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The Press Gets Utterly Snookered on the White House Rebranding of the Same Old Unrelenting Obstruction of Congressional Prerogatives

Yesterday, the White House sent a letter to Nancy Pelosi and just some of the Committee Chairs conducting parts of an impeachment inquiry into the President, purporting to refuse to participate in that impeachment inquiry. Since then, there has been a lot of shocked coverage about how intemperate the letter is, with particular focus on the fact that White House Counsel, Pat Cipollone, used to be considered a serious lawyer. There has been some attempt to analyze the letter as if it is a legal document and not instead the President’s rants packaged up in Times Roman and signed by one of his employees. A number of outlets have thrown entire reporting teams to do insipid horse race coverage of the letter, as if this is one giant game, maybe with nifty commercials on during halftime.

None I’ve seen have described the letter as what it is: an attempt to rebrand the same old outright obstruction that the White House has pursued since January.

The tell — for those teams of well-compensated journalists treating this as a factual document — might have been the addressees. While the letter got sent to Adam Schiff, Eliot Engel, and Elijah Cummings, it did not get sent to Jerry Nadler, who has been pursuing an impeachment inquiry of sorts since the Mueller Report came out. The White House knows Nadler is also part of the impeachment inquiry, because even as the White House was finalizing the letter, Trump’s DOJ was in DC Chief Judge Beryl Howell’s courtroom fighting a House Judiciary request for materials for the impeachment inquiry. In the hearing, DOJ literally argued that the Supreme Court’s 8-0 US v. Nixon was wrongly decided.

Howell picked up on that point by pressing DOJ to say whether then-U.S. District Court Chief Judge John Sirica was wrong in 1974 to let Congress access a detailed “road map” of the Watergate grand jury materials as it considered President Richard Nixon’s impeachment.

Shapiro argued that if the same Watergate road map arose today, there’d be a “different result” because the law has changed since 1974. She said the judge wouldn’t be able to do the same thing absent changes to the grand jury rules and statutes.

Howell sounded skeptical. “Wow. OK,” she replied.

DOJ also argued that Congress would have to pass a law to enshrine the principle that this binding Supreme Court precedent already made the law of the land.

In the HJC branch of the impeachment inquiry, the few credible claims made in yesterday’s letter — such as that Congress is conducting the inquiry in secret without the ability to cross-examine witnesses or have Executive Branch lawyers present — are proven utterly false. And with the claims made in yesterday’s hearing, the Executive demonstrated that they will obstruct even measured requests and negotiations for testimony.

The Trump White House obstructed normal Congressional oversight by absolutely refusing to cooperate.

The Trump White House obstructed an impeachment inquiry focused on requests and voluntary participation.

The Trump White House obstructed an impeachment inquiry where subpoenas were filed.

The Trump White House obstructed an impeachment inquiry relying on whistleblowers who aren’t parties to the White House omertà.

The Trump White House obstructed what numerous judges have made clear are reasonable requests from a co-equal branch of government.

Nothing in the White House’s conduct changed yesterday. Not a single thing. And any journalist who treats this as a new development should trade in her notebooks or maybe move to covering football where such reporting is appropriate.

It is, however, a rebranding of the same old unrelenting obstruction, an effort to relaunch the same policy of unremitting obstruction under an even more intransigent and extreme marketing pitch.

And that — the need to rebrand the same old obstruction — might be worthy topic of news coverage. Why the White House feels the need to scream louder and pound the table more aggressively is a subject for reporting. But to cover it, you’d go to people like Mitt Romney and Susan Collins, who already seem to be preparing to explain votes against the President. You even go to people like Lindsey Graham, who is doing ridiculous things to sustain Rudy Giuliani’s hoaxes in the Senate Judiciary Committee — but who has condemned the principle of making the country dramatically less safe for whimsical personal benefit in Syria. Or you go to Richard Burr, who quietly released a report making it clear Russia took affirmative efforts to elect Trump in 2016.

This week, Trump looked at the first few Republicans getting weak in the knees and his response was to double down on the same old policies, while rolling out a campaign trying to persuade those weak-kneed members of Congress who are contemplating the import of our Constitution not to do so.

The President’s former lawyer testified earlier this year, under oath, that this has always been a branding opportunity to Donald Trump.

Donald Trump is a man who ran for office to make his brand great, not to make our country great. He had no desire or intention to lead this nation – only to market himself and to build his wealth and power. Mr. Trump would often say, this campaign was going to be the “greatest infomercial in political history.”

His latest attempt to cajole Republican loyalty is no different. It’s just a rebranding of the same intransigence. Treating it as anything but a rebranding is organized forgetting of what has taken place for the last nine months, and journalists should know better.

