Several months before Ali Watkins (followed by ABC, though that didn’t stop ABC from claiming credit) confirmed that a person named in the complaint against Evgeny Buryakov is Carter Page, Rayne was examining potential connections between that case — in which Buryakov eventually plead guilty to being a Russian spy (after his two colleagues, working under official cover, had returned to Russia) and allegations of Russian influence on Donald Trump.

While many people are insinuating that this confirmation damns Page, that’s not at all clear.

As the complaint — which was unsealed on January 26, 2015 — describes, Victor Podobnyy tried to recruit Page in the period leading up to April 2013. Podobnyy complained that Page left on a trip to Moscow without returning his call. In that complaint, Podobnyy emphasized Page’s interest in getting Gazprom business.

[Page] wrote that he is sorry, he went to Moscow and forgot to check his inbox, but he wants to meet when he gets back. I think he is an idiot and forgot who I am. Plus he writes to be in Russian [to] practice the language. He flies to Moscow more often than I do. He got hooked on Gazprom thinking that if they have a project, he could rise up. Maybe he can. I don’t know, but it’s obvious that he wants to earn lots of money.

Podobnyy then jokes with fellow spy Igor Sporyshev about (presumably) Russia blowing “a couple of borrowed million” before screwing Page over.

Podobnyy: I also promised him a lot; that I have connections in the Trade Representation, meaning you[,] that you can push contracts [laughs]. I will feed him empty promises.

Sporyshev: Shit, then he will write me. Not even me, to our clean one.

Podobnyy: I didn’t say the Trade Representation… I didn’t even indicate that this is connected to a government agency. This is intelligence method to cheat, how else to work with foreigners? You promise a favor for a favor. You get the documents from him and tell him to go fuck himself.

The complaint then describes a June 13, 2013 FBI interview with Page in which Page describes meeting Podobnyy at an energy symposium. Page told the FBI agents he shared his outlook on the current and future of the energy industry and provided documents to him about the energy business. That is consistent with Podobnyy’s mocking description of their relationship.

Again, all of that occurred in 2013, and it was made public in early 2015. Page even complained to BuzzFeed that the complaint had made it obvious (back in 2015) that he was the one the Russian spies were recruiting and mocking.

Page suggested that the complaint was written so that it was obvious he was the Gazprom-connected man Podobnyy talked about recruiting.

“In this city? Give me a break,” he said. “It is so obvious.”

Which is all a way of saying that Page knew that he had been recruited by Russian spies in 2013 and knew how they were trying to recruit him before he went to Russia and allegedly met with Rosneft President Igor Sechin. Here’s how Christopher Steele’s dossier described the July 7 or 8, 2016 meeting between Page and Sechin:

[T]he Rosneft President (CEO) had raised with PAGE the issues of future bilateral energy cooperation and prospects for an associated move to lift Ukraine-related western sanctions against Russia. PAGE had reacted positively to this demarche by SECHIN but had been generally not-committal in response. [Report dated July 19, 2016, sourced to a Russian source close to Sechin]

[snip]

[T]he Roseneft President was so keen to lift personal and corporate western sanctions imposed on the company, that he offered PAGE/TRUMP’s associates the brokerage of up to a 19 per cent (privatised) stake in Rosneft in return. PAGE had expressed interest and confirmed that were TRUMP elected US president, then sanctions on Russia would be lifted. [Report dated October 18, 2016, sourced to a close associate of Sechin ]

Importantly, Steele’s sources reported that Russia was dangling the same thing that showed up in Page’s 2013 conversations with Podobnyy: business with Rosneft. That could either be taken as a sign the Russian integrated information they learned in 2013 — that Page wanted to get rich working with Rosneft (which would have been obvious anyway). Or it could be taken as a sign that they dangled something that Page would have known the Russians were already talking to him about.

Note that the two reports on his meeting with Sechin conflict on one key detail: whether Page took the bait. The first report (at a time when Steele was not as urgently trying to ensure Trump would lose the election) stated that Page was non-committal. Having a huge deal of the sort he had been pursuing for three years dangled before him, Page did not immediately jump. The later report, however, did seem to promise a quid pro quo dealing precisely the same thing he had got caught talking to Russians about three years earlier.

Now consider the other allegation about Page from the dossier. It claims that a senior colleague in the Presidential Administration Head, Divyekin, dangled something else: kompromat on Hillary (as I explained here, in context this is just about intelligence gathered while she was First Lady and Secretary of State, even though this report was written a year after FSB started hacking the DNC, four months after GRU allegedly started hacking the DNC and John Podesta, and more than a month after the former two things were public). But even here, this is a dangle.

Their agenda had included DIVEYKIN raising a dossier of ‘kompromat’ the Kremlin possessed on TRUMP’s Democratic presidential rival, Hillary CLINTON, and its possible release to the Republican’s campaign team.

However, the Kremlin official close to S. IVANOV added that s/he believed DIVEYKIN also had hinted (or indicated more strongly) that the Russian leadership also had ‘kompromat’ on TRUMP which the latter should bear in mind in his dealings with them.

In the context of having had another Russian spy explicitly state he would dangle promises but not deliver, it’s unclear how Page would take this information. But he would presumably at least consider what he had learned in 2013 about dealing with Russian spies, which is that they might not deliver on their promises.

Page strikes me as a dummy. So maybe he didn’t learn anything from being targeted in 2013. Or maybe the inconclusive language relayed here, even if true (Page still denies the Sechin meeting) can be explained by the fact that Page had already been recruited at least once by a Russian spy, with the embarrassing result that (he believed) everyone in NY knew he had been taken for a chump in 2013.

But there are two other parts of the complaint that — given what we’ve learned since Rayne wrote about this — deserve new scrutiny.

First, in a discussion on April 10, 2013, Podobnyy had a discussion with his boss at SVR. The boss asked Podobyy what Sporyshev’s cover was. “What is his cover? The Chamber of Commerce?” Podobnyy corrected him, explaining that Sporyshev worked as a Trade Representative.

