The Scope of DOJ IG’s FISA Review

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A seeming millennium ago, last Tuesday, DOJ’s Inspector General released a Management Advisory Memo describing the interim results of its effort to assess whether problems identified in Carter Page’s FISA application were unique, or reflected a more general problem with FISA. Based on the results from two prongs of DOJ IG’s ongoing investigation, DOJ IG believed they needed to alert FBI right away of their preliminary results in hopes they would inform FBI’s efforts to fix this and to offer two additional recommendations on top of the ones they made in December.

Unsurprisingly, a bunch of mostly right wingers have misrepresented the MAM. I wanted to use this post to explore what the MAM shows about the two prongs of investigation, the significance of the results, and the review of FISA generally. As a bonus track, I’ll talk about what role Intelligence Community Inspector General Michael Atkinson, who was fired on Friday, did not have in the FISA application reviews discussed in the MAM, contrary to what a bunch of wingnuts are claiming to justify his firing.

The universe of FISA

Before getting into what the review showed, some background on the universe of FISA may be helpful.

Both prongs of DOJ IG’s investigation examine probable cause FISA applications from 8 FBI offices submitted over the 5 year period ending last September (the end of Fiscal Year 2019).

The last three years’ transparency reports from the Office of Director of National Intelligence have broken down how many of the probable cause FISA applications were known to target US persons. While there’s been some flux in the number of total probable cause applications, the ones targeting US persons have been going down (perhaps not coincidentally, as scrutiny of the process has increased), from 336 in CY 2016 to 232 in CY 2018.

Using 300 applications targeting US persons as an estimate, that says for the 5-year period DOJ IG is examining, there would have been roughly 1,500 that targeted US persons. The MAM says that the 8 offices included in the review thus far submitted more than 700 FISA applications “relating to U.S. Persons.”

The FBI has 56 field offices. Some states (CA, TX, FL, NY, PA) have multiple FBI offices. Some offices cover multiple states.

In any given year, National Security Division’s Office of Intelligence only does FISA reviews in a fraction of the FBI offices — 25-30, per a recent court filing (FISA 702 reviews covered a smaller number of offices during the early years of the 5-year period, but it’s unclear whether NSD does the reviews at the same time). A James Boasberg opinion on 702 reauthorization from last year confirmed that, “OI understandably devotes more resources to offices that use FISA authorities more frequently.”  That would presumably include DC, NY, and LA (all of which are big enough to be led by an Assistant Director). Cities with large numbers of Chinese-Americans (like SF) or Muslims (like Minneapolis and Detroit) likely do disproportionately more FISA than other large city offices, and I assume offices in TX and FL do a lot as well.

Prong One: Reviewing Woods Files

DOJ IG described that one prong of their review — their own review of Woods Files — involved visiting those 8 field offices “of varying sizes” and reviewing “judgmentally selected sample” of 29 applications to review.

over the past 2 months, we visited 8 FBI field offices of varying sizes and reviewed a judgmentally selected sample of 29 applications relating to U.S. Persons and involving both counterintelligence and counterterrorism investigations. This sample was selected from a dataset provided by the FBI that contained more than 700 applications relating to U.S. Persons submitted by those 8 field offices over a 5-year period.

Between them, those 8 field offices submitted 700 applications in the 5-year period studied, which says that even with some smaller offices included, the field offices still submitted almost half of the US person applications in the period (meaning DOJ IG likely included at least a few of the biggest offices).

This review is ongoing. But thus far, assuming my 1,500 estimate is fair, DOJ IG reviewed around 2% of the applications submitted by the FBI, or 4% of those submitted by these offices. By definition, those 29 files could not have included an application from each office for each year.

For each of these 29 applications, DOJ IG reviewed the Woods File associated with the application to see if there was, as intended, back-up for each of the factual claims in the application; that’s all they’ve done so far. This prong of the review was a strictly paperwork review: DOJ IG did not review whether the claims in the application could be backed up elsewhere, or if there were things in the case file targeting a person that should have been included in the application (which was actually the far bigger problem in the Carter Page applications).

[I]nitial review of these applications has consisted solely of determining whether the contents of the FBI’s Woods File supported statements of fact in the associated FISA application; our review did not seek to determine whether support existed elsewhere for the factual assertion in the FISA application (such as in the case file), or if relevant information had been omitted from the application.

But they didn’t have to keep reviewing to conclude that Woods Files are not functioning like they’re supposed to. Not only was there not a Woods File for 4 of the applications, but the remaining 25 all had problems.

(1) we could not review original Woods Files for 4 of the 29 selected FISA applications because the FBI has not been able to locate them and, in 3 of these instances, did not know if they ever existed; (2) our testing of FISA applications to the associated Woods Files identified apparent errors or inadequately supported facts in all of the 25 applications we reviewed, and interviews to date with available agents or supervisors in field offices generally have confirmed the issues we identified;

[snip]

[F]or all 25 FISA applications with Woods Files that we have reviewed to date, we identified facts stated in the FISA application that were: (a) not supported by any documentation in the Woods File, (b) not clearly corroborated by the supporting documentation in the Woods File, or (c) inconsistent with the supporting documentation in the Woods File. While our review of these issues and follow-up with case agents is still ongoing—and we have not made materiality judgments for these or other errors or concerns we identified—at this time we have identified an average of about 20 issues per application reviewed, with a high of approximately 65 issues in one application and less than 5 issues in another application.

