[Photo: National Security Agency, Ft. Meade, MD via Wikimedia]

Ned Price Rebuts HPSCI’s Ignorance on Unmasking with His Own Stupid Obfuscation

Former Obama NSC staffer Ned Price has a piece on Section 702 at Lawfare that embodies the stupidity surrounding Section 702 reauthorization debate. He apparently doesn’t realize it, but his post effectively argues, “the people in Congress who oversee FISA have no clue how it works but reauthorize it forever anyway.”

Price’s post features all the typical things that Section 702 boosterism does: the false pretense that the value of Section 702 means it must be passed without even the most obvious reforms, such as ensuring FISC uses an amicus during the annual recertification so they know more than Rosemary Collyer did in this year’s go-around.

Administration officials privately concede that, in light of this conflation, Section 702 stands little chance for a clean reauthorization later this year.


White House officials have vocally supported the clean reauthorization of Section 702 authorities.

Nor does Price admit that when he says “clean reauthorization” what he really means is “dramatic change to the norm, because it’d be permanent reauthorization.”

Further, like most 702 booster pieces, Price dismisses the real complaints of those of us who’ve raised concerns about 702, without even responding to them.

To be sure, several lawmakers from both parties have long voiced opposition to Section 702 over sincerely held, if misguided, concerns about privacy and civil liberties.

Instead of doing that, Price hauls out the old canard that this is not about “surveillance” of Americans.

All the while, law enforcement and intelligence officials—including former FBI director James Comey, Director of National Intelligence Dan Coats, and National Security Agency Director Mike Rogers—reminded lawmakers in hearing after hearing this year that the tool is not intended for surveillance of U.S. citizens,

In one of those hearings where, Price claims, these men offered reassurances about the surveillance of Americans, Coats lied about whether 702 will collect entirely domestic communications, after having just signed a certificate saying it could. And Rogers was less than forthcoming about NSA’s repeated and consistent failures to inform FISC of compliance problems in timely fashion. As I said after the key one, “given the dodgy testimony of the two men running that dragnet, Americans should have more worries than ever before.”

Worse, Price is engaged in the same old fiction: in spite of the fact that witnesses and members of Congress have made it clear for years that a key purpose of 702 is to learn what Americans are saying to 702 targets, he wields that word “target” as if it doesn’t affect Americans. It does. It permits the warrantless access to Americans’ communications, and is queried routinely by the FBI even before they open investigations on someone. If you won’t honestly deal with that, you’re unwilling to defend the program as it exists.

But all that’s just the typical 702 boosterism, which serves as backdrop for Price’s central project: to explain how Devin Nunes’ panic about unmasking this year threatens 702 reauthorization.

Within the pantheon of Trump administration scandals, the manufactured uproar over “unmasking” came and went quicker than most. It was last spring that White House officials, working in tandem with House intelligence committee Chairman Devin Nunes, laundered intelligence information in an effort to train Americans’ sights on a practice that is routine—if highly regulated—within our national security establishment.

The effort blew up in their faces. The House Ethics Committee opened an investigation into Nunes,  who partially recused himself from the Russia investigation. The White House staffer who oversaw the secret political operation has since been fired. Even prominent Republicans, including Richard Burr, the chairman of the Senate intelligence committee, have publicly distanced themselves from the affair.

Price is right that Nunes’ stunt was a manufactured scandal. That’s something I’ve been saying for months.

But along the way he engages in the same kind of stupidity as the hacks he criticizes. First, he suggests that unmasking is an entirely separate issue than 702.

Nevertheless, administration allies on Capitol Hill have repeatedly obscured those facts, publicly conflating Section 702 authorities with unmasking and leaking,

While I’ve long pointed out that back door searches Price ignores are the more common way Americans would have their communications exposed by 702 surveillance, it is nevertheless the case that Americans whose names appear in reports based off 702 are usually eventually unmasked.

ICTR provided better information on unmasked US person identities this year than last, revealing how many USP identities got released.