The exchange is interesting because one of the people believed to be a key figure in the Steele dossier, described as Source D in parts of the dossier, founded a Russian American Chamber of Commerce in 2006. The figure, Sergei Millian, has insinuated himself into Trump’s circle since that time, including posting pictures of himself on inauguration day. It seems as if Podobnyy’s boss knew of someone who was working under the cover of some kind of Chamber of Commerce. There are two other “Chambers” he might have been thinking of — the US-Russian Chamber of Commerce, and the Chamber of Commerce and Industry of the Russian Federation. But Millian’s organization certainly looks like a cover, and the reference of a an SVR manager to a Chamber used as cover could back that claim.

Finally, there’s the point Rayne raised in her post. Buryakov’s cover was working at Vnesheconombank, the same bank whose FSB-tied head Jared Kushner met with in December. The key to busting Buryakov was an undercover FBI employee pretending to represent the interests of a “wealthy investor looking to work with [Vnesheconombank] to develop casinos in Russia.” As Rayne noted, Buryakov and the UCE toured some Atlantic City casinos at a time when Trump still had some there. And while Trump may not be the only wealthy casino owner considering business opportunities in Russia in 2013, he definitely was doing so (recall that the Golden Shower incident allegedly happened in 2013, so before the casino meetings).

The reason all that is interesting is because of the claimed ties between Trump associates like Felix Sater and the FBI. While Sater has served as an informant, not an FBI employee (and Sater’s informant role was already public by 2013, meaning the Russians would be unlikely to treat him as a real entrée to reach Trump), there’s still other reasons to think Trump might have been the purported investor used to set up Buryakov (which, again, was Rayne’s point).

In any case, we know that a figure that ended up in Trump’s inner circle was recruited as early as 2013 for information. That doesn’t necessarily mean subsequent attempts, such as they occurred, would be more or less successful (indeed, if Page weren’t such a dummy you’d figure they’d be less successful, if only because Page had already had to deal with the FBI over his Russian ties). But it does raise interesting questions about that network of spies and any subsequent efforts to reach out to Trump’s associates.

Throughout his ongoing information operation to claim the Obama White House spied on the Trump transition team, Devin Nunes has pointed to what he claimed was a precedent: when, in December 2015, members of Congress suddenly copped on that their conversations with Bibi Netanyahu would get picked up incidentally. In his March 22 press conference, he explained,

We went through this about a year and a half ago as it related to members of Congress, if you may remember there was a report I think it was in the Wall Street Journal and but then we had to have we had a whole series of hearings and then we had to have changes made to how Congress is informed if members of Congress are picked up in surveillance and this looks it’s like very similar to that.

Eli Lake dutifully repeated it in the second of his three-post series pitching Nunes’ information operation.

A precedent to what may have happened with the Trump transition involved the monitoring of Israel’s prime minister and other senior Israeli officials. The Wall Street Journal reported at the end of 2015 that members of Congress and American Jewish groups were caught up in this surveillance and that the reports were sent to the White House. This occurred during a bitter political fight over the Iran nuclear deal. In essence the Obama White House was learning about the strategy of its domestic political opposition through legal wiretaps of a foreign head of state and his aides.

But Lake didn’t apparently think through what the implications of Nunes’ analogy — or the differences between the two cases.

Here’s the WSJ report and CBS and WaPo versions that aren’t paywalled. All make it very clear that Devin Nunes took the lead in worrying about his conversations with Bibi Netanyahu being sucked up (I don’t remember Republicans being as sympathetic when Jane Harman got sucked up in a conversation with AIPAC). They also describe that Obama’s WH, faced with the potential that their surveillance would be seen as spying on another branch of Congress, had the NSA take charge of the unmasking.

The administration believed that Israel had leaked information gleaned from spying on the negotiations to sympathetic lawmakers and Jewish American groups seeking to undermine the talks.

According to the Journal, when the White House learned that the NSA eavesdropping had collected communications with U.S. lawmakers, it feared being accused of spying on Congress and left it to the NSA to determine what information to share with the administration. The Journal said the NSA did not pass along the names of lawmakers or any of their personal attacks on White House officials.

That’s not to say they’d take the same approach here — indeed, Lake now claims, at  least, that Susan Rice requested some Trump officials’ names to be unmasked, distinguishing it from the Bibi case in that White House did not leave it up to NSA to decide what to unmask (though the underlying reporting makes the silly claim that Rice, Loretta Lynch, and John Brennan were among a very limited number of people who could request a name be unmasked).

The larger point is, even assuming the collection of conversations between your political opponents and a foreign government designed to undermine your executive branch authority was scandalous, it’d still fall under the very legitimate concern of separation of powers.

Yes, Trump’s aides are from a different party. But they are nevertheless part of the executive branch. And the entire basis of counterintelligence spying — the entire point of FISA — is to ensure that executive branch officials are not targeted by foreign countries to be spies, which is part of the reason Mike Flynn attracted attention (which is not to justify the leaking of that intercept). Add in the legitimate necessity to implement executive branch policy and this is a very different case than the Bibi case, even if you want to defend (as I do, to a point) Republican members of Congress collaborating with foreign governments to undermine Article II authorities.

Nunes’ imagined solution — from his March 22 White House press conference — is ever nuttier.

Q: You’ve said legal and incidental. That doesn’t sound like a proactive effort to spy.

Nunes: I would refer you to, we had a similar issue with members of Congress that were being picked up in incidental collection a little over a year ago, we had to spend a full year working with the DNI on the proper notification for members of Congress to be notified which comes through the Gang of Eight. I would refer you to that because it looks very similar to that, would be the best way I can describe it.

The ODNI current informs the Gang of Eight when members of Congress get spied on (which means claims that a lot of GOP candidates got spied on is likely hot air, but which also means that if Nunes were collected as a member of the transition team, he’d have been the first to learn of it). Which is an important protection for separation of powers, but which also enables corrupt members of Congress to not just learn they’re being surveilled but, potentially, to alert the foreign targets what channels we’re using.

Maybe Trump wants that standard applied to the executive branch, but if he adopts it, we’re going to have a leaking free for all. Not to mention, it would make it absolutely impossible for the government to protect against espionage related to elections.

Or perhaps Nunes is just saying something more simple. Perhaps Nunes is saying the “dozens” of intercepts where Trump officials had been unmasked (to the extent that’s true) disclosed Trump’s transition-period attempts to drum up a war with Iran at the behest of Israel. Perhaps the real stink here is that, in the very same days Mike Flynn was telling Russia sanctions would be loosened, Trump was publicly undermining US efforts to take a stand against Israeli illegal settlements.