By comparison, DOJ IG found just 8 Woods File errors in the first Carter Page application and 16 in last two, most problematic, renewals (see PDF 460-465). So the applications DOJ IG reviewed were, on average, worse than the Page application with respect to the Woods compliance.

These applications also didn’t all have the required paperwork from an informant’s handling agent — though in some cases, the agent was the same.

About half of the applications we reviewed contained facts attributed to CHSs, and for many of them we found that the Woods File lacked documentation attesting to these two requirements. For some of these applications, the case agent preparing the FISA application was also the handling agent of the CHS referenced in the application, and therefore would have been familiar with the information in CHS files.

It’s actually somewhat notable that just half of this very small sample of applications included information from an informant. And only some of these files were lacking the required paperwork for informants. That suggests, to the degree that the FISA application might hide problems with informants that otherwise might have been found in a criminal warrant affidavit (though even there, FBI has a lot of ways to protect these details), that may not be as big of a problem as defense attorneys have suspected (though that’s an area where I’d expect bigger problems on the CT side than the CI one).

The findings on the third problem identified in the Carter Page applications — that the Woods File did not get a fresh review with each application — are less definitive.

based on the results of our review of two renewal files, as well as our discussions with FBI agents, it appears that the FBI is not consistently re-verifying the original statements of fact within renewal applications. In one instance, we observed that errors or unsupported information in the statements of fact that we identified in the initial application had been carried over to each of the renewal applications. In other instances, we were told by the case agents who prepared the renewal applications that they only verified newly added statements of fact in renewal applications because they had already verified the original statements of fact when submitting the initial application.

This could represent as few as 3 of the 25 files for which there were Woods Files.

In any case, the larger point seems to be the more important one: the FBI has not been using Woods Files like they’re supposed to, making sure that the paperwork to back up any claim made in a FISA application actually reflects the underlying documentation and thereby making sure the claims they make to the FISC are valid.

Presiding FISA Judge James Boasberg issued an order today, requiring the government to figure out whether any of the problems identified in this review were material, with an emphasis on the 4 applications for which there was no Woods File.

Reviewing Accuracy Reviews

As noted, the FBI has not been using Woods Files like they’re intended to be used. But neither is DOJ’s National Security Division.

The other part of DOJ IG’s audit involved reviewing the Accuracy Reviews done by the FBI and NSD as part of the existing FISA oversight process.

There are two kinds of Accuracy Reviews done as part of FISA oversight. First, the FBI requires that lawyers in its field offices review at least one application a year.

FBI requires its Chief Division Counsel (CDC) in each FBI field office to perform each year an accuracy review of at least one FISA application from that field office.

As noted below, these are sent to FBI OGC. NSD’s Office of Intelligence doesn’t get them.

In addition, NSD OI does their own reviews for a subset of offices.

Similarly, NSD’s Office of Intelligence (OI) conducts its own accuracy review each year of at least 1 FISA application originating from each of approximately 25 to 30 different FBI field offices.

Remember there are 56 field offices and roughly 300 US person applications. So in practice, IO could review as few as 8% of the applications in a given year (though it’s probably more than that).

Here’s how DOJ described the OI reviews to FISC in December.

OI’s Oversight Section conducts oversight reviews at approximately 25-30 FBI field offices annually. During those reviews, OI assesses compliance with Court-approved minimization and querying procedures, as well as the Court orders. Pursuant to the 2009 Memorandum, OI also conducts accuracy reviews of a subset of cases as part of these oversight reviews to ensure compliance with the Woods Procedures and to ensure the accuracy of the facts in the applicable FISA application. 5 OI may conduct more than one accuracy review at a particular field office, depending on the number of FISA applications submitted by the office and factors such as whether there are identified cases where errors have previously been reported or where there is potential for use of FISA information in a criminal prosecution. OI has also, as a matter of general practice, conducted accuracy reviews of FISA applications for which the FBI has requested affirmative use of FISA-obtained or -derived information in a proceeding against an aggrieved person. See 50U.S.C. §§ 1806(c), 1825(d).

(U) During these reviews, OI attorneys verify that every factual statement in the categories of review described in footnote 5 is supported by a copy of the most authoritative document that exists or, in enumerated exceptions, by an appropriate alternate document. With regard specifically to human source reporting included in an application, the 2009 Memorandum requires that the accuracy sub-file include the reporting that is referenced in the application and further requires that the FBI must provide the reviewing attorney with redacted documentation from the confidential human source sub-file substantiating all factual assertions regarding the source’s reliability and background. 6

5 (U) OI’s accuracy reviews cover four areas: (1) facts establishing probable cause to believe that the target is a foreign power or an agent of a foreign power; (2) the fact and manner of FBI’s verification that the target uses or is about to use each targeted facility and that property subject to search is or is about to be owned, used, possessed by, or in transit to or from the target; (3) the basis for the asserted U.S. person status of the target(s) and the means of verification; and (4) the factual accuracy of the related criminal matters section, such as types of criminal investigative techniques used (e.g., subpoenas) and dates of pertinent actions in the criminal case. See 2009 Memorandum at 3.

6 (U) If production of redacted documents from the confidential human source sub-file would be unduly burdensome, compromise the identity of the source, or otherwise violate the Attorney General Guidelines for Confidential Human Sources or the FBI’s Confidential Human Source Manual, FBI personnel may request that the attorney use a human source sub-file request form. Upon receipt of that form, the relevant FBI confidential human source coordinator will verify the accuracy of the source’s reliability and background that was used in the application, and transmit the results of that review to the reviewing or attorney.

