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What Did Mueller Achieve with the Internet Research Agency Indictment?

Back during Nunes Week, Trey Gowdy described the importance of Robert Mueller’s investigation by stating that we were only seeing half of what he was doing. The other half of his work, Gowdy said, was the counterintelligence side, the investigation into what Russia did to the US in 2016.

Friday, Rod Rosenstein rolled out the first glimpse of the other half of that investigation, an indictment of 13 Russians tied to the Internet Research Agency, the Russian troll factory. The indictment accuses IRA of 8 crimes: criminal conspiracy to defraud the United States, conspiracy to commit wire fraud and bank fraud, and five counts of aggravated identity theft.

In the wake of that indictment, the court unsealed a February 7  plea agreement with Californian Richard Pinedo, for identity theft (basically, selling bank account numbers; the information doesn’t identify the users who purchased the bank account numbers as IRA personnel who used them to set up “American” identities, but that is clearly what happened).

The 13 Russians charged in the IRA indictment — which include Yevgeniy Prigozhin, the close Putin associate who owns the company, those in charge of the operation (which was not limited to US targeting), down to a few of the analysts who did the troll work — will never be extradited to the US, though the most senior among them will surely be sanctioned. Nor will Putin in any way retaliate against them — they were doing work he approved of! Further, by criminalizing “information warfare” (as the Russians admitted they were engaged in, and as we do too, under the same name) we risk our own information warriors being indicted in other countries.

So what purpose did the indictment serve? Here are some thoughts:

Creating a paper trail

Rosenstein and Chris Wray have both said they believe investigators should speak through indictments and other official documents, not through Comeyesque press conferences. Here we have an indictment that serves as a record of what Mueller’s team has found.

We would probably have gotten it in any case, as Jeff Sessions’ DOJ has emphasized bringing more cybersecurity related indictments.

But that we did get it addresses one of the questions we’ve gotten about the Mueller investigation: whether we’ll get to read a report of what he has found.

To the extent that something is indictable, even if that indictment would name Russians or others located overseas, I guess we should expect more of the same.

Establishing bipartisan credibility for the larger investigation

The reason I keep pointing to Gowdy’s statements in support of the investigation in the last several weeks is because his actions seem to reflect one of the most partisan Republicans reacting soberly to an attack on the country, rather than just one party.

And while the details of the indictment — most notably that the trolls affirmatively supported Bernie Sanders as well as Trump — have resurfaced the old primary recriminations, for the most part, the indictment has provided a way for people from both parties to agree to the reality of the attack. Trump said Mueller did a good job with the indictment (admittedly, he may be currying favor). Trump’s National Security Advisor HR McMaster responded to the indictment by declaring the evidence that Russia interfered in the election “incontrovertible.” This indictment offers a way for even self-interested Republicans to start acknowledging the reality of what happened.

The indictment also gave Rod Rosenstein an opportunity to own this investigation with a press conference announcing it. None of the prosecutors tied to the case appeared (since I track these things, know that Jeannie Rhee, Rush Atkinson, and Ryan Dickey are on the docket), just Rosenstein. Hopefully, tying him to this non-offensive indictment will make it harder to fire Rosenstein, and thereby further protect Mueller.

Reiterating the crime of conspiracy to defraud the United States

The most interesting of the three crimes charged in the IRA indictment is the first, the conspiracy to defraud the United States. The indictment describes the conspiracy this way:

U.S. law bans foreign nationals from making certain expenditures or financial disbursements for the purpose of influencing federal elections. U.S. law also bars agents of any foreign entity from engaging in political activities within the United States without first registering with the Attorney General. And U.S. law requires certain foreign nationals seeking entry to the United States to obtain a visa by providing truthful and accurate information to the government.

Effectively, Mueller is saying that it’s not illegal, per se, to engage in political trolling (AKA information warfare), but it is if you don’t but are legally obliged to register before you do so. That’s an important distinction, because much of what these trolls did is accepted behavior in American politics — all sides did this in 2016, including people employed by campaigns and others expressing their own political opinions. Trolling (AKA information warfare) only becomes illegal when you don’t carry out the required transparency or reporting before you do so.

The charge of a conspiracy to defraud the United States has a very important parallel elsewhere in this investigation, in the first charge in the Paul Manafort and Rick Gates indictment. The indictment explains,

It is illegal to act as an agent of a foreign principal engaged in certain United States influence activities without registering the affiliation. Specifically, a person who engages in lobbying or public relations work in the United States (hereafter collectively referred to as lobbying) for a foreign principal such as the Government of Ukraine or the Party of Regions is required to provide a detailed written registration statement to the United States Department of Justice. The filing, made under oath, must disclose the name of the foreign principal, the financial payments to the lobbyist, and the measures undertaken for the foreign principal, among other information. A person required to make such a filing must further make in all lobbying material a “conspicuous statement” that the materials are distributed on behalf of the foreign principal, among other things. The filing thus permits public awareness and evaluation of the activities of a lobbyist who acts as an agent of a foreign power or foreign political party in the United States.

The Manafort indictment then argues that by hiding that the lobbying work they were doing was on behalf of Ukraine’s Party of Regions they, “knowingly and intentionally conspired to defraud the United States by impeding impairing, obstructing, and defeating the lawful governmental functions of a government agency, namely the Department of Justice and the Department of the Treasury.” I’ll have more to say about this parallel in coming days, but suffice it to say that Mueller is alleging that Manafort is the mirror image of the troll farm, engaging in politics while hiding on whose behalf he’s doing it (he was arguably doing the same in Ukraine). [Update: see this post for more on how this might work.]

In both cases, the indictments substantiate the conspiracy by naming a variety of crimes, like money laundering and identity theft.

I suspect we’ll be seeing more of this structure going forward (and suspect it’s something the numerous appellate specialists on Mueller’s team have been spending a lot of time thinking about).

Laying out how Americans might be involved with or without “colluding”

Much has been made of Rosenstein’s line, “There is no allegation in the indictment that any American was a knowing participant in the alleged unlawful activity.” I don’t read too much into that. Rather, I think Rosenstein included it because the indictment does explicitly and implicitly describe actions many Americans and possible Americans took that were part of this conspiracy. That includes:

Illegal compensated acvitities

  • Richard Pinedo: Selling Russian trolls (and others) bank account numbers they can use to conduct identity fraud
  • Unknown persons: Providing social security numbers and fake US drivers licenses of Americans
  • Unknown persons: Selling stolen credit card information

Presumptively legal compensated activities

  • Unknown Americans: Renting servers in the US to run VPNs to hide their foreign location
  • Yahoo, Gmail, Paypal: Providing email and PayPal accounts the Russians used as the basis for social media accounts
  • Twitter, Instagram, Facebook: Providing those social media accounts
  • Twitter, Instagram, Facebook: Selling advertisements on social media
  • Unknown Trump associates: Paying for IRA rally expenses
  • Paid providers: Building a cage, acquiring a costume, and posing as Hillary in prison stunt at a FL event
  • Unknown US person: Providing posters for a Support Hillary, Save American Muslims rally
  • Unknown American: Holding a sign in front of the White House on May 29, 2016

Uncompensated activities

  • Unknown Americans: Interacting with Aleksandra Krylova and Anna Bogacheva when they traveled to the US sometime between June 4 and June 26, 2014 to conduct reconnaissance and another co-conspirator that November
  • Members of the media: Accepting tips and promoting IRA events
  • A member of a real TX-based Tea Party organization: Advising the conspirators to focus on the purple states “like Colorado, Virginia & Florida”
  • Unwitting members, volunteers, and supporters of the Trump Campaign involved in local community outreach, as well as grassroots groups that supported then-candidate Trump: Distributing IRA materials through existing channels of those groups
  • Administrators of large social media groups focused on U.S. politics: Promoting IRA events
  • Trump volunteer: Providing signs for the March for Trump event and otherwise recruiting for it
  • A Florida-based political activist identified as the “Chair for the Trump Campaign” in a particular Florida county: Advising on more locations and logistics for the Florida Trump event
  • Campaign Officials 1, 2, and 3: discussing the Florida events

Later the indictment describes a database of 100 real US persons whom the trolls treated as recruiting targets, complete with profiling.