Perhaps, ultimately, this is still about a belief that the Israelis should never be wiretapped.

In the original version of the latest right wing claim — that Susan Rice requested that multiple incoming Trump figures’ names be unmasked in intercepts — Mike Cernovich describes the genesis of Devin Nunes’ concern this way:

The White House Counsel’s office identified Rice as the person responsible for the unmasking after examining Rice’s document log requests. The reports Rice requested to see are kept under tightly-controlled conditions. Each person must log her name before being granted access to them.

Upon learning of Rice’s actions, H. R. McMaster dispatched his close aide Derek Harvey to Capitol Hill to brief Chairman Nunes.

But as Eli Lake — fresh off having apologized for letting Devin Nunes use him — tells the story, close Mike Flynn associate Ezra Cohen-Watnick discovered it and brought the discovery to the White House Counsel’s office, whereupon he was told to “end his own research” on unmasking.

The pattern of Rice’s requests was discovered in a National Security Council review of the government’s policy on “unmasking” the identities of individuals in the U.S. who are not targets of electronic eavesdropping, but whose communications are collected incidentally. Normally those names are redacted from summaries of monitored conversations and appear in reports as something like “U.S. Person One.”

The National Security Council’s senior director for intelligence, Ezra Cohen-Watnick, was conducting the review, according to two U.S. officials who spoke with Bloomberg View on the condition of anonymity because they were not authorized to discuss it publicly. In February Cohen-Watnick discovered Rice’s multiple requests to unmask U.S. persons in intelligence reports that related to Trump transition activities. He brought this to the attention of the White House General Counsel’s office, who reviewed more of Rice’s requests and instructed him to end his own research into the unmasking policy.

This repeats a claim Lake had made in his earlier apology post, which he presented as one detail in the NYT version of this story that was not accurate.

Another U.S. official familiar with the affair told me that one of the sources named in the article, former Defense Intelligence officer Ezra Cohen-Watnick, did not play a role in getting information to Nunes. This official said Cohen-Watnick had come upon the reports while working on a review of recent Justice Department rules that made it easier for intelligence officials to share the identities of U.S. persons swept up in surveillance. He turned them over to White House lawyers.

But it adds the detail that Cohen-Watnick had been told to stand down. That would explain why Lake and others would want to claim that Cohen-Watnick wasn’t involved in dealing all this to Nunes: because he had already been told not to pursue it further. If the multiple accounts saying he was involved in the hand-off to Nunes, it appears he did.

The WaPo’s version of this included a detail not included by the right wingers: that Cohen-Watnick went to John Eisenberg, not Don McGahn, with his “discovery.” Eisenberg is significantly responsible, dating back to when he was at DOJ, for ensuring that ordinary Americans would be sucked up in surveillance under PRISM. For him to be concerned about the legal unmasking of Americans’ identities (to the extent that did exist — and the record is still unclear whether it did) is laughable.

The timing of Cohen-Watnick’s research — dating back to February — intersects in interesting ways with the timeline in this March 14 Politico story of H.R. McMaster’s attempt to sideline him, which was overruled by Steven Bannon.

On Friday [March 10], McMaster told the National Security Council’s senior director for intelligence programs, Ezra Cohen-Watnick, that he would be moved to another position in the organization.

The conversation followed weeks of pressure from career officials at the CIA who had expressed reservations about the 30-year-old intelligence operative and pushed for his ouster.

But Cohen-Watnick appealed McMaster’s decision to two influential allies with whom he had forged a relationship while working on Trump’s transition team — White House advisers Steve Bannon and Jared Kushner. They brought the matter to Trump on Sunday [March 12], and the president agreed that Cohen-Watnick should remain as the NSC’s intelligence director, according to two people with knowledge of the episode.

The House Intelligence Committee first asked NSA, CIA, and FBI for details on unmasking on March 15, the day after this story broke, at which point Nunes already knew of the White House effort. When Nunes first blew this up on March 22, he falsely claimed that that March 15 request had been submitted two weeks earlier.

It’s clear the right wing wants to shift this into Benghazi 2.0, attacking Susan Rice for activities that are, at least on the face of it, part of her job. But the only way the White House could be sure that she (or Ben Rhodes, who they’re also naming) were the ones to leak this would be to investigate not just those two, but also all the FBI (which would have access to this information without unmasking these names, which not a single one of these right wing scribes admit or even seem to understand). That is, the only way they could make credible, as opposed to regurgitated right wing propaganda accusations about leakers is to have spied even more inappropriately than they are accusing the Obama White House of doing.

Multiple people,including Bart Gellman and Josh Marshall, are now arguing that the reason Ezra Cohen-Watnick and Michael Ellis found intercepts involving Trump’s people is that they were monitoring FBI’s investigation of the investigation.

I certainly think the Trump people would like to do that — and would be willing to stoop to that. I even believe that the response to the Russian hack last year had some counterintelligence problems, though probably not on the FBI side.

But there are some details that may limit how much the NSC can monitor the investigation.

First, Devin Nunes has always been very clear: the intercepts he was shown have nothing to do with Russia. That’s not, itself, determinative. After all, Cohen-Watnick and Ellis might have found a bunch of Russian intercepts, but only shared the non-Russian ones so Nunes could make a stink without being accused of endangering the investigation. Also, it’s possible that intercepts involving other countries — most notably Turkey, but there are other countries that might be even more interesting, including Ukraine or Syria — would impact any Russian investigation.

Also note that among the many things Nunes appears not to understand about surveillance is that there are two ways an American’s name can be visible outside the circle of analysts doing the initial review of them: their names can be put into finished intelligence reports that get circulated more broadly, with customers asking to have the name unmasked after the fact. Alternately, their names can be found off of subsequent searches of raw data. At the NSA and CIA, searches for US person content are somewhat controlled. At FBI they are not only not controlled, but they are routine even for criminal investigations. So if, say, General Flynn (or Paul Manafort) were under investigation for failing to register as a foreign agent, the FBI would routinely search their database of raw FISA material on his name. (These are the “back door searches” Ron Wyden has been screaming about for years, concerns which people like Devin Nunes have previously dismissed on national security grounds.) And we have every reason to believe that counterintelligence intercepts of Russians in the US are among the raw feeds that the FBI gets. So if Flynn had conversations with Russians (or Turks) in the US, we should assume that FBI saw them as a routine matter if Flynn became the subject of an investigation at all. We should also assume that the FBI did a search on every Sergey Kislyak intercept in their possession, so they will have read everything that got picked up, including all recorded calls with Trump aides.