So in December, DOJ claimed that these reviews served to “ensure compliance with the Woods Procedures and to ensure the accuracy of the facts in the applicable FISA application.” They claimed that “OI attorneys verify that every factual statement in the categories of review described in footnote 5” — pertaining to 1) facts establishing probable cause 2) the target actually uses the targeted facilities 3) the target is a US person and 4) the criminal investigative techniques are accurately described —  are “supported by a copy of the most authoritative document that exists or, in enumerated exceptions, by an appropriate alternate document.” In theory, the easiest way to verify bullet point 1 (the case for probable cause) would be for the OI lawyers to check whether the Woods Files were complete.

Before I get into results, a word about the numbers.

Altogether, DOJ IG reviewed 34 FBI CDC and NSD OI reports and those reports covered 42 US person FISA applications.

Specifically, in addition to interviewing FBI and NSD officials, we reviewed 34 FBI and NSD accuracy review reports covering the period from October 2014 to September 2019—which originated from the 8 field offices we have visited to date and addressed a total of 42 U.S. Person FISA applications, only one of which was also included among the 29 FISA applications that we reviewed.

These numbers are bit confusing. For starters, the base number of accuracy reports, 34, is less than 40 (what it would be if there were a review for all 8 field offices for each of 5 years, which is supposed to be mandated for each FBI office). DOJ IG did not review one application per year per FBI office. I asked DOJ IG why that was; they said only “there may be many reasons why this is the case,” emphasizing multiple times that this audit is in its earliest phases (I’ve got requests for comment in with both NSD and FBI). Some of those many reasons might be:

  • Smaller offices reviewed don’t submit a FISA application every year, so for some offices there was none to review
  • OI doesn’t review most FBI offices every year, so for less frequently reviewed offices, there won’t be a review every year (but there should be an FBI one if the office did any FISA applications)
  • DOJ IG was only interested in US person FISA applications; some of the ones that FBI and OI reviewed would likely not target US persons
  • Only applications for which FISA coverage had ended were reviewed; for the later applications, FISA coverage might be ongoing and therefore excluded from the DOJ IG review
  • DOJ IG may not have finished its review of all these Accuracy Reviews reviews yet, so didn’t include them in the MAM

Additionally, the references to this part of review seems to suggest that the NSD reviews the same FISA application that each FBI field office reviews each year, as well as any problematic ones or ones being used in a prosecution, though that’s something I’m trying to get clarity on. Likewise, I’m trying to figure out whether FBI and OI similarly try to pick a “judgmentally selected sample” to ensure both the counterterrorism and counterintelligence functions are reviewed.

One detail makes this process a really bad measure of Woods File compliance (which is different from whether they measure the accuracy of the application effectively). Before any of these reviews happen, the field offices are told which applications will be reviewed, which gives the case agents a chance to pull together the documentary support for the application.

Thus, prior to the FBI CDC or NSD OI review, field offices are given advance notification of which FISA application(s) will be reviewed and are expected to compile documentary evidence to support the relevant FISA.

If the Woods Procedures were being followed, it should never be the case that the FBI needs to compile documentary evidence before the review; the entire point of it is it ensure the documentary evidence is in the file before any application gets submitted. Once you discover that all the FBI and OI reviews get advance notice, you’re not really reviewing Woods Procedures, it seems to me, you’re reviewing paperwork accuracy.

Nevertheless, even with the advance notice, the 93% of the 42 applications DOJ IG reviewed included problems.

[T]hese oversight mechanisms routinely identified deficiencies in documentation supporting FISA applications similar to those that, as described in more detail below, we have observed during our audit to date. Although reports related to 3 of the 42 FISA applications did not identify any deficiencies, the reports covering the remaining 39 applications identified a total of about 390 issues, including unverified, inaccurate, or inadequately supported facts, as well as typographical errors. At this stage in our audit, we have not yet reviewed these oversight reports in detail.

Keep in mind, OI is reviewing for four things — whether there’s paperwork present to support  that the application shows 1) facts establishing probable cause 2) the target actually uses the targeted facilities 3) the target is a US person (or, for applications targeting under the lower foreign power standard, that the target is not a US person, but that shouldn’t be relevant here) and 4) the criminal investigative techniques used already are accurately described. The second bullet point is actually at least as important as the probable cause, because if the wrong person is wiretapped, then a completely innocent person ends up compromised. That’s the kind of thing where typographical errors (say, transposing 2 digits in a phone number) have had serious ramifications in the past.

The lack of clarity regarding numbers makes one other point unclear. The memo setting up this process envisions NSD’s involvement in assessing whether problems with FISA applications are material. But in practice, the FBI doesn’t consult with them. And in the set of applications that DOJ IG Reviewed (again, it’s unclear whether OI reviewed all the FBI files, along with a select few more, or not), FBI found more problems than OI did, 250 as compared to 140 (for a total of 390 problems).

The 2009 joint FBI-NSD policy memorandum states that “OI determines, in consultation with the FBI, whether a misstatement or omission of fact identified during an accuracy review is material.” The 34 reports that we reviewed indicate that none of the approximately 390 identified issues were deemed to be material. However, we were told by NSD OI personnel that the FBI had not asked NSD OI to weigh in on materiality determinations nor had NSD OI formally received FBI CDC accuracy review results, which accounted for about 250 of the total issues in the reports we reviewed.