As I said last year, ICTR is not doing itself any favors by revealing what a tiny fraction of all 702 reports the 3,914 — it must be truly miniscule.

All that said if you do get reported in one of those rare 702 reports that includes a USP identity, chances are very good you’ll be unmasked. In 30% of the reports with USP identities, last year, at least one USP identity was released in original form unmasked (as might happen, for example, if Carter Page or Mike Flynn’s identity was crucial to understanding the report). Of the remainder, though, 65% had at least one more US person identity unmasked. I believe that means that only roughly 26% of the names originally masked remained masked in the reports.

You actually cannot separate 702 from questions about how Americans’ communications get accessed without a warrant via the authority, and contrary to what Price suggests, unmasking is one of those ways (albeit the less troubling and less common).

More importantly, Price ignores what the unmasking scandal proves.  He cites both Trey Gowdy and Tom Rooney (whom he calls Tim) raising concerns about 702 because of the treatment of Title I intercepts targeting Sergey Kislyak. He specifically describes Gowdy’s comments as being “impermeable to fact.”

The political narrative, however, has thus far proven impermeable to fact. Rep. Trey Gowdy, a proponent of Section 702, last month summarized the zeitgeist of his caucus, telling Bloomberg: “A lot of my colleagues right now are very skeptical of reauthorizing this because of how little we know about unmasking.”

But what Price doesn’t tell you is that both Gowdy and Rooney (and Mike Lee, whose citation I think Price uses disingenuously) are the key overseers in Congress of FISA. As I noted in March when Gowdy and Rooney first started pursuing this hoax, these comments prove that the people purportedly closely overseeing NSA and FISA have no fucking clue how FISA works.

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?

So it’s not just that Price misrepresents the risk to Americans (more often brown people, not top White House officials) from 702, or that he pretends unmasking is completely separate from 702, but he actually proves that the people overseeing the authority don’t understand it.

And based on that argument, Price says we should reauthorize the authority forever.

The White House Attempts to Unring the Election Integrity Fearmongering

Over the weekend, the White House gave the NYT a statement on the integrity of our elections that deserves more attention. Here it is, in full:

The Kremlin probably expected that publicity surrounding the disclosures that followed the Russian Government-directed compromises of e-mails from U.S. persons and institutions, including from U.S. political organizations, would raise questions about the integrity of the election process that could have undermined the legitimacy of the President-elect. Nevertheless, we stand behind our election results, which accurately reflect the will of the American people.

The Federal government did not observe any increased level of malicious cyber activity aimed at disrupting our electoral process on election day. As we have noted before, we remained confident in the overall integrity of electoral infrastructure, a confidence that was borne out on election day. As a result, we believe our elections were free and fair from a cybersecurity perspective.

That said, since we do not know if the Russians had planned any malicious cyber activity for election day, we don’t know if they were deterred from further activity by the various warnings the U.S. government conveyed.

As the NYT noted in its introduction to this statement, the person who released this statement (my guess is Ned Price, but that’s just a wildarseguess) would not let him or herself be identified. While this is a long-time habit of the Obama Administration (one that merely exacerbated a Bush habit), consider what it means that a statement intended to increase confidence about our electoral process was issued anonymously.

You’re doing it wrong.

The statement itself highlights the perverse effect of all the fearmongering about Russia hacking our elections.

Let’s start with the last paragraph. “We do not know if the Russians had planned any malicious cyber activity for election day [… or] if they were deterred.” This suggests that at no time before the election did anyone in the White House know of plans to disrupt the election. That’s an important detail, because many sloppy journalists have consistently misread reports of the hacking of voter registration lists from a Russian hosting service but that may not have even been Russians must less the Russian state to mean that the Russian state was trying to hack the election itself. While there was one late report that suggests FBI may have gotten more reason to believe these polling list probes were Russian state entities, this statement seems to refute that.