On or about August 24, 2016, Defendants and their co-conspirators updated an internal ORGANIZATION list of over 100 real U.S. persons contacted through ORGANIZATION-controlled false U.S. persona accounts and tracked to monitor recruitment efforts and requests. The list included contact information for the U.S. persons, a summary of their political views, and activities they had been asked to perform by Defendants and their co-conspirators.

Here’s the important thing about all this. While Pinedo pled guilty and faces 12-18 months even with his cooperation agreement (and even there, while the information makes it clear he knew he was dealing with foreigners, his lawyer has made it clear he didn’t know who or what he was dealing with), there are only two other known illegal roles in this conspiracy, and there’s no reason those roles would have had to be carried out by Americans. Perhaps Mueller has others cooperating, perhaps those other criminals are unknown. But as for the rest, they are (as Rosenstein made clear) not guilty of any kind of conspiracy with Russia.

DOJ just rolled out an indictment in which probably 20 Americans can recognize themselves (many of whom were likely interviewed), about as many as all the Trump officials named in one or another plea agreement so far. Yet, as far as Mueller knows, none of these people did anything but conduct business or engage in sincerely held politics. They almost certainly had far less reason to be suspicious of the trolls they were being used by than Facebook and Twitter. Those actions have been tainted now through no fault of their own.

Which is something to remember: I’ve seen Hillary supporters, in the same breath, criticize Bernie or Jill Stein supporters because their preferred candidate was treated favorably by the trolls, yet in the same breath suggesting the black and Muslim activists targeted are innocent victims.

Obviously, Hillary and her supporters are victims. But everyone is, even the Trump volunteers. Because to the extent they had honestly held beliefs, the Russian operation tainted those beliefs, it diminished the weight of their honestly held beliefs. They were used by Russian trolls, most of them without the same profit motive that led Facebook and Twitter to allow themselves to be used. And we should remember that.

Hinting at what the US has

There are, however, a few tactical things this indictment does, starting with hinting at what other evidence the US has. This indictment was relatively easy, in that Adrian Chen (in a June 2015 article that still gets too little attention), Facebook and (to a lesser extent) other social media outlets, the Daily Beast, and SSCI generally have already laid out what IRA did. The indictment slaps some criminal charges on fraudulent behavior that enabled it, and without showing much about any additional evidence Mueller collected, you’ve got a showy indictment.

There are two hints, however, of the additional evidence used (which, given that the named conspirators will never face trial, will never need to be disclosed or explained). First, in a passage about how IRA started to cover their tracks after Mueller started focusing on this activity, there’s the reference to Irina Kaverzina.

On or about September 13, 2017, KAVERZINA wrote in an email to a family member: “We had a slight crisis here at work: the FBI busted our activity (not a joke). So, I got preoccupied with covering tracks together with the colleagues.”

Kaverzina was just a low-level troll and this may be nothing more than Section 702 collected email off GMail or Yahoo, or it may be a more formal intercept. But Mueller obtained communications from at least one of the indictees. Emails from more senior people, such as Prigozhin or his more senior managers (or the IT guys buying server space in the US) would be more interesting.

Plus, Mueller likely obtained cooperation from one IRA employee, the unnamed person who traveled to Atlanta in November 2014 for reconnaissance. Had that person not cooperated, he or she would have been named in the indictment.

Nevertheless establishing the political stakes

I said above that none of the hundred-plus Americans who were unknowingly used by trolls should be considered anything but victims. Their chosen political views, loathsome or not, have now been tainted, and not because of anything they’ve done except perhaps show too much trust or credulity.

But there are hints that Mueller is using this indictment to set up a more important point.

For example, the indictment (perhaps because of Mueller’s mandate) focuses on political activities supporting or opposing one or another 2016 candidate. Even where topics (immigration, Muslim religion, race) are not necessarily tied to the election, they’re presented here as such. Unless Facebook’s public reports are wrong, this is a very different emphasis than what Facebook has said the IRA focused on. Which is to say that Mueller’s team are focusing on a subset of the known IRA trolling, the subset that involves the 2016 contest between Trump and Hillary.

And there are several events, in particular, that may one day serve as details in a larger conspiracy. Most interesting, for the timing and location, are the twin anti-Hillary and pro-Trump events in NYC in June and July 2016.

In or around June and July 2016, Defendants and their co-conspirators used the Facebook group “Being Patriotic,” the Twitter account @March_for_Trump, and other ORGANIZATION accounts to organize two political rallies in New York. The first rally was called “March for Trump” and held on June 25, 2016. The second rally was called “Down with Hillary” and held on July 23, 2016.

a. In or around June through July 2016, Defendants and their co-conspirators purchased advertisements on Facebook to promote the “March for Trump” and “Down with Hillary” rallies.

b. Defendants and their co-conspirators used false U.S. personas to send individualized messages to real U.S. persons to request that they participate in and help organize the rally. To assist their efforts, Defendants and their co-conspirators, through false U.S. personas, offered money to certain U.S. persons to cover rally expenses.

c. On or about June 5, 2016, Defendants and their co-conspirators, while posing as a U.S. grassroots activist, used the account @March_for_Trump to contact a volunteer for the Trump Campaign in New York. The volunteer agreed to provide signs for the “March for Trump” rally.

[snip]

On or about July 23, 2016, Defendants and their co-conspirators used the email address of a false U.S. persona, [email protected], to send out press releases to over thirty media outlets promoting the “Down With Hillary” rally at Trump Tower in New York City.

The description of a IRA-organized event at Trump Tower the day after WikiLeaks dropped the DNC emails, in particular, suggests the possibility of a great deal of coordination, coordination with people in the US.

Similarly, the extended descriptions of events in Florida may also take on added relevance in the future, particularly coming as they did in tandem with Guccifer 2.0’s release of DCCC data targeting FL. (And this, in turn, should focus even more attention on the FL congressmen like Matt Gaetz and Ron DeSantis who’re leading the pushback on Mueller’s investigation.)

Using the term “co-conspirator” 119 times

Perhaps most interesting, given the tiny nods to what other intelligence Mueller might have, are the 119 uses of the word “co-conspirators.” Almost all of these uses seem to necessarily mean unnamed IRA employees working from the same St. Petersburg location described as trolling. Several times the co-conspirators are clearly described as located in Russia. So it may be that all references to co-conspirators here are just a way to refer to the 70 other people involved in this operation at IRA. But that’s not necessarily the case.

Other uses of “co-conspirator” involve wider knowledge, perhaps an outsider’s knowledge of a go-between role Prigozhin might have had.

But others are things that might have involved a stateside co-conspirator, such as the mention of co-conspirators helping to set up the May 29, 2016 Prigozhin birthday tribute in front of the White House, co-conspirators tracking US social media use, co-conspirators engaged in identity theft, co-conspirators promoting claims of voter fraud, co-conspirators destroying data. Several of those things (such as tracking US social media use or claiming Hillary was going to steal the election) are things we know Trump associates were also doing. Others might be facilitated by someone stateside. So those uses of the term could be people not employed by IRA.

Which is to say, this indictment might be (probably is) intended to address just the activities of those employed by IRA. But that’s not necessarily the case.