[snip]

FBI CDC and NSD OI accuracy review reports had not been used in a comprehensive, strategic fashion by FBI Headquarters to assess the performance of individuals involved in and accountable for FISA applications, to identify trends in results of the reviews, or to contribute to an evaluation of the efficacy of quality assurance mechanisms intended to ensure that FISA applications were “scrupulously accurate.” That is, the accuracy reviews were not being used by the FBI as a tool to help assess the FBI’s compliance with its Woods Procedures.

This is one of the complaints and recommendations in the MAM: it complains that the FBI reviews are basically going into a file somewhere, without a lessons learned process. It recommends that change. It also recommends that OSD get FBI’s reports, so they can integrate them into their own “trends reports” that they do based on their own reviews.

DOJ IG describes its finding that these results aren’t being used in better fashion.

(4) FBI and NSD officials we interviewed indicated to us that there were no efforts by the FBI to use existing FBI and NSD oversight mechanisms to perform comprehensive, strategic assessments of the efficacy of the Woods Procedures or FISA accuracy, to include identifying the need for enhancements to training and improvements in the process, or increased accountability measures.

At least given their description, however, I think they’ve found something else. They’ve confirmed that — contrary to DOJ’s description to FISC that,

OI also conducts accuracy reviews of a subset of cases as part of these oversight reviews to ensure compliance with the Woods Procedures and to ensure the accuracy of the facts in the applicable FISA application.

OI is actually only doing the latter part, measuring the accuracy of the facts in an applicable FISA application. To check the accuracy of the Woods Files, they should with no notice obtain a subset of them, as DOJ IG just did, and see whether the claims in the report are documented in the Woods File, and only after that do their onsite reviews (with notice, to see if there was documentation somewhere that had not been included in the file). That might actually be a better way of identifying where there might be other kinds of problems with the application.

With regards to the lessons learned problem, there seems like an obvious solution to this: Congress mandates that DOJ complete semiannual reviews of 702 practices (which includes reviews of NSA and CIA practices, as well as those of FBI), and they include precisely this kind of trend analysis. Even in spite of their heavy redaction in public form, I’ve even been able to identify problems with 702 and related authorities in the same time frame as NSA was doing so. There’s no reason that semiannual reports couldn’t be expanded (or replicated) to include probable cause targeting. At the very least it’d be a way to force OI and FBI to have this lessons learned discussion. Republican members of Congress have claimed that more oversight should be shifted to Congress (not a very good idea given that no one in Congress seemed to be conducting the close read that I had been), and this is an easy way to play a more active role.

DOJ IG has not reviewed the most important things yet

The MAM is explicit that it has not reviewed the import of the errors it found.

[W]e have not made judgments about whether the errors or concerns we identified were material. Also, we do not speculate as to whether the potential errors would have influenced the decision to file the application or the FISC’s decision to approve the FISA application. In addition, our review was limited to assessing the FBI’s execution of its Woods Procedures, which are not focused on affirming the completeness of the information in FISA applications.

Nor has it reviewed FBI’s own decisions regarding the 290 errors they found in their own reviews to determine if the FBI’s judgment that they were not material was valid. If it compared its results for the one application that FBI and/or OI also reviewed, it doesn’t say so explicitly (which would seem a really important measure about the integrity of the standard reviews).

And while it’s significant that there are so many errors, regardless of the review, it still doesn’t address what the Carter Page case said was the far more important issue: what got left out. Of the 8 to 18 Woods Files errors in the Carter Page investigation, for example, just one got to the core of the problem with the application, that Page was making denials, denials that — before later applications were submitted — the FBI had reason to know were correct (another of the Woods File errors might have raised questions about Steele, but did not go to the heart of the problems with his reporting). The other problems had to do with paperwork, not veracity. And none of the Woods File problems related to CIA’s contact approval of Page for some but not all of his willful sharing of non-public information with known Russian intelligence officers.

DOJ IG says it will conduct further analysis of the problems it has thus far found.

In connection with our ongoing audit, the OIG will conduct further analysis of the deficiencies identified in our work to date and of FBI FISA renewals. In addition, we are expanding the audit’s objective to also include FISA application accuracy efforts performed within NSD. Consistent with the OIG’s usual practices, we will keep the Department and the FBI appropriately apprised of the scope of our audit, and we will prepare a formal report at the conclusion of our work.

But it’s not yet clear that this will include picking a subset of the files already reviewed to do the kind of deep dive that was done with Carter Page.

Further, at this point, DOJ IG seems not to be seeing one of the more obvious conclusions. As explained above, it recommends that the FBI and NSD use their accuracy reviews better to better do lessons learned.

We recommend that the FBI institute a requirement that it, in coordination with NSD, systematically and regularly examine the results of past and future accuracy reviews to identify patterns or trends in identified errors so that the FBI can enhance training to improve agents’ performance in completing the Woods Procedures, or improve policies to help ensure the accuracy of FISA applications.

But it specifically speaks in terms of improving performance with the Woods Procedures.

If the Woods Procedures are meant to be a tool, it would be necessary to conduct no-notice reviews of the files. Otherwise, you’re not reviewing the Woods Procedures. That would need to be a recommendation.

But it seems to be possible if not likely that fixing the problems IDed back before 2000 with a paperwork requirement that doesn’t go to the core of the issue hasn’t worked (and, as described, has never been used as a key measure for the existing OI reviews), then it seems other solutions are necessary — including that criminal defendants get some kind of review. Though even that would be inadequate to the task, given that before DOJ makes the decision to permit FISA materials to be used in a prosecution, they review whether the files would sustain a judge’s review first.