Kavanaugh Confirmation Standards of Nonsense

Okay, in case you have not already guessed, Marcy is away, mostly, for a couple of days. Even a prolific presence like her is entitled to that. So, you get me for today. Sorry!

Now, because I have been a little involved in trying to figure what is the “real standard of proof” for people in the shoes of, say, Susan Collins and Jeff Flake, I have been a tad predisposed this morning. But let us for now go back to Blasey Ford, Kavanaugh, Collins, Flake, Grassley and the “standard of proof”.

An executive branch nomination is NOT a criminal trial. Any talk about “presumed innocent” and “beyond a reasonable doubt” is asinine and duplicitous. There is no set standard for a nomination consideration, much less one for the Supreme Court. Senators, especially those on the screening Senate Judiciary Committee, get to make their own individual assessments. In a perverse kind of way, it is like impeachment’s “high crimes and misdemeanors”, it is easy for people to argue, but the net result is that it is whatever strikes Congress as being applicable.

Frankly, I think the argument over what Susan Collins’ standard was is kind of silly and diversionary. Collins stated on the record:

“This is not a criminal trial, and I do not believe that claims such as these need to be proved beyond a reasonable doubt. Nevertheless, fairness would dictate that the claims at least should meet a threshold of more likely than not as our standard.”

This is bullshit. As David Graham, again, pointed out:

Citing the lack of corroboration of Ford’s account as well as lacunas in Ford’s own recollection, Collins said she did not believe the “more likely than not” standard had been met.

Although she did not use the phrase, the standard that Collins offers appears to be the same as “the preponderance of the evidence,” which is the burden of proof required in civil trials—as opposed to the beyond-a-reasonable-doubt standard in criminal cases. This is also the standard that many colleges now use in evaluating sexual-violence claims under Title IX. Obama-era guidance required schools to use a preponderance-of-evidence standard, though the Trump Education Department has granted schools greater leeway, instructing that “findings of fact and conclusions should be reached by applying either a preponderance of the evidence standard or a clear and convincing evidence standard.”

So, what is the relevant standard? As propounded earlier, there is no set one in these circumstances. It certainly is not “beyond a reasonable doubt” as is in criminal trials. Anybody using that language, including most of the geriatric white geezers in the SJC, is lying.

“Clear and convincing evidence”? Nope, there is no precedent for that either. Preponderance of the evidence/more likely than not? Again, there is scant authority to establish that as a relevant standard. Bottom line is Susan Collins manufactured her own “standard” and then cynically applied it, all without any legitimate basis. And, maybe, that is the kind of intellectual malleability these SJC determinations engender, but, if so, people like Collins, and the journalists that cover her charade, should acknowledge it.

So, what is the real “standard”? Again, there is none I can find. But if the course and scope of “background investigations” conducted by the FBI at the behalf of an Article II Executive Branch request is any indication, it is far different than being duplicitously portrayed by both the White House and Senate Judiciary Republicans.

Here is a specialist in clearance and background investigation issues, Brad Moss:

Um, not totally true. It happens for high level national security operatives working for the NSC and related White House components. Those individuals have to hold TS/SCI access and often times can be subject to invasive polygraph screenings.

Actual vetting, not that Kushner BS.

Here is another, Kel McClanahan, of National Security Counselors:

The White House can’t order @FBI to just rummage through a random person’s life. They can definitely AUTHORIZE FBI to rummage through a person’s life who has agreed to be subjected to a background investigation.

If this is true, it was McGahn & not Trump who was playing games…

Yes. Exactly. And, as a Senator who was one of the maybe 115 American citizens able to actually read the “FBI Investigation” work product, for Susan Collins and Jeff Flake to blithely sign off on the limited, restricted and choked off nonsense, is beyond craven. It is straight up duplicitous. And the New York Times article is kind compared to the chicanery that was clearly afoot from Don McGahn, a close friend and Federalist Society gang member for decades with Brett Kavanaugh.

In short, it is NOT about the relative “standard of proof” used by Susan Collins. She used “more likely than not” standard (effectively a preponderance of evidence standard). When she said that was the standard, she was lying. It never has been, and never will be. That was manufactured bullshit.

People have also argued that the standard should have been “reasonable accusation” or “credible accusation”. And those are even lesser than than the preponderance/more likely than not” standard Collins artificially, self servingly and cynically utilized.