Indeed, the second paragraph seems to back that. “The Federal government did not observe any increased level of malicious cyber activity aimed at disrupting our electoral process on election day.” The White House, now explicitly speaking for the entire Federal government, says that there was no increased malicious cyber activity aimed at disrupting election day, regardless of the actor. While it’s certainly possible known probes of registration lists continued, according to this statement they didn’t accelerate as the election drew near. This makes it more likely these probes were identity theft related, not Russian state tampering.

If there was no there there to all the claims of Russian hacking our election infrastructure (which is distinct from claims that Russia hacked the DNC and other political organizations, which is something our spooks do as well), then why didn’t the White House stop all the fearmongering about the election infrastructure beyond the joint ODNI/DHS statement that admitted there was no conclusive evidence that was happening?

That’s where this statement starts.

The Kremlin probably expected that publicity surrounding the disclosures that followed the Russian Government-directed compromises of e-mails from U.S. persons and institutions … would raise questions about the integrity of the election process that could have undermined the legitimacy of the President-elect.

They’re not even saying “rais[ing] questions about the integrity of the election” is what “the Kremlin” (“the Kremlin” has served as a very sloppy metonymy throughout this discussion) had in mind. They’re just guessing that the intent existed.

Throughout the discussion of Russian hacking, the entire point of it has been one of the weakest points of the allegations: no one ever provided a credible explanation for how releasing validated copies of real emails could undermine the election. The strongest case I saw made is that the emails provided something that Trump himself, his true-believers, Macedonian teenagers, and Russian propagandists could hang false stories onto; but that’s no different from what happened to official Hillary emails released under FOIA (to say nothing of FBI leaks about same) or actual events like Hillary’s pneumonia. Those people can make lies up about anything and they don’t need Podesta emails to do so. Trump, as Republicans have for decades, turned out to be perfectly capable of raising baseless concerns about election integrity (as he did again last night).

So here, when asked why, after dick-waving about an imminent Russian hack of the election, the White House wasn’t backing a review of the vote, this White House official who wouldn’t go on the record instead effectively said, “Who knows? ‘The Kremlin’ probably figured the damage was done.”

Which brings me to my complaint about the way the Russian hacking has been dealt with — largely fed by a deliberate Hillary effort to emphasize Trump’s Russian ties rather than all his shady dealings generally.

Who is responsible for doubts about the integrity of our election? The hack-and-leakers? Trump? Or the national security officials (who, in this case, won’t even go on the record) making uncertain claims that the Russians intend to undermine confidence in elections? At some point, those pounding the war drums are the ones who are undermining confidence, not the Russian hackers themselves.

And none of those actions take place in a vacuum. Even as both the Russians (allegedly) were undermining faith in our elections and national security types were hyping up concerns that people might lose faith in our elections which likely helped undermine faith in our elections, there were real reasons why Americans shouldn’t have faith in their elections. Consider this line: “As a result, we believe our elections were free and fair from a cybersecurity perspective.” This anonymous person at the White House is asserting there were no hacks of the election. But he or she is not asserting the election was free and fair.

Of course not. That’s because in a number of states — notably, in swing states NC and WI — the Republicans undertook known, documented efforts to ensure the elections weren’t free and fair by making it harder for likely Democratic voters to vote than Republican voters.

Voters — especially students and voters of color normally targeted in suppression efforts — shouldn’t be complacent about the integrity of our elections. Numerous circuit courts have found evidence showing they’re not free and fair. Our elections were not going to be free and fair well before Russian hackers targeted the DNC.

But rather than focusing on the things closer to home that we need to improve, we’re all worried the Russians are coming … to do what decades of Republican efforts have already done.

Saudis and Americans Disagree Over Whether US Is Involved in Targeting in Yemen

I noted earlier that Saudi Arabia had expressed concern about civilian casualties — when Russia caused them.

Which is why the conflict between these two statements is so interesting. Here’s Saudi Foreign Minister (and former Ambassador to the US) Adel al-Jubeir on Wednesday.