The goal here is not to placate FISC, nor is it to check some boxes as part of the application process. It’s to ensure that absent the threat of review by a defense attorney, the benefits (which already have serious limits) of adversarial review are achieved via other means. And there’s good reason to believe that absent more significant changes in the oversight process, the Woods Procedures are never going to achieve that result.

The Michael Atkinson conspiracy theory

As I was already writing this, it became clear that the frothy right was using this report, released on Tuesday, to provide a non-corrupt excuse for Trump’s firing of Intelligence Community Inspector General Michael Atkinson late on Friday night.

The basis for such a claim is not entirely clear to me. Frothers in my Twitter timeline at first seemed to confuse Atkinson with DOJ’s IG, Michael Horowitz, or believed that the ICIG had a central role in FISA. Then they seized on the fact that, for the two years before he became ICIG, Atkinson was at National Security Division, which both oversees some cases likely to have a FISA component and oversees the submission of applications and then conducts the oversight reviews.

Atkinson’s confirmation materials provide some exactitude for what he did at DOJ when:

September 2002 to March 2006: Trial Attorney for DOJ’s Fraud Section

March 2006 to March 2016: AUSA in DC USAO working on Fraud (including in oversight positions)

March 2016 to June 2016: Acting DAAG, National Asset Protection at NSD

July 2016 to May 2018: Senior Counsel to AAG for NSD

There would be little imaginable reason for a fraud prosecutor, as Atkinson was for the majority of his DOJ career, to use FISA (two of the highest profile cases he worked on were the prosecution of Democratic Congressmen William Jefferson and Jesse Jackson Jr), though he said he worked on some espionage, sanctions, and FARA cases. As Acting DAAG, he worked in a different part of NSD than the unit that handles FISA applications and oversight.

As he described it in his confirmation materials, he would have been a consumer of FISA information, but not the person doing the reviews.

As Senior Counsel to the AAG (serving under John Carlin, Mary McCord, Dana Boente, and John Demers), he might have visibility into review processes on FISAs, though at that level, managers assumed the Woods Procedure worked as required (meaning, Atkinson would not have known of these problems).

In his confirmation materials, however, Atkinson suggested he spent far more time as Senior Counsel overseeing the response to unauthorized disclosures, which likely still included Snowden when he started in 2016, added Shadow Brokers that year, and would have focused closely on Vault 7 in 2017 and 2018.

My experience in helping to coordinate the responses to unauthorized disclosures while serving as the Senior Counsel to the Assistant Attorney General, U.S. Department of Justice, National Security Division (NSD), should assist me in serving effectively as the IC IG. As part of this position, I have assisted in coordinating the Department’s efforts to investigate and prosecute unauthorized disclosures across the IC enterprise. This experience has reinforced for me the important role that fair, impartial, and effective whistleblower protection processes play in maximizing the IC’s effectiveness and minimizing the risks of unauthorized disclosures and harm to our national security. As part of this experience, I have also been a consumer and user of intelligence from multiple intelligence sources, and I have seen first-hand the benefits to our country when there is a unity of effort by the Intelligence Community to address national security needs.

For Vault 7, at least, the investigation into Joshua Schulte — who was always the prime suspect — used criminal process from the very start (though it’s possible that the increased surveillance of Julian Assange involved FISA). And while there are less spectacular cases of unauthorized disclosure that might involve some nexus with a foreign country, raising FISA issues, many of these leaks cases were criminal cases, seemingly not reliant on FISA. Which would mean some of the most sensitive cases Atkinson worked on didn’t involve FISA.

Though the frothy right may think Atkinson had a central role because the title of the person at FBI field offices who must conduct a review is “Chief [Division] Counsel,” and they confused both the agency and the location.

In any case, there’s one more piece missing from this: while I happen to think DOJ IG has not focused closely enough on what NSD should be doing in its oversight role, thus far, DOJ IG has not investigated it. And so there’s actually no allegation of wrong-doing from anyone at NSD in either of these two reports, not even the NSD people who actually work on FISA. On the contrary, DOJ IG simply describes OI doing reviews where they identified problems and wrote them up. Yes, OI likely should have been more involved in determining whether the errors FBI found were material. Given that Boasberg has mandated materiality reviews of the 29 files reviewed by DOJ IG, now would be a good time to implement that practice.

Still, compliance or not with Woods Files remains a distraction from a deeper review of whether these files included all pertinent information. And if FISA is going to remain viable, that’s the examination that needs to happen.

Horowitz

It Turns Out Carter Page Was Not Special

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DOJ’s IG released a Management Advisory Memorandum reporting on its results to date of the Woods File review promised in the wake of the DOJ IG Report that found (in part) that 8 (in the first) and 16 (in the last) claims made over the course of four FISA applications to surveil Carter Page were not backed by the Woods file meant to ensure the integrity of FISA applications. (The table starting on PDF 460 lists these errors.)

I’ll have more on its methodology and findings, but the key takeaway is that Carter Page was not special, nor specially targeted by a Deep State intent on taking down the President.

Of 29 FISA applications DOJ IG selected for review, the Woods File was missing for four applications.

And for the 25 Woods Files there were able to review, there were an average of 20 issues identified per application, a higher rate than that found in the Carter Page review.