Update: added the public indictment part.

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.

Under Cover of the Nunes Memo, Russian Spooks Sneak Openly into Meetings with Trump’s Administration

On December 17, Vladimir Putin picked up the phone and called Donald Trump.

Ostensibly, the purpose of the call was to thank Trump for intelligence the US provided Russia that helped them thwart a terrorist attack. Here’s what the White House readout described.

President Vladimir V. Putin of Russia called President Donald J. Trump today to thank him for the advanced warning the United States intelligence agencies provided to Russia concerning a major terror plot in Saint Petersburg, Russia. Based on the information the United States provided, Russian authorities were able to capture the terrorists just prior to an attack that could have killed large numbers of people. No Russian lives were lost and the terrorist attackers were caught and are now incarcerated. President Trump appreciated the call and told President Putin that he and the entire United States intelligence community were pleased to have helped save so many lives. President Trump stressed the importance of intelligence cooperation to defeat terrorists wherever they may be. Both leaders agreed that this serves as an example of the positive things that can occur when our countries work together. President Putin extended his thanks and congratulations to Central Intelligence Agency (CIA) Director Mike Pompeo and the CIA. President Trump then called Director Pompeo to congratulate him, his very talented people, and the entire intelligence community on a job well done!

Putin, of course, has a history of trumping up terrorist attacks for political purposes (which is not to say he’s the only one).

In Trump’s Russia, top spooks come to you

That call that Putin initiated serves as important background to an event (or several — the details are still uncertain) that happened earlier this week, as everyone was distracted with Devin Nunes’ theatrics surrounding his memo attacking the Mueller investigation into whether Trump has engaged in a conspiracy with Russia. All three of Russia’s intelligence heads came to DC for a visit.

The visit of the sanctioned head of SVR, Sergey Naryshkin — Russia’s foreign intelligence service — was ostentatiously announced by Russia’s embassy.

SVR is the agency that tried to recruit Carter Page back in 2013, and which has also newly been given credit for the hack of the DNC in some Dutch reporting (and a recent David Sanger article). It’s clear that SVR wanted Americans to know that their sanctioned head had been through town.

As the week went on, WaPo reported that FSB’s Alexander Bortnikov and GRU’s Colonel General Igor Korobov had also been through town (GRU has previously gotten primary credit for the hack and Korobov was also sanctioned in the December 2016 response, and FSB was described as having an assisting role).

Pompeo met with Sergey Naryshkin, the head of Russia’s Foreign Intelligence Service or SVR, and Alexander Bortnikov, who runs the FSB, which is the main successor to the Soviet-era security service the KGB.

The head of Russia’s military intelligence, the GRU, also came to Washington, though it is not clear he met with Pompeo.

A senior U.S. intelligence official based in Moscow was also called back to Washington for the meeting with the CIA chief, said a person familiar with the events, who, like others, spoke on the condition of anonymity to discuss the sensitive meeting.

Treasury defies Congress on Russian sanctions

These visits have been associated with Trump’s decision not to enforce congressionally mandated sanctions, claiming that the threat of sanctions is already working even as Mike Pompeo insists that Russia remains a threat. In lieu of providing a mandated list of Russians who could be sanctioned, Treasury basically released the Forbes list of richest Russians, meaning that the sanction list includes people who’re squarely opposed to Putin. In my opinion, reporting on the Forbes list underplays the contempt of the move. Then, today, Treasury released a memo saying Russia was too systematically important to sanction.

Schumer’s questions and Pompeo’s non-answers

Indeed, Chuck Schumer emphasized sanctions in a letter he sent to Dan Coats, copied to Mike Pompeo, about the Naryshkin visit (the presence of the others was just becoming public).

As you are well aware, Mr. Naryshkin is a Specially Designated National under U.S. sanctions law, which imposes severe financial penalties and prohibits his entry into the U.S. without a waiver. Moreover, the visit of the SVR chief occurred only days before Congress was informed of the president’s decision not to implement sanctions authorized the Countering America’s Adversaries Through Sanctions Act (CAATSA), which was passed with near unanimous, bipartisan support. CAATSA was designed to impose a price on Russian President Vladimir Putin and his cronies for well-documented Russian aggression and interference in the 2016 election. However, the administration took little to no action, even as Russia continues its cyberattacks on the U.S.

Certainly, that seems a fair conclusion to draw — that by emphasizing Naryshkin’s presence, Russia was also boasting that it was immune from Congress’ attempts to sanction it.

But Mike Pompeo, who responded to Schumer, conveniently responded only to Schumer’s public comments, not the letter itself.

I am writing to you in response to your press conference Tuesday where you suggested there was something untoward in officials from Russian intelligence services meeting with their U.S. counterparts. Let me assure you there is not. [my emphasis]

This allowed Pompeo to dodge a range Schumer’s questions addressing Russia’s attacks on the US.

What specific policy issues and topics were discussed by Mr. Naryshkin and U.S. officials?

    1. Did the U.S. officials who met with Mr. Naryshkin raise Russia’s interference in the 2016 elections?  If not, why was this not raised? If raised, what was his response?
    2. Did the U.S. officials who met with Mr. Naryshkin raise existing and congressionally-mandated U.S. sanctions against Russia discussed? If not, why was this not raised? If raised, what was his response?
    3. Did the U.S. officials who met with Mr. Naryshkin raise ongoing Russian cyber attacks on the U.S. and its allies, including reported efforts to discredit the Federal Bureau of Investigation and law enforcement investigations into Russian interference in the 2016 U.S. elections? If not, why was this not raised? If raised, what was his response?
    4. Did the U.S. officials who met with Mr. Naryshkin make clear that Putin’s interference in the 2018 and 2020 elections would be a hostile act against the United States? If not, why was this not raised? If raised, what was his response?

Instead of providing responses to questions about Russian tampering, Pompeo instead excused the whole meeting by pointing to counterterrorism, that same purpose, indeed — the same attack — that Putin raised in his December phone call.

We periodically meet with our Russian intelligence counterparts — to keep America safe. While Russia remains an adversary, we would put American lives at greater risk if we ignored opportunities to work with the Russian services in the fight against terrorism. We are proud of that counterterror work, including CIA’s role with its Russian counterparts in the recent disruption of a terrorist plot targeting St. Petersburg, Russia — a plot that could have killed Americans.

[snip]

Security cooperation between our intelligence services has occurred under multiple administrations. I am confident that you would support CIA continuing these engagements that are aimed at protecting the American people.

The contempt on sanctions makes it clear this goes beyond counterterrorism

All this together should allay any doubt you might have that this meeting goes beyond counterterrorism, if, indeed, it even has anything to do with counterterrorism.

Just as one possible other topic, in November, WSJ reported that DOJ was working towards charging Russians involved in the hack after the new year.

The Justice Department has identified more than six members of the Russian government involved in hacking the Democratic National Committee’s computers and swiping sensitive information that became public during the 2016 presidential election, according to people familiar with the investigation.

Prosecutors and agents have assembled evidence to charge the Russian officials and could bring a case next year, these people said. Discussions about the case are in the early stages, they said.

If filed, the case would provide the clearest picture yet of the actors behind the DNC intrusion. U.S. intelligence agencies have attributed the attack to Russian intelligence services, but haven’t provided detailed information about how they concluded those services were responsible, or any details about the individuals allegedly involved.

Today, Russia issued a new warning that America is “hunting” Russians all over the world, citing (among others) hacker Roman Seleznev.

“American special services are continuing their de facto hunt for Russians all over the world,” reads the statement published on the ministry’s website on Friday. The Russian diplomats also gave several examples of such arbitrary detentions of Russian citizens that took place in Spain, Latvia, Canada and Greece.