Is clearance on a Background Investigation warranted? Does anybody, including the high holy Brett Kavanaugh, have any god given right to have a clean BI and be elevated to the Supreme Court? Of course not (See Title 32 of the CFR), that is gibberish propounded by old white conservative and misogynistic demagogues, like Grassley, Hatch, Cornyn and Graham in the Senate Judiciary Committee. And it is pure rubbish.

And, so too is the manufactured “standard” Susan Collins magically announced in her drama queen dog and pony show yesterday that seemed to narcissistically go on forever.

The bottom line is that whether under Collins’ manufactured and elevated standard, or even lesser ones such as reasonable or credible allegations, Brett Kavanaugh was not fit for passage and subsequent confirmation.

As Mark J. Stern detailed in Slate, Susan Collins’ manifesto announced with all the drama of a royal wedding, was in incredible bad faith. Her “standard” was nonsense and nowhere close to any applicable standard. It was a joke.

But, even more so, under ANY standard Susan Collins could have cited, her “finding” thereunder was garbage. Even in criminal sex cases, not just occasionally, but often, finders of fact (usually juries), decisions come down to weighing the relative credibility of an accuser versus the accused. And, given the relentless series of outright lies Brett Kavanaugh stated under oath, there is no way that a sentient human could see his testimony as more credible than the measured, and admitting as to gaps, honesty of Dr. Christine Blasey Ford. And, again, credibility of witnesses is what criminal trials, much less less than even civil litigation burdens, as here, are decided by every day.

This is because there are usually zero other witnesses to such kidnapping, molestation and attempted rape cases as Dr. Christine Blasey Ford credibly alleged, but also because time and reticence of victims is often a factor. And, yet, cases are filed and determinations made on just such “he said/she said” allegations every day. The implication by Susan Collins, Chuck Grassley, the other wrinkled old entitled white men like Hatch in the SJC, not to mention their cynically hired criminal prosecutor, Rachel Mitchell, are complete baloney.

Somebody go ask Rachel Mitchell, and the sad old men that hired her before they fired her, how many times she has operated off of an accuser’s words. The answer will be a lie, because it happens all the time. And, yeah, that is enough to generate a full and meaningful “background investigation” despite the bullshit being proffered by the White House, Don McGahn and the SJC.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(iv) a cybersecurity threat from a foreign country;

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

Three Things: In the Debris Field After Health Care ‘Freedom’ Act

I still don’t have enough caffeine in my system and it’s nearly noon here. An entire pot of java may do the trick. As I rouse and read the hot takes after the failure of H.R. 1628 last night, a few thoughts stick with me.

~ 3 ~

All the think pieces — most written by white men lauding John McCain’s maverick move by departing from the party line — are evidence ‘the show’ worked.
McCain called it that when asked before the vote last night which way he was going. “Watch the show,” he said.

Meanwhile, the two women senators who have been firm all along they couldn’t vote for a bill causing damage to their constituents receive far fewer plaudits from the same mostly-white-male pundit class. Murkowski had been threatened by the Interior Secretary at Trump’s request. I haven’t heard for certain, but I’ll bet Collins received threats as well, probably from Trump-supporting constituents.

McCain won’t get those kinds of threats. He made his point last night about the power he wields within GOP Senate caucus as the final A/B switch on legislation. But the GOP Senate already knew this.

What McCain did was give the GOP a face-saving way to vote for a piece of shit they didn’t want to pass, without the repercussions Collins and Murkowski (and at varying times, Heller and Capito) have faced for rejecting a POS bill.

This is why they waited until the last goddamned minute to draft a meager eight-pages, slapping in some egregious stuff to ensure Collins and Murkowski couldn’t vote, adding the 20% annual premium increase as a coup de grace.

Because McCain would do the maverick kabuki for them, slap on his mask and robes, make big gestures and kill the bill for them.

And it worked not only because all the white male pundit class got suckered by their usual privileged blindness, but the white male Tweeter-in-Chief bought it, hook, line, sinker. He blamed all the Democrats and three GOP senators. All the other senators are off the hook.

Bonus: McCain’s legacy is salvaged with the patriarchal punditry.

Great ‘show’, maverick.

~ 2 ~

Scaramucci is nothing more than a highly-animated automaton on a stage; nothing he says is real. Why? Because the real communications are being run out of house by Steve Bannon, and likely in violation of federal law.

What is it and to whom is Bannon really communicating for the White House?
This operation may be in violation of the Antideficiency Act, but is it also in violation of the Presidential Records Act? What about any other regulations regarding FOIA?