Although all 29 FISA applications that we selected for review were required by FBI policy to have Woods Files created by the case agent and reviewed by the supervisory special agent, we have identified 4 applications for which, as of the date of this memorandum, the FBI either has been unable to locate the Woods File that was prepared at the time of the application or for which FBI personnel suggested a Woods File was not completed. We, therefore, make a recommendation below that the FBI take steps to ensure that a Woods File exists for every FISA application submitted to the FISC in all pending investigations.

Additionally, for all 25 FISA applications with Woods Files that we have reviewed to date, we identified facts stated in the FISA application that were: (a) not supported by any documentation in the Woods File, (b) not clearly corroborated by the supporting documentation in the Woods File, or (c) inconsistent with the supporting documentation in the Woods File. While our review of these issues and follow-up with case agents is still ongoing—and we have not made materiality judgments for these or other errors or concerns we identified—at this time we have identified an average of about 20 issues per application reviewed, with a high of approximately 65 issues in one application and less than 5 issues in another application.

It’s not that the Deep State was specifically targeting Page and candidate Donald Trump. It’s that the Woods Procedures weren’t working.

Adam Schiff Totally Gutted the Section 215 Notice Provision in the FISA Reauthorization Bill

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I’m working on a series of posts about the bill reauthorizing Section 215 that will be pushed through Congress today. Effectively, Adam Schiff took the Jerry Nadler bill, watered down some key provisions, but added a bunch of symbolic certifications that would do nothing to eliminate the kinds of problems in the Carter Page application, probably are less effective than certifications presiding FISA judge James Boasberg required the other day, but give Republicans who are too stupid to understand FISA the ability to claim victory.

One of the ways that Schiff has watered down the Nadler bill is particular alarming. It effectively guts efforts to require notice to defendants for Section 215. Here’s the language in his bill:

(2) USE IN TRIALS, HEARINGS, OR OTHER PROCEEDINGS.—For purposes of subsections (b) through (h) of section 106—

(A) information obtained or derived from the production of tangible things pursuant to an investigation conducted under this section shall be deemed to be information acquired from an electronic surveillance pursuant to title I, unless the court or other authority of the United States finds, in response to a motion from the Government, that providing notice to an aggrieved person would harm the national security of the United States; and

(B) in carrying out subparagraph (A), a person shall be deemed to be an aggrieved person if

(i) the person is the target of such an investigation; and

(ii) the activities or communications of the person are described in the tangible things that the Government intends to use or disclose in any trial, hearing, or other proceeding.

Here’s Nadler’s original language:

(2) USE IN TRIALS, HEARINGS, OR OTHER PROCEEDINGS.—For purposes of subsections (b) through (h) of section 106—

(A) information obtained or derived from the production of tangible things pursuant to an investigation conducted under this section shall be deemed to be information acquired from an electronic surveillance pursuant to title I; and

(B) in carrying out subparagraph (A), a person shall be deemed to be an aggrieved person if—

(i) the person is the target of such an investigation; or

(ii) the activities or communications of the person are described in any tangible thing collected pursuant to such an investigation.

As it was, Nadler’s language had a loophole, in that it changed the definition of aggrieved person. Under 18 USC §1801, an aggrieved person is anyone who is either the target or who has been caught up in a wiretap or other collection targeting them.

“Aggrieved person” means a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance.

Under Nadler’s bill, someone is aggrieved only if they are the “target” of “such an investigation. But “investigation” there seems to pertain to the original 215 order, meaning that if someone started a second investigation into someone based off information discovered in 215 (which is often used for lead generation) it’s not even clear they would count as the target, even if they were the ones being prosecuted or put on a no-fly list or some such thing.

Still, under Nadler’s bill, that person would likely still get notice if their activities — say, buying a pressure cooker or access a certain website — would have been collected using the 215 order.

But Schiff’s bill utterly guts even that. He does so in three ways.

Working from the bottom, Schiff requires that you be both the target of the investigation and that your activities or communications got collected under 215. It appears to mean that only those who are the target of the original 215 order would be aggrieved (there are still a number of bulky orders that don’t target any person, so if an investigation arose out of a lead from such bulky orders, no one would ever be aggrieved under this definition).

Then, Schiff only counts someone as aggrieved if the government will introduce the evidence collected under 215 order. That is, if someone is targeted in part for buying a pressure cooker, but the pressure cooker lead led to a bunch of other evidence, that person might never count as aggrieved even if the original investigation into her came from purchasing a pressure cooker.

Plus, this language seems to invite parallel construction. If the government wanted to introduce evidence of that pressure cooker purchase, they could just subpoena the store directly.

Finally, and most outrageously, the government can still move not to give that notice based on a claim that providing it “would harm to the national security of the United States.” Outrageously, they don’t even have to convince a judge that such harm is real. A court “or other authority of the United States” could agree with such a finding. The Attorney General is “an authority of the United States.” So Attorney General Bill Barr — the father of the first subpoena based dragnet — could make a motion saying that notice of a dragnet would harm the national security of the United States, and Attorney General Bill Barr could agree with Bill Barr that that’s the case.

This is how the whole dragnet problem started in the first place, when, in 1992, Bill Barr decided that he could authorized secret dragnets.

It’s hard to believe the bill would make such ridiculous changes unless there were something DOJ is trying to hide. Whatever the reason, this language utterly guts the notice provision, while still pretending it actually does include one.