“Sometimes these were actual abductions of our compatriots. This is what happened with Konstantin Yaroshenko, who was kidnapped in Liberia in 2010 and secretly taken to the United States in violation of Liberian and international laws. This also happened in 2014 with Roman Seleznyov, who was literally abducted in the Maldives and forcefully taken to American territory,” the statement reads.

The ministry also warned that after being handed over to the US justice system, Russian citizens often encounter extremely biased attitudes.

“Through various means, including direct threats, they attempt to coerce Russians into pleading guilty, despite the fact that the charges of them are far-fetched. Those who refuse get sentenced to extraordinarily long prison terms.”

And, as I noted earlier, Trey Gowdy — one of the few members of Congress who has seen where Mueller is going with this investigation — cited the import of the counterintelligence case against Russia in a Sunday appearance.

CHRIS WALLACE: Congressman, we’ll get to your concerns about the FBI and the Department of Justice in a moment. But — but let me begin first with this. Do you still trust, after all you’ve heard, do you still trust Special Counsel Robert Mueller to conduct a fair and unbiased investigation?

REP. TREY GOWDY, R-SC, OVERSIGHT COMMITTEE CHAIRMAN: One hundred percent, particularly if he’s given the time, the resources and the independence to do his job. Chris, he didn’t apply for the job. He’s where he is because we have an attorney general who had to recuse himself. So Mueller didn’t raise his hand and say, hey, pick me. We, as a country, asked him to do this.

And, by the way, he’s got two — there are two components to his jurisdiction. There is a criminal component. But there’s also a counterintelligence component that no one ever talks about because it’s not sexy and interesting. But he’s also going to tell us definitively what Russia tried to do in 2016. So the last time you and I were together, I told my Republican colleagues, leave him the hell alone, and that’s still my advice.

Schumer and other Democrats demanding answers about this visit might think about any ways the Russians might be working to undermine Mueller’s investigation or transparency that might come of it.

Three weeks of oversight free covert action

The timing of this visit is particularly concerning for another reason. In the three week continuing resolution to fund the government passed on January 22, the House Appropriations Chair Rodney Frelinghuysen added language that would allow the Administration to shift money funding intelligence activities around without telling Congress. It allows funds to,

“be obligated and expended notwithstanding section 504(a)(1) of the National Security Act of 1947.”

Section 504(a)(1) is the piece of the law that requires intelligence agencies to spend money on the program the money was appropriated for. “Appropriated funds available to an intelligence agency may be obligated or expended for an intelligence or intelligence-related activity only if those funds were specifically authorized by the Congress for use for such activities; or …”

The “or” refers to the intelligence community’s obligation to inform Congress of any deviation. But without any obligation to spend funds as specifically authorized, there is no obligation to inform Congress if that’s not happening.

Since the only real way to prohibit the Executive is to prohibit them to spend money on certain things, the change allows the Trump Administration to do things they’ve been specifically prohibited from doing for the three week period of the continuing resolution.

Senators Burr and Warner tried to change the language before passage on January 22, to no avail.

This year’s Defense Authorization included a whole slew of limits on Executive Branch activity, including mandating a report if the Executive cooperates with Russia on Syria and prohibiting any military cooperation until such time as Russia leaves Ukraine. It’s possible the Trump Administration would claim those appropriations-tied requirements could be ignored during the time of the continuing resolution.

Which just happened to cover the period of the Russian visit.

Our friends are getting nervous

Meanwhile, both before and after the visit, our allies have found ways to raise concerns about sharing intelligence with the US in light of Trump’s coziness with Russia. A key subtext of the stories revealing that Netherlands’ AIVD saw Russian hackers targeting the Democrats via a hacked security camera was that Rick Ledgett’s disclosure of that operation last year had raised concerns about sharing with the US.

President elect Donald Trump categorically refuses to explicitly acknowledge the Russian interference. It would tarnish the gleam of his electoral victory. He has also frequently praised Russia, and president Putin in particular. This is one of the reasons the American intelligence services eagerly leak information: to prove that the Russians did in fact interfere with the elections. And that is why intelligence services have told American media about the amazing access of a ‘western ally’.

This has led to anger in Zoetermeer and The Hague. Some Dutchmen even feel betrayed. It’s absolutely not done to reveal the methods of a friendly intelligence service, especially if you’re benefiting from their intelligence. But no matter how vehemently the heads of the AIVD and MIVD express their displeasure, they don’t feel understood by the Americans. It’s made the AIVD and MIVD a lot more cautious when it comes to sharing intelligence. They’ve become increasingly suspicious since Trump was elected president.

Then, the author of a book on Israeli’s assassinations has suggested that the intelligence Trump shared with the Russians goes beyond what got publicly reported, goes to the heart of Israeli intelligence operations.

DAVIES: So if I understand it, you know of specific information that the U.S. shared with the Russians that has not been revealed publicly and that you are not revealing publicly?

BERGMAN: The nature of the information that President Trump revealed to Foreign Minister Lavrov is of the most secretive nature.

Finally, a piece on the Nunes memo out today suggests the British will be less likely to share intelligence with Trump’s administration after the release of the memo (though this is admittedly based on US congressional claims, not British sources).

Britain’s spy agencies risk having their intelligence methods revealed if Donald Trump releases a controversial memo about the FBI, congressional figures have warned.

The UK will be less likely to share confidential information if the secret memo about the Russian investigation is made public, according to those opposing its release.

Clearly, this meeting goes beyond counterterrorism cooperation. And given the way that both Treasury and CIA have acted contemptuously in the aftermath of the visit, Schumer and others should be far more aggressive in seeking answers about what this visit really entailed.

Update: I’ve added the section on Section 504.

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.

The Trey Gowdy Retirement

I’ve had a busy few days at other sites. I did this piece (on the dossier) at Politico and had an enjoyable appearance on Democracy Now this morning.

I want to highlight something I discussed on DN that has gotten drowned out in the rest of the day’s news: Trey Gowdy’s decision to retire, taken even as he was raising money for his reelection.

AMY GOODMAN: You know, I meant to say progressive activists, not even Democratic congressmembers, when it came to being concerned about FBI and intelligence and NSA overreach. But you mentioned Trey Gowdy. And yesterday, the Republican congressman from South Carolina, a chair of the House Oversight Committee, announced he is not going to seek re-election. He was instrumental in crafting the Nunes memo. Can you talk about the significance of him leaving Congress, leader in the Benghazi investigation, attacking Hillary Clinton, etc.?

MARCY WHEELER: Yeah, Trey Gowdy, when he’s in front of a camera, is one of the most blustery Republican partisans. But you can tell, even, for example, from the Carter Page transcript, his interview with House Intelligence Committee, that behind closed doors he actually is a competent prosecutor, which is—you know, he’s got a background in that. And he can hammer Republican witnesses.

So, what’s interesting about Gowdy is that he—the underlying materials—this is another complaint the Democrats have. The only people who have read the underlying materials are Adam Schiff, four staffers—two of Adam Schiff’s and two of Devin Nunes’s—and Trey Gowdy. It would have been Devin Nunes, but Devin Nunes, probably because of the recusal you talked about earlier, had Gowdy do it instead. So, the only people who have actually looked at the underlying materials include Trey Gowdy. Now, he didn’t write the memo, Nunes’s staffers did. So there’s this game of telephone going on already.

On Sunday, on one of the Sunday shows, Trey—I think it was a Fox show—Trey Gowdy said, “You know, this memo should come out. It’s important. But my side should not use it to undermine the Mueller investigation.” And the reason he gave is that what is not being seen about the Mueller investigation is there’s a whole counterintelligence side to it. There’s a whole side of it investigating how the Russians tampered in our election. And according to Gowdy, who has seen these underlying documents, he thinks that’s an important and legitimate investigation.