Don’t believe me about Scaramucci’s role? Take a look at your news feed and point to any announcement about his firing or resignation. You know damned well had a communications director acted like he has under any other previous administration he’d have been walked out the White House’s fence.

p.s. Some say Scaramucci’s lowering discourse. Come the fuck on. He talks the way all of Wall Street’s white males do. The misogynist crack about Sarah Huckabee Sanders’ appearance? Par for the course.

~ 1 ~

Recommended lunch hour read for you: a book review by Andrew Bacevich in London Review of Books on The General v. the President: MacArthur and Truman at the Brink of Nuclear War by H.W. Brands. Bacevich’s background here.

Putting this book on my shopping list after this review, given how much power Trump has given and is likely to give to the military, breaking with civilian control.

~ 0 ~

That’s it for now. I’m stewing on something else but it’ll be dedicated and not an open thread like this one. Hasta pasta.

Democrats Should Propose Susan Collins Serve as Acting Chair for Russian Hack Investigation

As I’ve been saying, the Intelligence Committees are the sensible place for any investigation into the Russian hack, but the current investigation is hampered because both Chairs — Devin Nunes in the House and Richard Burr in the Senate — have conflicts that prevent them from being independent.

The WaPo has an absolutely masterful article exposing their conflicts.

Better still, it shows that Benghazi truther Mike Pompeo has already abused his position as CIA Director in the pursuit of politics.

The part that has gotten the most notice is WaPo’s report that — after Reince Priebus failed to get FBI to issue a rebuttal to this NYT article — which claims “Phone records and intercepted calls show that members of Donald J. Trump’s 2016 presidential campaign and other Trump associates had repeated contacts with senior Russian intelligence officials in the year before the election” — he then arranged calls with the press and Nunes and Burr, so they could rebut the claims. As the WaPo reports, the calls were not persuasive enough to get WaPo to report on them.

The officials broadly dismissed Trump associates’ contacts with Russia as infrequent and inconsequential. But the officials would not answer substantive questions about the issue, and their comments were not published by The Post and do not appear to have been reported elsewhere.

Nunes’ comments actually were picked up by WSJ (which has discouraged reporters from doing hard reporting on this issue). Burr’s were not. Here’s how Burr — who normally leaks far less than other Gang of Four members, and who was a national security advisor for Trump during the campaign — defended his comments.

Burr acknowledged that he “had conversations about” Russia-related news reports with the White House and engaged with news organizations to dispute articles by the New York Times and CNN that alleged “repeated” or “constant” contact between Trump campaign members and Russian intelligence operatives.

“I’ve had those conversations,” Burr said, adding that he regarded the contacts as appropriate provided that “I felt I had something to share that didn’t breach my responsibilities to the committee in an ongoing investigation.”

More delectably, the WaPo obliquely reveals that an intelligence official was involved in the calls, and then makes it very clear that Pompeo was the guy. As WaPo points out, this not only makes Pompeo a raging hypocrite, given the way he politicized Benghazi, but it also suggests Pompeo inquired into the FBI’s counterintelligence investigation for the purpose of leaking details of it to the press.

CIA Director Mike Pompeo is the senior-most intelligence official in the administration, with former senator Dan Coats (R-Ind.) still awaiting confirmation as director of national intelligence.

As a Republican member of Congress, Pompeo was among the most fiercely partisan figures in the House investigation of Benghazi, which centered on accusations that the Obama administration had twisted intelligence about the attacks for political purposes.

It is not unusual for CIA leaders to have contact with news organizations, particularly about global issues such as terrorism or to contest news accounts of CIA operations. But involving the agency on alleged Trump campaign ties to Russia could be problematic.

The CIA is not in charge of the investigation. Given the history of domestic espionage abuses in the United States, CIA officials are typically averse to being drawn into matters that involve U.S. citizens or might make the agency vulnerable to charges that it is politicizing intelligence.

This is actually fairly breathtaking. It’s one thing to inquire into a past event, because the inquiry can’t change it. But this is an ongoing counterintelligence investigation! Russians are dying left and right, and at least one of them looks like he was a likely source for the Trump dossier. Two Russians have already been charged with treason and a Ukranian may well be as well. There are reasons you keep counterintelligence investigations secret.

But the CIA Director is more interested in helping Trump out politically.

It turns out that Senate Intelligence Vice Chair Mark Warner, who thus far has defended Burr’s role in this investigation, is not all that happy about this. Here’s what he had to say in response to WaPo’s disclosures.

Mark Warner, the ranking Democrat on the Senate Intelligence Committee, said he called CIA Director Mike Pompeo and Burr to express his “grave concerns about what this means for the independence” of the investigation.

“I am consulting with members of the Intelligence Committee to determine an appropriate course of action so we can ensure that the American people get the thorough, impartial investigation that they deserve, free from White House interference,” Warner said in a statement Friday night.