Amid Discussions of FISA Reform, James Boasberg Pushes for Greater Reform

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It’s not entirely clear what will happen in a few weeks when several existing FISA provisions expire; there are ongoing discussions about how much to reform FISA in the wake of the Carter Page IG Report. But before anyone passes legislation, they would do well to read the order presiding FISA Judge James Boasberg issued yesterday.

On its face, Boasberg’s order is a response to DOJ’s initial response to FISC’s order to fix the process, Amicus David Kris’ response to that, and DOJ’s reply to Kris. The order ends by citing In re Sealed Case, the 2002 FISCR opinion that limited how much change the FISA Court can demand of DOJ, and “acknowledging that significant change can take time, and recognizing the limits of its authority.” By pointing to In re Sealed Case, Boasberg highlights the limits of what FISC can do without legislation from Congress — and, importantly, it highlights the limits of what FISC could do to improve the process if Bill Barr were to convince Congress that DOJ can fix any problems itself, without being forced to do so by Congress.

After invoking In Re Sealed Case, Boasberg orders reports (due March 27, May 4, May 22, June 30, and July 3) on the progress of a number of improvements. He orders that any DOJ or FBI personnel under disciplinary or criminal review relating to work on FISA applications may not participate in preparing applications for FISC, and he requires additional signoffs on applications, including Section 215 orders, which currently don’t require such affirmations.

Boasberg recognizes that DOJ, not just FBI, needs to change

Remarkably, Boasberg notes what I have — the IG Report provides evidence, its focus on FBI notwithstanding, that some of the blame for the Carter Page application belongs with DOJ, not FBI.

According to the OIG Report, the DOJ attorney responsible for preparing the Page applications was aware that Page claimed to have had some type of reporting relationship with another government agency. See OIG Rpt. at 157. The DOJ attorney did not, however, follow up to confirm the nature of that relationship after the FBI case agent declared it “outside scope.” Id. at 157, 159. The DOJ attorney also received documents that contained materially adverse information, which DOJ advises should have been included in the application. Id. at 169-170. Greater diligence by the DOJ attorney in reviewing and probing the information provided by the FBI would likely have avoided those material omissions.

As a result, Boasberg requires the DOJ attorney signing off on a FISA application to attest to the accuracy of it as well. He also suggests DOJ attorneys “participate in field-office visits to assist in the preparation of FISA applications.”

Boasberg recognizes that DOJ’s existing plan doesn’t address any root cause

Similarly, Boasberg recognizes that if the real problem with the Carter Page FISA applications involved information withheld from the application, improving the Woods procedure won’t fix the problem. In an extended section on oversight, Boasberg strongly suggested that DOJ needs to review whether information was withheld from the application.

Amicus agrees that reviews designed to elicit any pertinent facts omitted from the application, rather than merely verifying the facts that were included, would be extremely valuable, but also recognizes that such in-depth reviews would be extremely resource intensive. See Amicus Letter Br. at 12. He thus recommends that such reviews be conducted periodically at least in some cases and, echoing Samuel Johnson, advises that selection of cases for such reviews should be unpredictable because the possibility that any case might be reviewed “should help concentrate the minds of FBI personnel in all cases.” Id. In its response, the government advised that “it will expand its oversight to include additional reviews to determine whether, at the time an application is submitted to the FISC, there was additional information of which the Government was aware that should have been included and brought to the attention of the Court.” Resp. to Amicus at 13. DOJ advised, however, that given limited personnel to conduct such reviews, it is still developing a process for such reviews and a sampling methodology to select cases for review. ld. The Court sees value in more comprehensive completeness reviews, and random selection of cases to be reviewed should increase that value. As DOJ is still developing the necessary process and methodology, the Court is directing further reporting on this effort.

Amicus also encouraged the Court to require a greater number of accuracy reviews using the standard processes already in place. See Amicus Letter Br. at 12. He believes that the FBI and DOJ have the resources to ensure that auditing occurs in a reasonable percentage of cases and suggested that it might be appropriate to audit a higher percentage of certain types of cases, such as those involving U.S. persons, certain foreign-agent definitions, or sensitive investigative matters. Id. The government did not address Amicus’s recommendation that it increase the number of standard reviews.

Even though accuracy reviews are conducted after the Court has ruled on the application in question, the Court believes that they have some positive effect on future accuracy. In addition to guarding against the repetition of errors in any subsequent application for the same target, they should provide a practical refresher on the level of rigor that should be employed when preparing any FISA application. It is, however, difficult to assess to what extent accuracy reviews contribute to the process as a whole, partly because it is not clear from the information provided how many cases undergo such reviews. The Court is therefore directing further reporting on DOJ’s current practices regarding accuracy reviews, as well as on the results of such reviews.

Finally, the FBI has directed its Office of Integrity and Compliance to work with its Resource Planning Office to identify and propose audit, review, and compliance mechanisms to assess the effectiveness of the changes to the FISA process discussed above. See OIG Rpt. app. 2 at 429. Although the Court is interested in any conclusions reached by those entities, it will independently monitor the government’s progress in correcting the failures identified in the OIG Report.

Again, as I already noted, Boasberg himself found DOJ’s oversight regime inadequate in a 702 opinion written last year. He knows this is insufficient.

But as noted above, all Boasberg can do is order up reports and attestations.

At a minimum, Congress should put legal language behind the oversight he has now demanded twice.

A far better solution, however, would be to provide the oversight on FISA applications that other criminal warrant applications receive: review by defense attorneys in any cases that move to prosecution, which by itself would build in “unpredictabl[y] because the possibility that any case might be reviewed.”