On March 15, the House Intelligence Committee asked the NSA, CIA, and FBI for information on unmasking. I don’t believe that request asked about access to US person names on subsequent searches or raw material. Furthermore, at least as of last week, the FBI was not rushing to comply with that request. As I noted after the Jim Comey hearing before HPSCI, none of the Republicans concerned about these issues seemed to have any basic clue about FBI’s searches on raw data. If Nunes doesn’t know (and he appears not to), it’s unlikely Ellis knows, who was until this month Nunes’ aide.

But there’s one other thing that may prevent NSC from obtaining information about the investigation: FBI sometimes uses what are called “ad hoc databases” that include raw FISA data (and probably, post EO 12333 sharing rule changes, raw EO 12333 data) tied to particular investigations. It’s unclear what conditions might necessitate the use of an ad hoc database (see page 25ff for a discussion of them), but if security concerns would encourage their use, it would be likely to have one here, an investigation which Comey described as being so sensitive he delayed briefing the Gang of Four. Ad hoc databases are restricted to those working on investigations, and include specific records of those authorized to access the database. So if FBI were using an ad hoc database for this investigation, it would be even harder for the NSC to learn what they were looking at.

If the FBI’s investigation relies on raw intelligence — and it would be unfathomable that it does not, because it would probably receive the raw FISA data tied to such an investigation routinely, and EO 12333 sharing rules specifically envision the sharing of raw data associated with counterintelligence investigations — then the NSC’s access to finished intelligence reports would provide little insight into the investigation (Nunes was a bit unclear on whether that’s what he was looking at, but the entire premise of his complaints is that these were finished reports).

But while we’re worrying about whether and how Trump would monitor an investigation into his aides, remember that in 2002, Jay Bybee wrote a memo authorizing the sharing of grand jury information with the President and his close advisors including for counterintelligence investigations.

In addition, the Patriot Act recently amended 6(e) and Title III specifically to provide that matters involving foreign intelligence or counterintelligence or foreign intelligence information may be disclosed by any attorney for the government (and in the case of Title III, also by an investigative or law enforcement officer) to certain federal officials in order to assist those officials in carrying out their duties. Federal officials who are included within these provisions may include, for example, the President, attorneys within the White House Counsel’s Office, the President’s Chief of Staff, the National Security Advisor, and officials within the Central Intelligence Agency and the Department of Defense.

[snip]

Although the new provision in Rule 6(e) permitting disclosure also requires that any disclosures be reported to the district court responsible for supervising the grand jury, we conclude that disclosures made to the President fall outside the scope of the reporting requirement contained in that amendment, as do related subsequent disclosures made to other officials on the President’s behalf.

In other words, Trump could demand that he — or his National Security Advisor! — get information on any grand jury investigations, including those covering counterintelligence cases. And no judge would be given notice of that.

With Jeff Sessions’ recusal, that’s far less likely to happen than it might have been. But understand that the Executive Branch believes that the President can learn about the happenings in grand jury investigations of the sort that might target his aides.

Update: additional details have been added to this post after it was first posted.

I believe that Devin Nunes is a buffoon and a political hack. I believe he needs to be removed from his position as Chair of the House Intelligence Committee — not just because he has been running interference for Trump, betraying his Article I duties, but also because he doesn’t understand the programs he oversees.

But I don’t believe he’s a criminal.

I say that in disagreement with Bart Gellman, who made just such an argument regarding the revelations in this NYT story here. Gellman argued, in part, that Nunes’ sources (about which I hope to say more later) violated nondisclosure laws by sharing reports outside of normal channels with Nunes.

Secrecy regulations, including SF312, the Classified Information Nondisclosure Agreement, do not permit [Michael] Ellis and [Ezra] Cohen-Watnick to distribute sensitive compartmented information through a back channel to Nunes. This is true, and their conduct no less an offense, even though Nunes holds clearances sufficient to receive the information through proper channels. The offense, which in some cases can be prosecuted as a felony, would apply even if the White House officials showed Nunes only “tearsheet” summaries of the surveillance reports. Based on what Nunes has said in public, they appear to have showed him the more sensitive verbatim transcripts. Those are always classified as TS/SI (special intelligence) or TS/COMINT (communications intelligence), which means that they could reveal sources and methods if disclosed. That is the first apparent breach of secrecy rules. The second, of course, is the impromptu Nunes news conference. There is no unclassified way to speak in public about the identity of a target or an “incidentally collected” communicant in a surveillance operation.

To be clear, I think Ellis and Cohen-Watnick may have violated access rules on searches. But I don’t think Nunes violated any laws in accessing that intelligence (I think he probably violated the intent of classification rules on intercepts, but by providing no details about who he saw referenced in these reports, he’ll get away with it.)

That’s because minimization procedures pertaining to FISA materials specifically envision access to information — sometimes even raw data — for oversight purposes. The 2015 702 Minimization Procedures for NSA, for example, state,

Nothing in these procedures shall restrict NSA’s performance of lawful oversight of its personnel or systems, or lawful oversight function of the Department of Justice’s National Security Division, Office of the Director of National Intelligence, or the applicable Offices of the Inspectors General. Similarly, nothing in these procedures shall prohibit the retention, processing, or dissemination of information reasonably necessary to comply with specific constitutional, judicial,or legislative mandates.

At times, minimization procedures have been even more explicit. Starting in 2014, for example, the Section 215 phone dragnet minimization procedures explicitly permitted the sharing of query results “to facilitate lawful oversight functions.”

Notwithstanding the above requirements, NSA may share results from intelligence analysis queries of the BR metadata, including U.S. person identifying information, with Executive Branch personnel (1) in order to enable them to determine whether the information contains exculpatory or impeachment information or is otherwise discoverable in legal proceedings or (2) to facilitate their lawful oversight functions. Notwithstanding the above requirements, NSA may share the results from intelligence analysis queries of the BR metadata, including United States person information, with Legislative Branch personnel to facilitate lawful oversight functions.