So here’s my suggestion: tell Mitch McConnell and Richard Burr that Susan Collins should serve as acting Chair for this investigation, and if they don’t agree the Democrats will demand an independent inquiry.

Collins is a perfect choice even beyond her comments from the other day, which among other things entertained the possibility of subpoenaing Trump’s tax returns. She has voted against Trump more than any other Senator (which is not much, but still). As Chair of Homeland Security, she conducted a number of credible investigations, working closely with Joe Lieberman.

So she surely could credibly lead this report.

To be clear: I’m suggesting this as a negotiating strategy. This hasn’t been done before and I suspect it wouldn’t be done here. But it is clear that Collins is independent and qualified to lead this investigation. The alternatives all involve more potential exposure for Trump.

Democrats should propose this — so McConnell and Burr can shoot it down, making it clear that Republicans want people who’ve already compromised their independence to lead this investigation.

Update: Here’s Collins’ comment on the new disclosures.

The Senate Intelligence Committee has the expertise, the cleared staff, and the bipartisan determination to follow the evidence wherever it leads in this investigation into malicious Russian activities. For the public to have confidence in our findings, it is important that the Committee work in a completely bipartisan fashion and that we avoid any actions that might be perceived as compromising the integrity of our work. It is also important that the Committee ultimately issue a public report on our findings.

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.

 

The Play on the Scalia Replacement: Remember the Lame Duck

Within minutes after the public announcement of Antonin Scalia’s death, Senator Mike Lee’s flack Conn Carroll started predicting Obama would have zero chance of successfully naming a successor. After Carroll, one after another actual Senator followed that sentiment, including Chuck Grassley and Mitch McConnell, both of whom would have the ability to stall any Obama nominee. From that point, the GOP was pretty much committed, they said, to preventing any Obama nominee from being confirmed.

That led to a bunch of bad comparisons — between judges like Robert Bork who was rejected and Miguel Estrada who never got a vote — and simply going a year without acting on a President’s nominee. Even the comparison with Anthony Kennedy (who was nominated in November after two other nominees, including Bork, failed) is inapt, as he was nominated earlier than any Obama pick would be (though in a sense that fetishizes the year that would pass without a nominee).

I, like bmaz, believe Obama will pick someone fairly centrist, probably someone who has been recently confirmed by big margins.  I agree the most likely nominee will be Sri Srinivasan, who in 2013 was confirmed to the DC Circuit with a 97-0 vote — though I’m also mindful of the wisdom (given the GOP unanimity about obstructing this nominee) of picking someone who drive Democratic turnout — an African-American woman, for example. Though I highly doubt Obama will nominate Loretta Lynch, as some have suggested, not least because the fight over releasing data on HSBC’s continued money laundering will draw more attention as it moves toward appeal, which might focus attention on her role in administering the wrist slap in the face of egregious drug cartel and terrorist supporting money laundering.

After some reflection, some conservatives have suggested that the GOP would have been better served if they had simply not managed to pass Obama’s nominee, rather than making such a big stink about it.

I think that ignores how much both parties look forward to using this nominee to drive turnout — and regardless of who the respective nominees are, the GOP have a much bigger challenge in getting enough voters to turn out to elect a GOP president in November, so I’m sure they’re quite happy to have an issue that (they presumably hope) might flip some conservative Latino votes — though one likely outcome of an extended 8-member court is that the Fifth Circuit’s ruling staying Obama’s immigration orders will be upheld after a 4-4 tie on the court, which might have the opposite effect.

Furthermore, I think it ignores one other factor. Srinivasan has been predicted to be Obama’s most likely SCOTUS appointment for almost 3 years (few people consider how such predictions might have influenced Ruth Bader Ginsburg’s decision not to retire). The Republicans probably presume he’s the most likely candidate as well.

The presumption Srinivasan — or someone similar — would be the nominee easily justifies the GOP’s immediate promise they won’t confirm a nominee. That’s because they need to explain why someone they just overwhelmingly confirmed, someone who faced more opposition from the left than the right, suddenly became unacceptable.

More importantly, I presume the GOP wants to keep open the possibility of confirming Srinivasan or whatever centrist Obama appoints during the Lame Duck. Here’s why:

Barring any replay of Bush v. Gore, both sides will know on November 9 who would get to pick Scalia’s replacement if Obama’s pick failed. Both sides will also know the makeup of the Senate. Because of the demographic issues I mentioned earlier, the likely Democratic nominee, Hillary Clinton, is most likely to win. That’s not to say I think she’s necessarily the strongest candidate — even ignoring the potential the email scandal will taint close advisors like Huma Abedin or Jake Sullivan, I think it likely the economy will be crashing by November in a way that would favor Trump if he were the GOP nominee facing Hillary. But I think electoral demographics suggest the GOP will have a harder time winning this year, particularly after a year of Trump branding the GOP with bigotry.

