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Byron York Confirms that Many Names and Sources Implicated Carter Page as an Agent of a Foreign Power

Adam Schiff’s complaints that Republicans won’t release his FISA memo in tandem with the Devin Nunes being reviewed for release at the White House must be doing damage: a bunch of Republicans, including Tom Rooney, ran to Byron York to try to spin the release process as a fair application of process.

But there was also a rare moment of bipartisanship for the bitterly divided panel. At the same meeting, Republicans and Democrats voted unanimously to make the Democratic memo — the counter-memo to the Republican document — available to all members of the House.

That is the same process Republicans, under chairman Devin Nunes, R-Calif., followed with their memo. First, make it available to House members. (That happened on Jan. 18.) Later, after members of both parties have had a chance to read the memo, decide whether to release it to the public.

But along the way, an anonymous source who might be Rooney had this to say:

“It was written by attorneys as a rebuttal to our memo, but it’s not going to move their argument forward,” noted one Republican member who has read the Democratic paper. “It’s too detailed, too confusing, and far more personal — they go after [Nunes] again and again.

The member noted that that Democratic memo contains far more classified information — names and sources — than the GOP paper. “It is much more revealing [of classified information],” he said. “It’s going to have to be heavily redacted before it can be released. We wrote our memo with the hope that it would be released to the American people. Their memo will have to be heavily redacted.”

The anonymous source who might be Rooney admits that the Schiff memo contains far more references to names and sources than the Nunes memo.

What the anonymous source who might be Rooney admits is that there are far more names and sources that implicated Carter Page as an agent of a foreign power than what Nunes’ memo — which reportedly focuses primarily on how the Steele dossier served as one source for at least three FISA applications against Carter Page — admits.

Thanks for clearing that up, Congressman Rooney.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

[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.

[snip]

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.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

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.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.