravely concerned about, with regards to the Cooper pick. I’m trying to figure out whether he is the author of the OLC memo stating that a President can ignore his own Executive Orders, the original pixie dust opinion.

But he is definitely the author of this Iran-Contra related opinion, stating that the President can delay notification on covert ops to Congress.

Section 501(b) of the National Security Act of 1947 must be interpreted in the light of § 501 as a whole and in light of the President’s broad and independent constitutional authority to conduct foreign policy. The requirement that the President inform certain congressional committees “in a timely fashion” of a foreign intelligence operation as to which those committees were not given prior notice should be read to leave the President with discretion to postpone informing the committees until he determines that the success of the operation will not be jeopardized thereby. Because the recent contacts with elements of the Iranian government could reasonably have been thought to require the utmost secrecy, the President was justified in withholding § 501(b) notification during the ongoing effort to cultivate those individuals and seek their aid in promoting the interests of the United States.

Effectively, Cooper came in, after the fact, and said it was no big deal that Ronald Reagan didn’t tell Congress he was negotiating with a sworn enemy of the United States to get around funding restrictions they had put into place. The opinion has been used since to keep Congress in the dark about things it should know — including, ironically, some of Obama’s negotiations with Iran.

Hawks should be most concerned, however, that Trump would use this to free Mike Flynn to negotiate with Russia and Syria without notice to Congress. Me, I’d be more worried that it would be used (again) to hide a torture program from Congress.

Our Syrian Rebels Are Issuing Threats Via WaPo

This is a striking article in the WaPo. It deals extensively with setbacks rebels in Syria have already suffered at the hand of Russia’s campaign. But it bears this headline, as if Trump’s administration, not Russian intervention (and Obama’s mixed commitment), is the key change.

Fearing abandonment by Trump, CIA-backed rebels in Syria mull alternatives

As I said, the story provides plenty of evidence the real change here stems from Russian involvement, not Trump’s election. But Trump’s election provides a way for a bunch of people to issue threats about what rebels might do in response to their fading fortunes.

The story quotes some anonymous US officials which likely includes Adam Schiff, who is also quoted by name, as well as an anonymous “U.S.-vetted rebel commander” who apparently speaks for the thousands the article claims to represent, and Qatar’s foreign minister Mohammed bin Abdulrahman Jassim al-Thani, suggesting that if rebels aren’t helped more America’s alliance with the Gulf States may be in trouble. It also lays out what Trump’s incoming team, including Mike Flynn and James Mattis, might feel about how a Syrian win would help Iran.

I’m most interested in this part of the article, in which a single US official lays out a certain narrative about the US backed rebels — basically pretending that the covert program has worked.

The possibility of cutting loose opposition groups it has vetted, trained and armed would be a jolt to a CIA already unsettled by the low opinion of U.S. intelligence capabilities that Trump had expressed during his presidential campaign.

From a slow and disorganized start, the opposition “accomplished many of the goals the U.S. hoped for,” including their development into a credible fighting force that showed signs of pressuring Assad into negotiations, had Russia not begun bombing and Iran stepped up its presence on the ground, said one of several U.S. officials who discussed the situation on the condition of anonymity because they were not authorized to speak publicly.

The United States estimates that there are 50,000 or more fighters it calls “moderate opposition,” concentrated in the northwest province of Idlib, in Aleppo and in smaller pockets throughout western and southern Syria, and that they are not likely to give up.

“They’ve been fighting for years, and they’ve managed to survive,” the U.S. official said. “Their opposition to Assad is not going to fade away.”

Not only does this passage far overstate the success of US efforts, but it — like Qatar’s foreign minister — threatens that these armed men won’t go away if the US backs Assad.

No matter what you think of US efforts in Syria, this kind of narrative from the people who’ve backed an unsuccessful covert program is fairly disturbing, as if even the US officials in the story are siding with the more explicit threats from Qatar against the US.

Yes, if Trump really remains committed to his promised partnership with Russia (assuming he and the nutjobs he has hired can manage that relationship, which I doubt), the rebels will side with Qatar (and the Saudis and who knows what Erdogan will do?) against Assad — which has basically been what they’ve been doing all this time anyway. Yes, if that happens, the US will lose its leverage over Qatar, with potentially dangerous consequences.

But this sounds awfully close to Americans turning against American policy, no matter how untutored Trump is.