Plus (ignoring my suspicion the economy will be crashing by November), we’re likely to have a more Democratic Senate after November. Harry Reid is the only retiring Democrat where the replacement race is currently perceived to be toss-up, whereas Marco Rubio, Mark Kirk, Kelly Ayotte, and Ron Johnson are all deemed to be likely toss-ups, if not Dem-favorable. It’s still most likely the GOP will have a slight majority, but a smaller one, in the Senate, one where people like Susan Collins could make more of a difference. But it is likely to be more Democratic.

If Hillary wins (the most likely outcome) and Democrats win the Senate (unlikely, but feasible), then the Republicans will have good reason to want to confirm an Obama nominee perceived to be centrist. Whereas Srinivasan looks far worse than Scalia to the Republicans, he would all of a sudden look far preferable to a Hillary choice with the time to wait out the Senate. The GOP would have time between November 9 and the Christmas break to confirm whatever Obama nominee has been languishing.

In other words, I think the GOP have provided a way to stall someone (like Srinivasan) they have recently confirmed, while leaving the possibility of confirming that person if November makes it likely the next nominee will be more liberal.

One more thing: Commentary on this process has presumed that McConnell and Grassley (and Obama) learned of Scalia’s death when we all did. I would hope that Obama, at least, got word well before that, particularly given the involvement of at least the US Marshals and according to some reports the FBI. But I also wouldn’t leave out the possibility that one of the 39 other still unidentified guests at the ranch this weekend gave the Republican leadership a heads up as soon as a hearse showed up. So it’s possible that what looked like quick knee-jerk response on the part of Republican leadership was instead more considered, along the lines I’ve just laid out.

The Financial Services Roundtable Wants to Terrify You into Giving Them More Immunity

The policy discussion about the many ways that the Cyber Information Sharing Act not only doesn’t do much to prevent the hacking of public and private networks, but in key ways will make it worse, must be making its mark. Because the Financial Services Roundtable, one of the key corporatist groups backing the bill, released this YouTube full of scary warnings but absolutely zero explanation about what CISA might do to increase cybersecurity.

Indeed, the YouTube is so context free, it doesn’t note that Susan Collins, the first person who appears in the video, has called for mandatory reporting from some sectors (notably, aviation), which is not covered in the bill and might be thwarted by the bill. Nor does it mention that the agency of the second person that appears in the video, Department of Homeland Security Secretary Jeh Johnson, has raised concerns about the complexity of the scheme set up in CISA, not to mention privacy concerns. It doesn’t note that the third person shown, House Homeland Security Chair Michael McCaul, favored an approach that more narrowly targeted the information being shared and reinforced the existing DHS structure with his committee’s bill.

Instead of that discussion … “Death, destruction, and devastation!” “Another organization being hacked!” “Costing jobs!” “One half of America affected!” “What is it going to take to do something?!?!?!”

All that fearmongering and only one mention of the phrase “information sharing,” much less a discussion of what the bill in question really does.

In August, the head of the FSR, Tim Pawlenty, was more honest about what this bill does and why his banks like it so much: because it would help to hide corporate negligence.

“If I think you’ve attacked me and I turn that information over to the government, is that going to be subject to the Freedom of Information Act?” he said, highlighting a major issue for senators concerned about privacy.

“If so, are the trial lawyers going to get it and sue my company for negligent maintenance of data or cyber defenses?” Pawlenty continued. “Are my regulators going to get it and come back and throw me in jail, or fine me or sanction me? Is the public going to have access to it? Are my competitors going to have access to it? Are they going to be able to see my proprietary cyber systems in a way that will give up competitive advantage?”

That is, the banks want to share information with the government so it can help those private corporations protect themselves (without paying for it, really, since banks do so well at dodging taxes), without any responsibility or consequences in return. “Are my regulators going to get [information about how banks got attacked] and come back and throw me in jail, or fine me, or sanction me?” the banks’ paid lobbyist worries. As the author of this bill confirmed last week, this bill will undercut regulators’ authority in case of corporate neglect.

The example of banks dodging responsibility in the past — possibly aided by a similar (albeit more rigorous) information sharing regime under the Bank Secrecy Act — provides all the evidence for how stupid this bill would be. We need corporations to start bearing liability for outright negligence. And this bill provides several ways for them to avoid such liability.