The FISC even excluded such sharing from reporting requirements, so Congress could be doing a lot of this and it would never show up in annual reporting.

In other words, at least for FISA-governed data, the court has permitted the sharing of information — and remember, these are supposed to be finished intelligence reports, not raw data or queries — for people in an oversight role. The 702 procedures leave a lot of room for interpretation, too, about what might be a “constitutional” mandate, the kind of language that White Houses of both parties have been prone to abuse.

If these reports were collected under 12333, the new sharing rules explicitly prohibit the sharing of intelligence for political purposes.

Any IC element that obtains access to raw SIGINT under these Procedures will:

[snip]

Political process in the United States. Not engage in any intelligence activity authorized by these Procedures, including disseminations to the White House, for the purpose of affecting the political process in the United States. The IC element will comply with the guidance applicable to NSA regarding the application of this prohibition. Questions about whether a particular activity falls within this prohibition will be resolved in consultation with the element’s legal counsel and the General Counsel of the Office of the Director of National Intelligence (ODNI) (and the DoD’s Office of the General Counsel in the case of a DoD IC element).

Even if this covered what happened, NSC lawyer John Eisenberg was in the loop on this caper, so they effectively did consult with the element’s legal counsel. Moreover, we know that Presidents can pixie dust executive orders at will.

Nunes, at least, pretends he was functioning in an oversight role in raising questions about whether SIGINT had been properly minimized. He appears to have no clue about the authorities he’s talking about, he appears to have misrepresented what the problem is, and he clearly was doing all this with an eye towards making political accusations against Obama.

But nevertheless, he claims to believe he was functioning in an oversight role.

Which is part of the problem! I’ve long pointed to how unrestricted this language is. It invites abuse. It should be tightened going forward (though neither the Trump Administration nor Congress has incentive to do that at this point).

If you’re bothered by Devin Nunes’ information operation — and I am — then you should be calling to tighten up the language governing how intelligence can be shared for oversight and other “constitutional” purposes. Because they appear to envision something like this happening.

Paul Wood is the BBC reporter who, in a January story focusing largely on MI6 officer Christopher Steele’s dossier, repeated the Louise Mensch report that the government had obtained a FISA order targeting two Russian banks.

On 15 October, the US secret intelligence court issued a warrant to investigate two Russian banks. This news was given to me by several sources and corroborated by someone I will identify only as a senior member of the US intelligence community. He would never volunteer anything – giving up classified information would be illegal – but he would confirm or deny what I had heard from other sources.

Last night he posted another story, confirming that one of the figures described in Steele’s dossier as having been withdrawn from DC because of his close ties to the election operation, Mikhail Kalugin, was indeed a Russian spy operating under diplomatic cover.

[S]ources I know and trust have told me the US government identified Kalugin as a spy while he was still at the embassy.

[snip]

A retired member of a US intelligence agency told me that Kalugin was being kept under surveillance before he left the US.

But I’m more interested in the vague details Wood offers about Steele’s past cooperation — and how he pitches a claim that the FBI is screwing up the investigation.

Remember: the public story is that only the FBI had any contact with Steele. But the first time this article describes him sharing information he collected for other sources with US intelligence agencies, it doesn’t specify that.

I understand – from former officials – that from 2013-16, Steele gave the US government extensive information on Russia and Ukraine.

This was work done for private clients, but which Steele wanted the US authorities to see.

One former senior official who saw these reports told me: “It was found to be of value by the people whose job it was to look at Russia every day.

Indeed, the article distinguishes between what those agencies believed about Steele from what the FBI did.

In light of his earlier work, the US intelligence community saw him as “credible” (their highest praise).

The FBI thought the same; they had worked with Steele going back to his days in MI6.

The article goes on to complain that Steele never briefed the CIA on the dossier, which it explains by saying his Russian related contacts had moved on.

But the CIA never interviewed him, and never sought to.

This comes from several people who are in a position to know.

[snip]

I understand that Steele himself did not ask to brief the CIA because he had a long-standing relationship with the FBI.

The Russia people at the CIA had moved on and he felt he did not have the personal contacts he would need.

As a reminder, the Intelligence Community offered completely ridiculous explanations for when it first obtained the dossier, which were implausible, even ignoring the way they pretended FBI wasn’t part of the IC.

In any case, having laid out these distinctions, the article then voices the complaints of those who believe the FBI is screwing the investigation up, and that only CIA has the contacts to conduct it.

This comes from several people who are in a position to know.

They are alarmed at how the investigation is going, and worry it is being fumbled.

One said: “The FBI doesn’t know about Russia, the CIA knows about Russia.

“Any sources Steele has in Russia, the FBI doesn’t know how to evaluate.

“The Agency does… Who’s running this thing from Moscow? The FBI just aren’t capable on that side, of even understanding what Chris has.”

The article cites one reason this complaint is bogus — the CIA, along with other agencies, are part of the task force investigating this case. It doesn’t explain why the theory voiced by its sources — that the Russians would need to steal voter roll data from states (or even cooperate with Trump) to micro-target messages. Voter rolls are readily available. And while cooperating with Trump’s campaign would make micro-targeting more effective, it would not be necessary for a knowledgable person.

In any case, these complaints sound like the excuses given for why Steele did not, ultimately, take payment from FBI (which I discussed here), with one difference. It wasn’t just that Steele thought the FBI was paying too much attention on Hillary’s email campaign, but he thought publicizing his dossier would make the difference in the election.

“He really thought that what he had would sway the election,” said one.

That claim, with questions introduced by this article about which agencies he has worked with, is rather interesting.

One final point. After the article got posted, the Beeb took out a critical line (highlighted below) claiming that Steele didn’t share his dossier with reporters himself, but instead did so through his employer.

That doesn’t make sense for a lot of reasons — and is belied by David Corn’s account of what happened. But I find it particularly interesting given the fact that — after Chuck Grassley first asked the FBI to provide information on the dossier — Grassley has since asked the consulting firm questions that would provide a way to double check the FBI’s claims. Fusion’s answers, which are due by April 7, might present problems for this claim, which has since disappeared. Poof!