Now, we don’t know fully why he decided not to run. He did cite yesterday that he’s sick of politics. But what’s interesting is, yesterday morning, he was still fundraising. So, as of yesterday morning, he was still planning on running. There’s also reports that Don McGahn, who is the White House counsel, who has been in this sort of obstructive role for Trump, as well, was discussing with Gowdy a position on the Fourth Circuit as a circuit court judge, which is something Gowdy has been interested in the past, and Gowdy turned that down. So, Gowdy, even though he is this fire-breathing partisan hack—you know, you go back to the Benghazi case—he seems to have seen something in the underlying investigation that troubles him, that his Republican partisan colleagues are not paying attention to. And so, Gowdy may surprise us, going forward. But I do think that that is an interesting development yesterday, that the one guy on the House Intelligence Committee who’s actually seen the underlying intelligence has decided to get out of the Republican partisan hackery rat race.

This piece in Politico emphasizes his disillusionment with the partisanship, especially around the Mueller inquiry. It sounds like he’s getting concerned that the GOP defense of Trump is beginning to threaten DOJ.

Gowdy has found himself butting heads in recent months with Intelligence Chairman Devin Nunes (R-Calif.) and other pro-Trump Republicans who have hinted at corruption at the FBI. He’s expressed concerns about anti-Trump texts by some FBI officials, and he has said on TV that Congress has a duty to oversee the agency. But behind the scenes he’s had to rein in some of his conservative colleagues who want to undercut the entirety of the Justice Department, which he views as essential to American life.

I know we’ve been trained to consider Gowdy the worst kind of partisan, but in some witness transcripts it’s clear he’s seeing the GOP bullshit (and, like I said on DN, he’s the one guy who has seen what Mueller is looking at).

Gowdy is trusted by many of his colleagues. And if he begins to defend the Mueller inquiry, things may begin to shift under Trump.

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.

Carter Page Did Not Need to be a Spy to be Targeted Under FISA

The NYT has a story that explains something I was wondering about over the weekend: how the Nunes memo could be used — as it reportedly is being used — to justify a Trump bid to fire Rod Rosenstein. Shortly after he was confirmed, NYT reveals, Rosenstein approved the renewal application for the FISA order targeting Carter Page.

A secret, highly contentious Republican memo reveals that Deputy Attorney General Rod J. Rosenstein approved an application to extend surveillance of a former Trump campaign associate shortly after taking office last spring, according to three people familiar with it.

[snip]

[I]n their efforts to discredit the inquiry, Republicans could potentially use Mr. Rosenstein’s decision to approve the renewal to suggest that he failed to properly vet a highly sensitive application for a warrant to spy on Mr. Page, who served as a Trump foreign policy adviser until September 2016.

The news is interesting for several reasons. First, it provides more granularity for the timing of the surveillance targeted at Page.

American law enforcement officials began conducting surveillance on him in the fall of 2016, shortly after he left the campaign. It is unclear what they learned about Mr. Page between then and when they sought the order’s renewal roughly six months later. It is also unknown whether the surveillance court granted the extension.

The renewal effort came in the late spring, sometime after the Senate confirmed Mr. Rosenstein as the Justice Department’s No. 2 official in late April. Around that time, following Mr. Trump’s firing of James B. Comey as F.B.I. director in May, Mr. Rosenstein appointed Mr. Mueller, a former head of the bureau, to take over the department’s Russia investigation.

Rosenstein was sworn in on April 26. He appointed Mueller on May 17. If we take that window as the timeframe for the reapplication date, it would date the prior authorization (orders targeting US persons last 90 days) to roughly January 26 through February 17, and the fall one to October 26 to November 17 time frame. The later you get in that initial time period, the closer you get to the time when Page would have been planning a follow-up visit to Russia in December.

Glenn Simpson describes Christopher Steele’s second meeting with the FBI, in Rome, about his dossier as occurring sometime in September. So there was perhaps a month between the time Steele provided information on Page and the time the FBI obtained the new order targeting Page.

On top of what the NYT says about Democratic complaints about this memo, there are other reasons to believe this is bogus. Even on 702 — but especially on FISA — the retasking process requires the government to show it obtained new information during the prior surveillance period, meaning the application Rosenstein signed would have been the second to do so.

Plus, there’s one more point.

To be targeted FBI had to provide proof that Page was an agent of a foreign power.

The renewal shows that the Justice Department under President Trump saw reason to believe that the associate, Carter Page, was acting as a Russian agent.

[snip]

To obtain the warrant involving Mr. Page, the government needed to show probable cause that he was acting as an agent of Russia.

But that does not actually entail proving that he, himself, is spying on the US. An American may be targeted as an agent of a foreign power if he knowingly aids or abets someone involved in clandestine intelligence gathering that may involve a violation of criminal statutes.

(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;

(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;

[snip]

(E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C).

That’s the standard that — given that Page had been warned by FBI in 2013 that he was being recruited — might be fairly easily within reach for Page. I suspect we’ll eventually learn (after whatever brouhaha ensues) that FBI claimed Page was either aiding or abetting Russian spies, or conspiring with them, not that he was a spy himself. But that’s a distinction that may be lost on Republicans trying to politicize this.

There’s one more thing (one I don’t expect applies here but is worth pointing out in any case). The government can target any facility an agent of a foreign power uses, whether or not the agent owns it.

(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power

This is how the government got to do a scan of all Yahoo’s users, because the targeted foreign power was using Yahoo mail, generally, and the specific signature searched on identified the people as targets.

Two more points. Trey Gowdy reviewed the underlying intelligence to the memo  that is now being used to target Rosenstein, he’s telling colleagues to stop pressuring Mueller in part because Mueller is pursuing a counterintelligence component (precisely the kind of thing targeted with FISA!) that will explain what really happened in 2016.

Gowdy said there are “two components” to the purview of Mueller’s investigation.

“There is a criminal component. But there’s also a counterintelligence component that no one ever talks about because it’s not sexy and interesting. But he’s also going to tell us definitively what Russia tried to do in 2016,” Gowdy said. “So the last time you and I were together, I told my Republican colleagues, leave him the hell alone, and that’s still my advice.”

Gowdy is one of about six members of Congress who has seen the most sensitive materials in Mueller’s case. It’s really bizarre that he’s saying the GOP needs to back off Mueller because of his CI focus when they’re likely misunderstanding how FISA is used in CI.

Finally, remember that nothing that Mueller is known to have done is identifiably fruit from this Carter Page order. Even with Manafort — who was also reportedly targeted in a FISA order — Mueller has not given FISA notice to suggest he’s relying on anything derived from FISA (though such notice is always suspect).

So even if he dossier is dodgy, it may be that Mueller is pursuing his case such that he avoids any taint from it.

Update: I keep forgetting, but something that happened with Carter Page may well have been abusive, but it’s not what the Republicans are (as far as the public reporting goes) focusing on. It’s a sign that they’re dummies who don’t understand what they purportedly oversee that they haven’t figured this out. I’m not going to lay it out here — because those leading this hoax just reauthorized the practice in any case — but I have written it up elsewhere.

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.

The Increasing Panic Surrounding Devin Nunes’ “Extraordinarily Reckless” Plan to Release Memo

I thought I’d chronicle the increasingly senior panic surrounding Devin Nunes’ plan — reportedly backed by Trump — to release the Nunes memo without first letting FBI and DOJ review it. Clearly, there’s concern this will burn underlying sources for the FISA application(s) described in the report. I don’t rule our the belated revelation of something I’ve been hearing for at least six months — that the Dutch passed on intelligence in real time of APT 29 hacking US targets and had an inside view of the operations — isn’t meant as a warning of what will happen if the US further burns the Dutch.