Don’t succumb to bankster inciting fear. America will be less safe if you do.

Several Supporters of CISA Admit Its Inadequacy

In recent days, there have been reports that the same (presumed Chinese) hackers who stole vast amounts of data from the Office of Personnel Management have also hacked at least United Airlines and American. (Presuming the Chinese attribution is correct — and I believe it — I would be surprised if Chinese hackers hadn’t also tried to hack Delta, given that it has a huge footprint in Asia, including China; if that’s right and Delta managed to withstand the attack, we should find out how and why.)

Those hacks — and the presumption that the Chinese are stealing the data to flesh out their already detailed map of the activities of US intelligence personnel — have led a bunch of Cyber Information Sharing Act supporters (Susan Collins and Barb Mikulski have already voted for it, and Bill Nelson almost surely will, because he loves surveillance) to admit its inadequacy.

In recent months, hackers have infiltrated the U.S. air traffic control system, forced airlines to ground planes and potentially stolen detailed travel records on millions of people.

Yet the industry lacks strict requirements to report these cyber incidents, or even adhere to specific cybersecurity standards.

“There should be a requirement for immediate reporting to the federal government,” Sen. Susan Collins (R-Maine), who chairs the Appropriations subcommittee that oversees the Federal Aviation Administration (FAA), told The Hill.

“We need to address that,” agreed Sen. Bill Nelson (D-Fla.), the top Democrat on the Senate Commerce Committee.

[snip]

“We need a two-way exchange of information so that when a threat is identified by the private sector, it’s shared with the government, and vice versa,” Collins added. “That’s the only way that we have any hope of stopping further breaches.”

[snip]

That’s why, Nelson said, the airline industry needs mandatory, immediate reporting requirements.

“All the more reason for a cybersecurity bill,” he said.

But for years, Congress has been unsuccessful in its efforts.

Sen. Barbara Mikulski (D-Md.), the Senate Appropriations Committee’s top Democrat, tried three years ago to move a cyber bill that would have included rigid breach reporting requirements for critical infrastructure sectors, including aviation.

“We were blocked,” she told The Hill recently. “So it’s time for not looking at an individual bill, but one that’s overall for critical infrastructure.”

So now we have some Senators calling for heightened cybersecurity standards for cars, and different, hawkish Senators calling for heightened cybersecurity sharing (though they don’t mention security standards) for airlines. Bank regulators are already demanding higher standards from them.

And someday soon someone will start talking about mandating response time for operating system fixes, given the problems with Android updates.

Maybe the recognition that one after another industry requires not immunity, but an approach to cybersecurity that actually requires some minimal actions from the companies in question, ought to lead Congress to halt before passing CISA and giving corporations immunity and think more seriously about what a serious approach to our cyber problems might look like.

That said, note that the hawks in this story are still adopting what is probably an approach of limited use here. Indeed, the story is notable in that it cites a cyber contractor, JAS Global Advisors Jeff Schmidt, actually raising questions whether mandated info-sharing (with the government, not the public) would be all that effective.

If OPM has finally demonstrated the real impact of cyberattacks, then maybe it’s time to have a real discussion of what might help to keep this country safe — because simply immunizing corporations is not going to do it.

Three Congressional Responses to the OPM Hack

After acknowledging that as more than 20 million people have been affected by the hack of the Office of Personnel Management, OPM head Katherine Archuleta “resigned” today.

In announcing that Office of Budget and Management Deputy Director of Management Beth Cobert would serve as acting Director, Josh Earnest played up her experience at McKinsey Consulting. So we may see the same kind of management claptrap as OPM PR in the coming days that we got from CIA’s reorganization when McKinsey took that project on. Over 20 minutes into his press conference, Earnest also revealed there was 90 day review of the security implications of the hack being led by OMB.

Happily, in spite of the easy way Archuleta’s firing has served as a proxy for real solutions to the government’s insecurity, at least some in Congress are pushing other “solutions.” Given Congress’ responsibility for failing to fund better IT purchasing, consider agency weaknesses during confirmation, and demand accountability from the intelligence community going back at least to the WikiLeaks leaks, these are worth examining.

Perhaps most predictably, Susan Collins called for passage of cybersecurity legislation.

It is time for Congress to pass a cybersecurity law that will strengthen our defenses and improve critical communication and cooperation between the private sector and government. We must do more to combat these dangerous threats in both government and the private sector.

Of course, nothing in CISA (or any other cybersecurity legislation being debated by Congress) would have done a damn thing to prevent the OPM hack. In other words, Collins’ response is just an example of Congress doing the wrong thing in response to a real need.