Among the things Richard Burr suggested yesterday is that the committee may not succeed in getting Steele to testify (suggesting that being outside the country put him beyond subpoena). Given the airing of complaints from Steele and his friends here, I really look forward to seeing whether he cooperates with SSCI.

Richard Burr and Mark Warner had a press conference today to — basically — reassure people that at least one intelligence committee is made up of grown-ups who will be able to conduct an investigation of Russia’s attempts to interfere with the election. Among other things, Burr said the committee has a list of about 20 people with whom they’re in the process of setting up interviews, about five of which have been scheduled, to start Monday.

Amid repeated discussions about leaks, Burr confirmed — as the NYT already has — that the Committee wants to meet with Jared Kushner. The NYT story about Kushner was clearly first informed by Senate Intelligence Committee personnel that SSCI wanted to talk to him, and then got Hope Hicks to confirm it publicly. Of particularly interest (because Burr is very strict that committee business remain secret), the NYT SSCI source asked for anonymity to remain candid about Kushner, not because he or she was not permitted to talk with the press.

The Senate panel’s decision to question Mr. Kushner would make him the closest person to the president to be called upon in any of the investigations, and the only one currently serving in the White House. The officials who initially described that Senate inquiry to The New York Times did so on the condition of anonymity in order to speak candidly about Mr. Trump’s son-in-law.

Later the NYT story cotes a statement from Burr and Mark Warner, confirming (as Burr did in the hearing) that they will speak with Kushner.

In today’s hearing, having confirmed again the detail about Kushner, however, Burr took a different approach in response to a question about Mike Flynn.

Q: Have you guys been in contact with Michael Flynn or representatives of Michael Flynn? Also, can you go into a little bit of the thought process between why you would have an interview behind closed doors or do it publicly, like why you would talk to Jared Kushner behind closed doors, why you would do it publicly?

Burr: Well, I think it’s safe to say that we have had conversations with a lot of people. And you would think less of us if General Flynn wasn’t in that list. From a standpoint of the interview process if you feel like you’re being cheated, because they’re not in public, if there’s relevance to em they’ll eventually be part of a public hearing.

[Burr goes on to discuss the committee doing private interviews first.]

Q: Have you already spoken with Flynn? Have you already spoken with Flynn?

Burr: I’m not gonna tell you one way or another.

Effectively, he confirms that Flynn will be asked to talk to the committee. But when asked (I think my transcription of this is correct but welcome corrections on this point) if he — or the committee — had already spoken with Flynn, he refused to provide the same kind of confirmation he did with Kushner, and particularly to say whether he or the committee had already spoken with him.

I raise this for several reasons. Obviously, the double standard — and Burr’s willingness to deviate from his strict committee business secrecy pledge with regards to Kushner — is notable. The possibility that he or the committee may have already spoken with Flynn is particularly interesting.

In my post on the Kushner story, I noted that the Kushner story for the first time got into the quid pro quo the Russians were really interested in — not a change in policy towards Ukraine, but rather, an end to the sanctions targeting Russia for its annexation of Ukraine. I actually missed one of the most important parts of that story, however. On December 29, the FSB-trained head of a sanctioned who met with Kushner at the request of Sergey Kislyak, Sergey Gorkov, stated that he thought Ukrainian-related sanctions might “change for the better.”

And in an interview on the state-owned Rossiya 24 TV channel on Dec. 29, the same month that he met with Mr. Kushner, Mr. Gorkov said he hoped that the situation caused by Ukraine sanctions imposed by the Americans against Russian banks like his “would change for the better.”

As I noted in my post, the possibility that Gorkov had discussed Ukraine sanctions directly with Kushner would change the connotation of the discussions between Flynn and Kislyak.

And those conversations were on December 29.

In other words, on the very same day that Kislyak and Flynn were having multiple phone calls — and discussed sanctions in vague terms — Gorkov was publicly discussing the Ukraine, not the hacking related, sanctions.

Again, Burr is happy to confirm the committee will call Kushner. He’s not going to say whether the committee has already spoken with Flynn, who would know better about the connotation of sanctions as discussed on December 29.

And SSCI likely has already read the conversations between Kislyak and Gorkov surrounding his meetings with the President’s son-in-law.

The WaPo has another big story, this one reporting that the Trump Administration attempted to prevent Sally Yates from testifying about her warnings to the Trump Administration that Mike Flynn had had conversations about sanctions with Russian Ambassador Sergey Kislyak.

Scott Schools, another Justice Department official, replied in a letter the following day, saying the conversations with the White House “are likely covered by the presidential communications privilege and possibly the deliberative process privilege. The president owns those privileges. Therefore, to the extent Ms. Yates needs consent to disclose the details of those communications to [the intelligence panel], she needs to consult with the White House. She need not obtain separate consent from the department.’’

Yates’s attorney then sent a letter Friday to McGahn, the White House lawyer, saying that any claim of privilege “has been waived as a result of the multiple public comments of current senior White House officials describing the January 2017 communications. Nevertheless, I am advising the White House of Ms. Yates’ intention to provide information.’’

That same day, Nunes, the panel’s chairman, said he would not go forward with the public hearing that was to feature Yates’s testimony.

In response to the story, Adam Schiff suggested Yates might have testified about why Trump waited before firing Flynn.

[W]e would urge that the open hearing be rescheduled without further delay and that Ms. Yates be permitted to testify freely and openly so that the public may understand, among other matters, when the President was informed that his national security advisor had misled the Vice President and through him, the country, and why the President waited as long as he did to fire Mr. Flynn.

According to the WaPo, Yates informed Don McGahn that Flynn was lying about his calls, making him susceptible to blackmail, on January 26. She was fired on January 31. Flynn tried to lie about the conversation again on February 8. Then, as the WaPo was reporting this story, he altered his story. Nevertheless, it wasn’t until the WaPo reported on Yates’ warning, on February 13, that Trump forced Flynn to resign.

Two days after Yates’ warning, January 28, Trump spent an hour on the phone with Vladimir Putin, with Flynn (and Pence) in attendance.

So one of the things that Trump enabled by stalling on his response to Sally Yates was that phone call.