I’m also interested in AAG Stephen Boyd’s emphasis that Nunes delegated his review of these documents to Trey Gowdy, perhaps suggesting both will have some kind of liability for any damage that will result from this game of telephone.

Sunday, January 21: FBI denied a copy of Nunes’ memo.

“The FBI has requested to receive a copy of the memo in order to evaluate the information and take appropriate steps if necessary. To date, the request has been declined,” said Andrew Ames, a spokesperson for the FBI.

Wednesday, January 24: Richard Burr’s Senate Intelligence Committee staffers denied a copy of the memo.

Senate Intelligence Committee Chairman Richard Burr’s staff has not been given access to a classified memo drafted by House Intelligence Committee Chairman Devin Nunes, a sign of how closely House Republicans are guarding allegations of Justice Department wrongdoing over surveillance activities in the Russia investigation.

According to three sources familiar with the matter, Burr’s staff requested a copy of the memo and has been denied, just as the FBI and Justice Department have also been denied reviewing a copy of the document.

Wednesday, January 24: Trump’s Assistant Attorney General for Legislative Affairs Stephen Boyd writes letter noting that releasing memo will violate agreement.

Recent news reports indicate a classified memorandum prepared by House Permanent Select Committee on Intelligence (HPSCI or Committee) staff alleges abuses at the Department of Justice (Department) and the Federal Bureau of Investigation (FBI) in the FISA process. We understand many members of the House of Representatives have views this memorandum and that it has raised concerns.

As you know, we have provided HPSCI with more than 1,000 pages of classified documents relating to the FBI’s relationship, if any, with a source and its reliance, if any, on information provided by that source. Media reports indicate that the Committee’s memorandum contains highly classified material confidentially provided by the Department to the Committee in a secure facility.1

[snip]

In addition, we have also heard that HPSCI is considering making the classified memorandum available to the public and the media, an unprecedented action. We believe it would be extraordinarily reckless for the Committee to disclose such information publicly without giving the Department and the FBI the opportunity to review the memorandum and to advise the HPSCI of the risk of harm to national security and to ongoing investigations that could come from public release. Indeed, we do not understand why the Committee would possibly seek to disclose classified and law enforcement sensitive information without first consulting with the relevant members of the Intelligence Community.

Seeking Committee approval of public release would require HPSCI committee members to vote on a staff-drafted memorandum that purports to be based on classified source materials that neither you nor most of them have seen. Given HPSCI’s important role in overseeing the nation’s intelligence community, you well understand the damaging impact that the release of classified material could have on our national security and our ability to share and receive sensitive information from friendly foreign governments.

[snip]

Additionally, we believe that wider distribution of the classified information presumably contained within your memorandum would represent a significant deviation from the terms of access granted in good faith by the Department, HPSCI, and the Office of Speaker Paul Ryan.

The Department renews its request — as previously made in a personal appeal by the Director of the FBI — for an opportunity to review the memorandum in question so that it may respond to the Committee before any vote on public release.

1 To date, the Department has provided detailed briefings and made available to HPSCI documents requested as part of its investigation into Russian influence in the 2016 election. The terms of access stipulated that review of the documents would be limited to the Chairman or his designee, the Ranking Member or his designee, and two staff members each. (Mr. Gowdy reviewed the documents for the majority. Mr. Schiff reviewed the documents for the minority.) Other committees of jurisdiction — the Senate Select Committee on Intelligence, the Senate Committee on the Judiciary, and the House Committee on the Judiciary — have accepted similar procedural safeguards to protect against improper dissemination of information.

Thursday, January 25: DOJ spox (and close Jeff Sessions ally) Sarah Isgur Flores goes on Fox to argue DOJ should get to look at the memo first,

Let us see it first. At this point, nobody in the Senate or the White House or the Department of Justice or FBI has seen this document, and a number of Congressmen have expressed a lot of concern about it. So we would like to see it. Well, I think we’d certainly want to see any evidence of wrong-doing and take action upon that if there is wrong-doing going on. And then, I think we’d want to discuss, I mean, this is classified material for a reason. It has national security implications. It may have implications for our allies or others in the intelligence community.

Thursday, January 25: Majority Whip and SSCI member John Cornyn says Nunes should let DOJ review the memo.

Cornyn, who has been briefed on Nunes memo, suggests Nunes should listen to DOJ concerns. “We all should pay attention to what the Justice Department’s concerns are, and I’m sure the chairman will. It’s always good when we communicate and consult with one another,” he told me

Thursday, January 25: James Lankford says Nunes should follow “proper declassification procedures.”

Update: First, I fixed the dates.

Second, I wasn’t aware of this statement from Paul Ryan’s spox, sometime in the last day. (h/t Maestro)

A spokesman for Ryan pushed back at the DOJ’s characterization of the negotiations.

“As previously reported, the speaker’s only message to the Department was that it needed to comply with oversight requests and there were no terms set for its compliance,” Doug Andres, the spokesman, said in a statement.

This is fairly breathtaking, as it suggests Ryan (and by association Nunes) are not agreeing to abide by any of the security precautions imposed on the access to highly sensitive case files Nunes obtained.

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.

How Does the Strzok Text Dump Differ from Jim Comey’s July 5, 2016 Speech?

I’m a bit bemused by the response to DOJ’s release of the texts between Peter Strzok and Lisa Page. As Rod Rosenstein testified before HJC yesterday, the release came after notice to Strzok and Page through their lawyers. The release of the texts came with the approval of DOJ IG Michael Horowitz — who says the investigation into the underlying conduct may last through spring. And Rosenstein strongly implied he wanted them released, taking responsibility for it (while claiming not to know whether Jeff Sessions had a role in their release).

As he explained to Trey Gowdy — who, like a number of Republicans, claimed to be at a loss of what to say to constituents who asked “what in the hell is going on with DOJ and the FBI” — the release of the texts proves that any wrongdoing will be met with consequences.

Gowdy: What happens when people who are supposed to cure the conflict of interest have even greater conflicts of interests than those they replace? That’s not a rhetorical question. Neither you nor I nor anyone else would ever sit Peter Strzok on a jury, we wouldn’t have him objectively dispassionately investigate anything, knowing what we now know. Why didn’t we know it ahead of time, and my last question, my final question — and I appreciate the Chairman’s patience — how would you help me answer that question when I go back to South Carolina this weekend?

Rosenstein: Congressman, first of all, with regard to the Special Counsel, Mr. Strzok was already working on the investigation when the Special Counsel was appointed. The appointment I made was of Robert Mueller. So what I’d recommend you tell your constituents is that Robert Mueller and Rod Rosenstein and Chris Wray are accountable and that we will ensure that no bias is reflected in any actions taken by the Special Counsel or any matter within the jurisdiction of the Department of Justice. When we have evidence of any inappropriate conduct, we’re going to take action on it. And that’s what Mr. Mueller did here as soon as he learned about this issue — he took action — and that’s what I anticipate the rest of our prosecutors, the new group of US Attorneys, our Justice Department appointees. They understand the rules and they understand the responsibility to defend the integrity of the Department. If they find evidence of improper conduct, they’re going to take action.

So Congressman, that’s the best assurance I can give you. But actually, there’s one other point, which is you should tell your constituents that we exposed this issue because we’re ensuring that the Inspector General conducts a thorough and effective investigation, and if there is any evidence of impropriety, he’s going to surface it and report about it publicly.