Giving corporations immunity is not the answer to most problems facing this country. And those who embrace it as a real solution should be held accountable for the next government hack.

Freshman Nebraska Senator Ben Sasse — both before and after Archuleta’s resignation — has appropriately laid out the implications of this hack (rebutting a comparison repeated by Earnest in his press conference, that this hack compares at all with the Target hack).

OPM’s announcement today gives the impression that these breaches are just like some of the losses by Target or Home Depot that we’ve seen in the news. The analogy is nonsense. This is quite different—this is much scarier than identity theft or ruined credit scores. Government and industry need to understand this and be ready. That’s not going to happen as long as Washington keeps treating this like just another routine PR crisis.

But one of his proposed responses is to turn this example of intelligence collection targeting legitimate targets into an act of war.

Some in the defense and intelligence communities think the attacks on OPM constitute an act of war. The rules of engagement in cyber warfare are still being written. And with them, we need to send a clear message: these types of intrusions will not be tolerated. We must ensure our attackers suffer the full consequences of their actions.

Starting now, government needs to stop the bleeding—every sensitive database in every government agency must be immediately secured or pulled offline. But playing defense is a losing game. Naming and shaming until the news cycle shifts is not enough.

Our government must completely reevaluate its cyber doctrine. We have to deter attacks from ever happening in the first place while also building resiliency.

We’re collecting the same kind of information as China — in methods that are both more efficient (because we have the luxury of being able to take off the Internet) but less so (because we are not, as far as we know, targeting China’s own records of its spooks). If this is an act of war than we gave reason for war well before China got into OPM’s servers.

Meanwhile, veterans Ted Lieu and Steve Russell (who, because they’ve had clearance, probably have been affected) are pushing reforms that will affect the kind of bureaucracy we should have to perform what is a core counterintelligence function.

Congressman Russell’s statement:

“It is bad enough that the dereliction displayed by OPM led to 25 million Americans’ records being compromised, but to continue to deflect responsibility and accountability is sad. In her testimony a few weeks ago, OPM Director Katherine Archuleta said that they did not encrypt their files for fear they could be decrypted. This is no excuse for a cyber-breach, and is akin to gross negligence. We have spent over a half a trillion dollars in information technology, and are effectively throwing it all away when we do not protect our assets. OPM has proven they are not up to the task of safeguarding our information, a responsibility that allows for no error. I look forward to working with Congressman Lieu on accountability and reform of this grave problem.”

Congressman Lieu’s statement:

“The failure by the Office of Personnel Management to prevent hackers from stealing security clearance forms containing the most private information of 25 million Americans significantly imperils our national security. Tragically, this cyber breach was likely preventable. The Inspector General identified multiple vulnerabilities in OPM’s security clearance system–year after year–that OPM failed to address. Even now, OPM still does not prioritize cybersecurity. The IG testified just yesterday that OPM ‘has not historically, and still does not, prioritize IT security.’ The IG further testified that there is a ‘high risk’ of failure on a going forward basis at OPM. The security clearance system was previously housed at the Department of Defense. In hindsight, it was a mistake to move the security clearance system to OPM in 2004. We need to correct that mistake. Congressman Steve Russell and I are working on bipartisan legislation to move the security clearance database out of OPM into another agency that has a better grasp of cyber threats. Steve and I have previously submitted SF-86 security clearance forms. We personally understand the national security crisis this cyber breach has caused. Every American affected by the OPM security clearance breach deserves and demands a new way forward in protecting their most private information and advancing the vital security interests of the United States.”

A number of people online have suggested that seeing Archuleta get ousted (whether she was forced or recognized she had lost Obama’s support) will lead other agency heads to take cybersecurity more seriously. I’m skeptical. In part, because some of the other key agencies — starting with DHS — have far to much work to do before the inevitable will happen and they’ll be hacked. But in part because the other agencies involved have long had impunity in the face of gross cyberintelligence inadequacies. No one at DOD or State got held responsible for Chelsea Manning’s leaks (even though they came 2 years after DOD had prohibited removable media on DOD computers), nor did anyone at DOD get held responsible for Edward Snowden’s leaks (which happened 5 years after the ban on removable media). Neither the President nor Congress has done anything but extend deadlines for these agencies to address CI vulnerabilities.

Perhaps this 90 day review of the NatSec implications of the hack is doing real work (though I worry it’ll produce McKinsey slop).  But this hack should be treated with the kind of seriousness as the 9/11 attack, with the consequent attention on real cybersecurity fixes, not the “do something” effort to give corporations immunity.