In any case, the claim that Yates’ conversations with McGahn should be covered by Executive Privilege is a stretch. Just by way of precedent, in 2007, Jim Comey testified about his conversations with White House Counsel Alberto Gonzales while serving as Acting Attorney General.

That is, Yates’ conversation should not be covered by Executive Privilege unless Trump is claiming he was involved in hiding this information from Mike Pence.

I want to return to last week’s House Intelligence Hearing on Russia (because that fecker Devin Nunes canceled my birthday hearing with James Clapper and John Brennan today), to revisit a question I’ve asked a number of times (in most detail here): what was the relationship between Russia’s FSB and GRU intelligence services in the DNC hack?

The public narrative (laid out in this post) goes like this: Sometime in summer 2015, APT (Advanced Persistent Threat) 29 (associated with FSB, Russia’s top intelligence agency) hacked the DNC along with 1,000 other targets and because DNC ignored FBI’s repeated warnings, remained in their network unnoticed. Then, in March 2016, APT 28 (generally though not universally associated with GRU, Russia’s military intelligence) hacked DNC and John Podesta. According to the public story, GRU oversaw the release (via DC Leaks and Guccifer 2.0) and leaking (to Wikileaks via as-yet unidentified cut-outs) of the stolen documents.

Under the public story, then, FSB did the same kind of thing the US does (for example, with Enrique Peña Nieto in 2012), collecting intelligence on a political campaign, whereas GRU did something new (though under FBI-directed Sabu, we did something similar to Bashar al-Assad in 2012), leaking documents to Wikileaks.

Obama’s sanctions to retaliate for the hack primarily focused on GRU, but did target FSB as well, though without sanctioning any FSB officers by name. And in its initial report on the Russian hack, the government conflated the two separate groups, renaming attack tools previously dubbed Cozy and Fancy Bear the “Grizzly Steppe,” making any detailed discussion of how they worked together more confusing. As I noted, however, the report may have offered more detail about what APT 29 did than what APT 28 did.

Last week’s hearing might have been an opportunity to clarify this relationship had both sides not been interested in partisan posturing. Will Hurd even asked questions that might have elicited more details on how this worked, but Admiral Mike Rogers refused to discuss even the most basic details  of the hacks.

HURD: Thank you, Chairman.

And gentlemen, thank you all for being here. And thank you for your continued service to your country. I’ve learned recently the value of sitting in one place for a long period of time and listening and today I’m has added to that understanding and I’m going to try to ask questions that y’all can answer in this format and are within your areas of expertise. And Director Rogers, my first question to you — the exploit that was used by the Russian’s to penetrate the DNC, was it sophisticated? Was it a zero day exploit? A zero day being some type of — for those that are watching, an exploit that has never been used before?

ROGERS: In an open unclassified forum, I am not going to talk about Russian tactics, techniques or procedures about how they executed their hacks.

HURD: If members of the DNC had not — let me rephrase this, can we talk about spear fishing?

ROGERS: Sure, in general terms, yes sir.

HURD: Spear fishing is when somebody sends an email and they — somebody clicks on something in that email…

ROGERS: Right, the user of things (inaudible) they’re receiving an email either of interest or from a legitimate user, they open it up and they’ll often click if you will on a link — an attachment.

HURD: Was that type of tactic used in the…

ROGERS: Again, I’m not in an unclassified forum just not going to be…

The refusal to discuss the most basic details of this hack — even after the government listed 31 reports describing APT 28 and 29 (and distinguishing between the two) in its updated report on the hacks — is weird, particularly given the level of detail DOJ released on the FSB-related hack of Yahoo. Given that the tactics themselves are not secret (and have been confirmed by FBI, regardless of what information NSA provided), it seems possible that the government is being so skittish about these details because they don’t actually match what we publicly know. Indeed, at least one detail I’ve learned about the documents Guccifer 2.0 leaked undermines the neat GRU-FSB narrative.

Comey did confirm something I’ve been told about the GRU side of the hack: they wanted to be found (whereas the FSB side of the hack had remained undiscovered for months, even in spite of FBI’s repeated efforts to warn DNC).

COMEY: The only thing I’d add is they were unusually loud in their intervention. It’s almost as if they didn’t care that we knew what they were doing or that they wanted us to see what they were doing. It was very noisy, their intrusions in different institutions.

There is mounting evidence that Guccifer 2.0 went to great lengths to implicate Russia in the hack. Confirmation GRU also went out of its way to make noise during the DNC hack may suggest both within and outside of the DNC the second hack wanted to be discovered.

I have previously pointed to a conflict between what Crowdstrike claimed in its report on the DNC hack and what the FBI told FireEye. Crowdstrike basically said the two hacking groups didn’t coordinate at all (which Crowdstrike took as proof of sophistication). Whereas FireEye said they did coordinate (which it took as proof of sophistication and uniqueness of this hack). I understand the truth is closer to the latter. APT 28 largely operated on its own, but at times, when it hit a wall of sorts, it got help from APT 29 (though there may have been some back and forth before APT 29 did share).

All of which brings me to two questions Elise Stefanik asked. First, she asked — casually raising it because it had “been in the news recently” — whether the FSB was collecting intelligence in its hack of Yahoo.

STEFANIK: Thank you. Taking a further step back of what’s been in the news recently, and I’m referring to the Yahoo! hack, the Yahoo! data breech, last week the Department of Justice announced that it was charging hackers with ties to the FSB in the 2014 Yahoo! data breech. Was this hack done to your knowledge for intelligence purposes?

COMEY: I can’t say in this forum.

STEFANIK: Press reporting indicates that Yahoo! hacked targeted journalists, dissidence and government officials. Do you know what the FSB did with the information they obtained?

COMEY: Same answer.

Again, in spite of the great deal of detail in the indictment, Comey refused to answer these obvious questions.

The question is all the more interesting given that the indictment alleges that Alexsey Belan (who was sanctioned along with GRU in December) had access to Yahoo’s network until December 2016, well after these hacks. More interestingly, Belan was “minting” Yahoo account credentials at least as late as May 20, 2016. That’s significant, because one of the first things that led DNC to be convinced Russia was hacking it was when Ali Chalupa, who was then collecting opposition research on Paul Manafort from anti-Russian entities in Ukraine, kept having her Yahoo account hacked in early May. With the ability to mint cookies, the FSB could have accessed her account without generating a Yahoo notice. Chalupa has recently gone public about some, though not all, of the other frightening things that happened to her last summer (she was sharing them privately at the time). So at a time when the FSB could have accomplished its goals unobtrusively, hackers within the DNC network, Guccifer 2.0 outside of it, and stalkers in the DC area were all alerting Chalupa, at least, to their presence.