“We are very careful in picking targets. We have very precise weapons,” Adel al-Jubeir told CBS News’ Norah O’Donnell. “We work with our allies including the United States on these targets.

Al-Jubeir said collateral damage is “extremely regrettable” and should be avoided.

“But can we prevent it 100 percent? I don’t think you can. This is warfare,” he said. [my emphasis]

Here’s a statement from earlier today from NSC Spokesperson Ned Price.

We are deeply concerned about recent reports of civilians killed in Mokha, Yemen on September 28.  We were also shocked and saddened by the deaths of the Yemen Red Crescent Society volunteers in Taiz on the same day. We take all credible accounts of civilian deaths very seriously and again call on all sides of the conflict in Yemen to do their utmost to avoid harm to civilians and to comply with their obligations under international humanitarian law. The United States has no role in targeting decisions made by the Coalition in Yemen. Nevertheless, we have consistently reinforced to members of the Coalition the imperative of precise targeting. We also have underscored the importance of thoroughly investigating all credible allegations of civilian casualties. We call for an investigation into these reported civilian casualties and for the findings to be reported publicly.

More broadly, these incidents underscore the urgency of seeking a durable solution to the crisis in Yemen through a peaceful political dialogue as soon as possible. [my emphasis]

Whichever it is, it sure is hard to square either one of these comments with the joint statement earlier today expressions shock over Russian inflicted civilian casualties.

Update: I’m curious whether Jubeir’s statement precedes the withdrawal of the Dutch proposal for an outside review in Yemen. The CBS article is time stamped 3:10 PM, which seems late in the day to have influenced the UN action, but the video it includes is timestamped 11:40, which may well have been early enough.

Update: Meanwhile, the US just bombed a Medecins sans Frontieres trauma center in Kunduz, killing at least 9 MSF staffers.

In Which the National Security Council Discovers the Grand Jury Subpoena

Back when Jim Comey ate 20 journalists for lunch, he said that if Congress imposed more controls on National Security Letters, FBI would just get more grand jury subpoenas, which require fewer approvals than NSLs anyway.

Which is one reason I find National Security Council spokesperson Ned Price’s promise that if Section 215 lapses, “a critical national security tool” used in other contexts would be lost to be so interesting.

NSC spokesman Ned Price told Reuters the administration had decided to stop bulk collection of domestic call metadata unless Congress re-authorizes it.

Some legal experts have suggested that even if Congress does not extend the law the administration might be able to convince the Foreign Intelligence Surveillance Court to authorize collection under other authorities.

Price made clear the administration does not intend to do so. The administration is encouraging Congress to enact legislation in the coming weeks that would allow collection to continue.

“If Section 215 (of the law which covers the collection) sunsets, we will not continue the bulk telephony metadata program,” he said.

“Allowing Section 215 to sunset would result in the loss, going forward, of a critical national security tool that is used in a variety of additional contexts that do not involve the collection of bulk data.”

This reaffirms what Bob Litt said last month at Brookings, that the government claims it won’t continue the phone dragnet under Section 215 under a grandfather approach. But it also emphasizes the stuff journalists often ignore or don’t understand: that most Section 215 orders are for other things, and the government may or may not find those sufficiently important to panic over.

Still, at least some of what the government is doing with those other Section 215 orders could be done with grand jury subpoenas.

Or maybe it couldn’t. Maybe they’re collecting this stuff without the underlying predicate for an investigation, and therefore need to do it via Section 215?? Maybe the collection is so Constitutionally problematic that data collected using a subpoena — with the greater chance it would be reviewed by a judge in an adversarial proceeding — would get thrown out?

But if so, perhaps we should revisit the collection?

Or, just as provocatively, if this other collection is so important and cannot be done with a grand jury subpoena, then maybe the government should ditch the phone dragnet — it could do it instead in limited form with NSLs — so it can save the other programs it doesn’t want to talk about?

Would the government be willing to trade the phone dragnet — which has never IDed any plot — for the other programs Section 215 supports?