I actually think Rosenstein did a much better job than others apparently do, yesterday, at distinguishing between the Strzok texts (which apparently were on DOJ issued cell phones and, in spite of having Hillary investigation subject lines may not have been logged into Sentinel) and the political views of Andrew Weissmann or the past representation of Jeannie Rhee. Furthermore, he repeatedly said he would only fire Mueller for cause, and made it clear there had been no cause. Several times he talked about how closely he has worked with Mueller, such as on the scope of what gets included in his investigation (even while defending the charges against Manafort as appropriately included).

That said, I wonder how Rosenstein distinguishes, in his own mind, what he did in approving the release of the texts from an ongoing investigation and what Jim Comey did on July 5, 2016, when he gave a press conference about why Hillary Clinton had not been charged. While Rosenstein’s biggest complaint in his letter supporting the firing of Comey was that he substituted his decision for that of prosecutors, he also argued that the Department shouldn’t release derogatory information gratuitously.

Compounding the error, the Director ignored another longstanding principle: we do not hold press conferences to release derogatory information about the subject of a declined criminal investigation. Derogatory information sometimes is disclosed in the course of criminal investigations and prosecutions, but we never release it gratuitously. The Director laid out his version of the facts for the news media as if it were a closing argument, but without a trial. It is a textbook example of what federal prosecutors and agents are taught not to do.

In response to skeptical question at a congressional hearing, the Director defended his remarks by saying that his “goal was to say what is true. What did we do, what did we find, what do we think about it.” But the goal of a federal criminal investigation is not to announce our thoughts at a press conference. The goal is to determine whether there is sufficient evidence to justify a federal criminal prosecution, then allow a federal prosecutor who exercises authority delegated by the Attorney General to make a prosecutorial decision, and then – if prosecution is warranted – let the judge and jury determine the facts. We sometimes release information about closed investigations in appropriate ways, but the FBI does not do it sua sponte.

In some ways this is worse because of the off chance that Inspector General Michael Horowitz finds that these texts don’t merit some kind of response; the investigation is not finished yet.

That said, I actually do think there’s a difference: Strzok and Page are department employees, rather than subjects of an external investigation. DOJ exercises awesome power, and usually DOJ is releasing the texts of private citizens in this kind of embarrassing way.

Even former clearance holders seem surprised that these texts were discovered. It is unbelievable to me how few people understand the great liberty that counterintelligence investigators like Strzok can have in obtaining the communications of investigative targets like he has now become, particularly during leak or insider threat investigations. That may not be a good thing, but it is what other targets have been subjected to. So I think it reasonable to have FBI’s own subject to the same scrutiny, for better and worse.

I do think it worthwhile for DOJ to show that it will hold people accountable for improper actions.

Plus, aside from one August comment — which we may obtain more context on when Horowitz does finish this investigation — about an “insurance” policy against Trump, the texts simply aren’t that damning (though they do raise questions about Strzok’s role in the investigation). Strzok agrees with Rex Tillerson, after all, that Trump is an idiot.

So as far as that goes, I’m actually okay with Rosenstein’s release of these texts.

Except I worry about something else.

I actually worry less about Mueller getting fired than just about every other Trump opponent on the planet. Rosenstein seems intent to let him do his work, and (notably at several times during the hearing) seems to agree with the gravity of the investigation. Trump can’t get to Mueller without taking out Rosenstein (and Rachel Brand). And I actually think Rosenstein has thus far balanced the position of a Republican protecting a Republican from Republican ire fairly well. I expect the next shoes Mueller drops — whenever that happens — will change the tone dramatically.

What bothers me most about the release of these texts, however, is that they are a response to the same pressure that Comey was responding to (and which he thought he was smart enough to manage, just as Rosenstein surely thinks he can handle it here).

They are a response — from the same people who ran the Benghazi investigation then ignored DOJ’s prosecution of the Benghazi mastermind — to a willingness to challenge the very core of DOJ functionality, all in a bid to politicize it.

Perhaps Rosenstein is right to bide his time — to create space for Mueller to drop the next few shoes — with the release of the Strzok texts.

But at some point, Republicans need to start calling out Republicans for the damage they’re doing to rule of law with this constant playing of the refs, this demand for proof that Democrats aren’t getting some advantage through the rule of law. If those next shoes don’t have the effect I imagine, it may be too late.

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.

“The Goals That Are Being Scored” … the Carter Page Saga

In the middle of the Carter Page testimony to the House Intelligence Committee last week, Adam Schiff tried to get him to answer whether he spoke about buying a stake of Rosneft during his July 2016 trip to Moscow — a key claim from the Steele dossier. Page professed that it might be possible, but he couldn’t remember such a discussion because he was watching Ronaldo on TV at the time.

He may have briefly mentioned it when we were looking up from this Portugal — Ronaldo, whoever the — you know, the goals that are being scored. That may have come up. But I have no definitive recollection of that.

Page comes off, often, as someone utterly clueless about how both the Trump campaign officials and the Russians trying to use him were doing so.

It depends on the definition of meet

That said, the most interesting bits involve the things Page tried to hide or obfuscate, such as his claim he never met Trump even after having been in a lot of meetings with him.

Mr. Rooney: Did you ever meet Mr. Trump?

Mr. Page: I have never met him in my life. I’ve been in a lot of meetings with him, and I’ve learned a lot from him, but never actually met him face-to-face.

He does the same with Arkadiy Dvorkovich, Russia’s Deputy Prime Minister, when Adam Schiff tries to point out that meeting him in July 2016 would amount to meeting a senior official.

Mr. Schiff: And you don’t consider him to be a high-up official or someone in an official capacity?

Mr. Page: I — nothing I — it was — again, I did not meet with him. I greeted him briefly as he was walking off the stage after his speech.

Page even compares these two instances of not-meetings later in his testimony.

[I]t goes back to the point I mentioned with listening to speeches, listening to particularly Arkadiy Dvorkovich’s speech, right. Again, great insights just like I learned great insights — even though I’ve met — I’ve never met Donald J. Trump in my life, I’ve learned a lot from him.

Ultimately, even Trey Gowdy finds this obfuscation around the word “meet” to be too much.

Mr. Gowdy: All right. I’ve written down four different words. I didn’t think I’d ever be going through this with anyone, but we’ve got to, I guess. You seem to draw a distinction between a meeting, a greeting, a conversation, and you hearing a speech.

JD Gordon’s central role

I pointed out last week how JD Gordon was playing the press in the wake of the Papadopoulos plea agreement being unsealed. Page’s testimony may explain why: because Gordon was the key person coordinating Page’s activities.

Page at first tries to hide this, before he admits that JD Gordon was his supervisor on the campaign.

And J.D. Gordon was brought in, and he was sort of the de facto organizers [sic] for our group, although not — there was no official command structure, because, again, it was an informal quasi think tank, if you will.

Page later describes Gordon as the most formal of the foreign policy group.

[T]he thing with J.D. is that — again, we’re an informal group, right. He was probably the most formal. I believe he may have even had — if I’m not mistaken, he may have had a Trump campaign email address. I had spoken with him on that — a few occasions that are — you know, we’d get together for a dinner. I may have sent an email or two to him on that. And again, he never definitively answered one way or another.

And Page seems to have treated his conversations with Gordon with some sensitivity (though there’s any number of reasons why this might be true, including that they were running a cutthroat political campaign). Eric Swalwell walks Page through an email in which he warned Gordon, in advance of a call, that he’d be in the “Third World” Laguardia Sky Club so could only listen, not speak.

Mr. Swalwell: In a May 24th, 2016, email to J.D. Gordon, Bates stamped [redacted], you wrote: “FYI: At the Newark Sky Club, Delta has a private room when you can have a confidential conversation, but, unfortunately, no such luck at Third World LaGuardia. So I’ll mostly be on receive mode, since there are a significant number of people in the lounge.”