While it seems increasingly likely the FSB officers indicted for the Yahoo hack (one of whom has been charged with treason in Russia) were operating at least partly on their own, it’s worth noting that overlapping Russian entities had three different ways to access DNC targets.

Note, Dianne Feinstein is the one other person I’m aware of who is fully briefed on the DNC hack and who has mentioned the Yahoo indictment. Like Comey, she was non-committal about whether the Yahoo hack related to the DNC hack.

Today’s charges against hackers and Russian spies for the theft of more than 500 million Yahoo user accounts is the latest evidence of a troubling trend: Russia’s sustained use of cyber warfare for both intelligence gathering and financial crimes. The indictment shows that Russia used these cyberattacks to target U.S. and Russian government officials, Russian journalists and employees of cybersecurity, financial services and commercial entities.

There seems to be a concerted effort to obscure whether the Yahoo hack had any role in the hack of the DNC or other political targets.

Finally, Stefanik asked Comey a question I had myself.

STEFANIK: OK, I understand that. How — how did the administration determine who to sanction as part of the election hacking? How — how familiar with that decision process and how is that determination made?

COMEY: I don’t know. I’m not familiar with the decision process. The FBI is a factual input but I don’t recall and I don’t have any personal knowledge of how the decisions are made about who to sanction.

One place you might go to understand the relationship between GRU and FSB would be to Obama’s sanctions, which described the intelligence targets this way.

• The Main Intelligence Directorate (a.k.a. Glavnoe Razvedyvatel’noe Upravlenie) (a.k.a. GRU) is involved in external collection using human intelligence officers and a variety of technical tools, and is designated for tampering, altering, or causing a misappropriation of information with the purpose or effect of interfering with the 2016 U.S. election processes.
• The Federal Security Service (a.k.a. Federalnaya Sluzhba Bezopasnosti) (a.k.a FSB) assisted the GRU in conducting the activities described above.

[snip]

• Sanctioned individuals include Igor Valentinovich Korobov, the current Chief of the GRU; Sergey Aleksandrovich Gizunov, Deputy Chief of the GRU; Igor Olegovich Kostyukov, a First Deputy Chief of the GRU; and Vladimir Stepanovich Alexseyev, also a First Deputy Chief of the GRU.

Remember, by the time Obama released these sanctions, several FSB officers, including Dmitry Dokuchaev (who was named in the Yahoo indictment) had been detained for treason for over three weeks. But the officers named in the sanctions, unlike the private companies and individual hackers, are unlikely to be directly affected by the sanctions.

The sanctions also obscured whether Belan was sanctioned for any role in the DNC hack.

• Aleksey Alekseyevich Belan engaged in the significant malicious cyber-enabled misappropriation of personal identifiers for private financial gain.  Belan compromised the computer networks of at least three major United States-based e-commerce companies.

Again, all of this suggests that the intelligence community has reason to want to obscure how these various parts fit together, even while publicizing the details of the Yahoo indictment.

Which suggests a big part of the story is about how the public story deviates from the real story the IC is so intent on hiding.

Multiple outlets this morning are covering Devin Nunes’ admission that he was on “White House grounds” last Tuesday, leading up to his Wednesday announcement that Trump officials’ identities may (or may not have) been unmasked in intelligence reports unrelated to Russia.

One source told CNN that Nunes, a California Republican, was seen on the White House grounds the day before his announcement. In a phone interview, Nunes confirmed to CNN that he was on the White House grounds that day — but he said he was not in the White House itself. (Other buildings, including the Eisenhower Executive Office Building, are on the same grounds.)

No one in the White House was aware that he was there, Nunes said.

The California Republican said he was there for additional meetings “to confirm what I already knew” but said he wouldn’t comment further so as to not “compromise sources and methods.”

He told CNN he wanted to “reiterate this has nothing to do with Russia.”

Nunes went to the building because he needed a secure area to view the information, he told CNN. A government official said Nunes was seen Tuesday night at the National Security Council offices of the Eisenhower building which, other than the White House Situation Room, is the main area on the complex to view classified information in a secure room.

Nunes explained to Eli Lake he couldn’t use HPSCI’s own SCIF, just two miles away, because it didn’t have networked access to the reports that he was being shown.

In an interview Monday, Nunes told me that he ended up meeting his source on the White House grounds because it was the most convenient secure location with a computer connected to the system that included the reports, which are only distributed within the executive branch. “We don’t have networked access to these kinds of reports in Congress,” Nunes said. He added that his source was not a White House staffer and was an intelligence official.

Laura Rozen notes that Nunes’ former aide, Michael Ellis, now works as NSC Deputy Legal Adviser.

New special assistant to the president, NSC deputy legal adviser Michael Ellis served as Nunes’ aide, HPSCI gen. counsel til early March 3/

Whether or not Ellis is Nunes’ source, it seems clear that someone in the EEOB first told, then shared, intercepts with Nunes.

That raises questions about how said source obtained the intercepts. That’s true particularly given that by Nunes’ later admission that some of the names weren’t unmasked per se, but rather described in such a way that would make the US person (that is, the Trump associate) clear, so it’s not like the NSC could just search on all of Trump’s top aides to find out if their names had been unmasked.

Remember, too, that this takes place against the background of HPSCI’s requests to NSA, CIA, and FBI for details on all the US persons who had been unmasked between June 2016 and January 2017. NSA had provided a partial response (basically deferring an answer until they could do more research) before last week’s hearing and Nunes’ press conference. But it’s not clear whether FBI intended to reply — it would have several possible reasons for refusing to do so, both to protect an ongoing investigation but also because unmasking is not the question to ask FBI, database searches are (it’s not clear how many of HPSCI’s Republicans understand this, which is pathetic).

In any case, NSA and CIA (at least) are already in the process of responding to this request. But someone worked his or her own angles to respond to the same request for Nunes.