Later in testimony, Schiff describes an email Page sent two days later, telling Gordon, “I’m planning to speak alongside the chairman and CEO of Sberbank as we’ll both be giving commencement addresses as Mosscow’s New economic School on July 8” (in fact the meeting never happened; though that may be because Dvorkovich replaced him).

Perhaps most damning of all, when Page “mentioned to [Jeff Sessions] in passing” (yet another exchange that shows Sessions perjured himself before the Senate) that he was about to go to Moscow, Gordon and Papadopoulos were present as well.

Mr. Schiff: Let me take you back to what we were discussing before our break, the meeting you had at the Republican National Headquarters I think is the building you’re referring to, if I understand correctly. What was the nature of the discussions at that meeting with Mr. Sessions, then-Senator Sessions — was J.D. Gordon present?

Mr. Page: I believe he was.

Mr. Schiff: And George Papadopoulos you believe was there?

Mr. Page: I believe, yes, to the best of my recollection.

This puts some of the key players together, discussing how Page’s trip to Moscow might benefit the campaign.

Finally, in spite of his efforts to downplay his exchange with Dvokovich, Page’s letter to Gordon boasting about it was a key focus.

Mr. Schiff: And in that [email], Dr. Page, didn’t you state, on Thursday and Friday, July 7 and 8, 2016: “Campaign Adviser Carter Page” — you’re referring to yourself in the third person — “presented before gatherings at the New Economic Schoo, NES, in Moscow, including their 2006 [sic] commencement ceremony. Russian Deputy Prime Minister and NES Board Member Arkadiy Dvorkovich also spoke before the event. In a private conversation, Dvorkovich expressed strong support for Mr. Trump and a desire to work toward devising better solutions in response to the vast range of current international problems”?

The others

While less substantive than the focus on JD Gordon, it’s clear Democratic members were interested in the roles of others: Corey Lewandowski, who “hired” Page and okayed his trip to Russia, Hope Hicks, who was in the loop, Sam Clovis, who made him sign an NDA and had another meeting with him before he left for Russia, and Michael Cohen, who kept the NDA (and in fact didn’t provide Page his promised copy). Schiff also got the list of those responsible for changing the platform (which I think is overblown) into the record: in addition to Gordon, Joseph Schmitz, Bert Mizusawa, Chuck Kubic, Walid Phares, and Tera Dahl.

But the most interesting exchange came right at the end, when Schiff walked Page through a list of people he might have interacted when. When he asked about Eric Trump, Page admitted to sending his resignation to the son.

Mr. Schiff: Eric Trump.

Mr. Page: I — when I sent in my letter of — saying that I am taking a leave of absence from the campaign, I sent an email to him and a bunch of other individuals. So that was on — late Sunday night, after I sent the letter to James Comey. I sent a copy of that to them.

Mr. Schiff: So you sent a letter to Eric Trump, but you have had no other interaction with him apart from that?

Mr. Page: No. No.

Mueller probably interviewed Page during the Papadopoulos lag

Finally, there is perhaps the most important detail. Page admits he has spoken with the FBI this year 4-5 times (he appears to have been represented by a lawyer earlier this year, but he’s now draining his savings and representing himself). When asked if he has met with Mueller’s investigators, he notes what I did: his October 10 letter sort of pleading the Fifth was addressed, first and foremost, to Robert Mueller, which would put his testimony between the time George Papadopoulos pled guilty to false statements and the time it was unsealed — the time when Mueller was locking in the testimony of everyone implicated by Papadopoulos’ cooperation.

As I noted the other day, in the affidavit the FBI wrote explaining why they wanted to seal any notice of Papadopoulos’ plea deal, they described their plans to get the testimony of the people who had knowledge between Russians and the campaign.

The investigation is ongoing and includes pursuing leads from information provided by and related to the defendant regarding communications he had, inter alia, with certain other individuals associated with the campaign. The government will very shortly seek, among other investigative steps, to interview certain individuals who may have knowledge of contacts between Russian nationals (or Russia-connected foreign nationals) and the campaign, including the contacts between the defendant and foreign nationals set forth in the Statement of Offense incorporated into the defendants plea agreement.

All the people interviewed in what I’ll call the Papadopoulos lag — the time between when he pled guilty and the time they unsealed his plea — likely operated with the false confidence that the Mueller team would not know of conversations among campaign staffers. It appears that Page (like Sam Clovis, and, probably,JD Gordon) was interviewed in that period.

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.

Devin Nunes Commits “Felonious Leaking”

As I laid out here, Trey Gowdy spent much of Monday’s Russia hearing talking about how, if someone reveals details of FISA collection, that person has violated sacred trust and also committed felonious leaking. House Intelligence Chair Devin Nunes was present for some, if not all of Gowdy’s tirade.

Yet that didn’t stop Nunes from engaging in precisely the kind of felonious leaking that Gowdy claims violates that sacred trust. At a press conference today, Nunes gave the following statement:

At our open hearing on Monday, I encouraged anyone who has information about relevant topics—including surveillance on President-elect Trump or his transition team—to come forward and speak to the House Intelligence Committee. I also said that, while there was not a physical wiretap of Trump Tower, I was concerned that other surveillance activities were used against President Trump and his associates.

  • I recently confirmed that, on numerous occasions, the Intelligence Community incidentally collected information about U.S. citizens involved in the Trump transition.
  • Details about U.S. persons associated with the incoming administration—details with little or no apparent foreign intelligence value—were widely disseminated in intelligence community reporting.
  • I have confirmed that additional names of Trump transition team members were unmasked.
  • To be clear, none of this surveillance was related to Russia or any investigation of Russian activities or of the Trump team.

The House Intelligence Committee will thoroughly investigate this surveillance and its subsequent dissemination to determine:

  • Who was aware of it
  • Why it was not disclosed to Congress
  • Who requested and authorized the additional unmasking
  • Whether anyone directed the intelligence community to focus on Trump associates; and
  • Whether any laws, regulations, or procedures were violated

I’ve asked the Directors of the FBI, NSA, and CIA to expeditiously comply with my March 15 letter, and to provide a full account of these surveillance activities. I informed Speaker Ryan this morning of this new information, and I will be going to the White House this afternoon to share what I know with the President.

Nunes went on to say this was normal incidental collection, possibly including Trump’s communications. He said it was all obtained legally. He said the communications were collected in November, December, and January. He stated he was unsure whether these were wiretapped phone calls, or something else. He wondered why the identities of Trump people were unmasked (though his later statements suggested it may have been circulated in raw form) and said “it bothers me that that would have any foreign intelligence value whatsoever.”

Nunes said he saw dozens of reports and that the information he saw has nothing to do with Russia or the Russia investigation, or any discussions with Russians.

Nunes then said he was headed to the White House to tell Trump which, if there is any legal interest in any of these intercepts (as there might be if they pertained to Mike Flynn’s communications with Turkey, for example), then Nunes just committed obstruction of justice.

“It’s all classified information,” Nunes explained.

And Nunes so lacks any self-awareness, he seemed completely oblivious to the ways he had violated everything the Republicans were wailing about on Monday.

The presser ended with this exchange, which may totally upend the debate over Section 702 reauthorization this year:

Reporter 1: Do you think right now the NSA — or a member of the intelligence community — was spying on Trump during the transition period?

Nunes: Well, I guess it all  depends on one’s definition of spying. Clearly it bothers me enough, I’m not comfortable with it.

Reporter 2: But you think he might have been spied on?

Nunes: I’m not going to get into legal definitions here, but clearly I have a concern.

 

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.