James Boasberg, the presiding judge of the FISA court, issued an order in the middle of a debate about reform that points to several ways FISA should be improved, ways that the he can’t do on his own.

Congress would do well to take note.

Driving Carter Page: What the 302 Says

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One of the seventeen Woods violations the DOJ IG Report cites in its list of errors in the Carter Page report involves a chauffeured car.

It involves a June 1, 2017 interview with Yuval Weber, who is the son of Shlomo Weber, the academic who invited Page to speak before the New Economic School. The IG Report seems to raise doubts about the more important allegation here — that Page was rumored to have met with Igor Sechin (which would match a claim made in the Steele dossier).

A June 2017 interview by the FBI of an individual closely tied to the President of the New Economic School in Moscow who stated that Carter Page was selected to give a commencement speech in July 2016 because he was candidate Trump’s “Russia-guy.” This individual also told the FBI that while in Russia in July 2016, Carter Page was picked up in a chauffeured car and it was rumored he met with Igor Sechin. However, the FD-302 documenting this interview, which was included in the Woods File for Renewal Application No. 3, does not contain any reference to a chauffeured car picking up Carter Page. We were unable to locate any document or information in the Woods File that supported this assertion. 371

This week’s release of Mueller 302s includes the 302 from this interview. It shows that, amid a broad discussion of the way that Russia tries to cultivate Americans (including using invitations such as the one offered to Mike Flynn), Weber described,

SA [redacted] later asked why would NES want a speaker [redacted] Weber said that it was because he was Trump’s Russia-guy. The university typically had heads of state and Nobel Laureates as commencement speakers; in fact, Weber claimed they could have any Nobel Laureate they wanted for the speech.

[redacted]

In July, when Page had traveled to give the commencement speech at NES, Weber recalled that it was rumored in Moscow that Page met with Igor Sechin. Weber said that Moscow is filled with gossip and people in Moscow were interested in Page being there. It was known that a campaign official was there.

Page may have briefly met with Arkady Dvorkovich at the commencement speech, considering Dvorkovich was on the board at NES. But Weber was not aware of any special meeting.

[redacted] was not with Page 100% of the time, he met him for dinner, attended the first public presentation, but missed the commencement speech. They had a few other interactions. Page was very busy on this trip.

The 302 notes the follow-up call (but, as the IG Report correctly notes, does not mention the chauffeured car):

On 6/06/2017, SA [redacted] and SA [redacted] conducted a brief telephone follow-up interview of Weber. Weber provided the following information:

SA [redacted] asked a question specifying Weber’s previous statement that it was rumored in Moscow in July of 2016 that Page had met with Igor Sechin, as stated above, Weber said “I think so.” Weber described that Page mentioned in July that he previously met with the Prime Minister of India Narendra Modi. Weber was surprised that Page would meet a head of state, but it made him less surprised about the rumor of Page meeting Sechin.

Weber also told the agents that if they wanted to chase the rumor that Moscow had started monitoring Trump when oligarchs started “moving” money into NY real estate, they should,

…speak to any billionaire who purchased real estate from Trump, including [redacted] and Kirill Dimitriev.

Dmitriev, of course, is the Russian who successfully reached out to the Trump Transition via Erik Prince and Rick Gerson.

Ultimately, this was still just a rumor, and the FBI accurately noted it as such in the FISA application. The detail about a chauffeured car — which in this day and age could be an Uber! — seems unnecessary to the application, but also did make it into the application in violation of Woods procedures.

Still, as always, the real problems with Page’s applications were not the Woods procedure violations; they involved the more substantive exculpatory information that didn’t make it into the application.

The Carter Page Clauses in the FISA Reform Bill Wouldn’t Help Carter Page

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The House Judiciary Committee has released a mark-up for a bill that would reauthorize Section 215 and make some improvements. It’s not a bad bill. It would:

  • End the Call Detail Record program and prohibit prospective call record collection
  • Include notice for 215 collection
  • End FBI’s exemption for reporting requirements
  • Improve the FISA amicus
  • Impose deadlines for releasing FISA orders

But the bill almost certainly doesn’t accomplish the things it first set out to do, to provide added protections for someone like Carter Page. It does this in two ways.

First, it requires the Privacy and Civil Liberties Oversight Board to complete a report on how much First Amendment activities or race, ethnicity, national origin, religion, or sex are used in targeting decisions under FISA.

SEC. 303. REPORT ON USE OF FISA AUTHORITIES REGARDING PROTECTED ACTIVITIES AND PROTECTED CLASSES.

(a) REPORT.—Not later than one year after the date of the enactment of this Act, the Privacy and Civil Liberties Oversight Board shall make publicly available, to the extent practicable, a report on—

(1) the extent to which the activities and protected classes described in subsection (b) are used to support targeting decisions in the use of authorities pursuant to the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.); and

(2) the impact of the use of such authorities on such activities and protected classes.

(b) ACTIVITIES AND PROTECTED CLASSES DESCRIBED.—The activities and protected classes described in this subsection are the following:

(1) Activities and expression protected by the First Amendment to the Constitution of the United States.

(2) Race, ethnicity, national origin, religious affiliation, sex, and any other protected characteristic determined appropriate by the Board.

(c) FORM.—In addition to the report made publicly available under subsection (a), the Board may submit to the appropriate congressional committees a classified annex.

One would imagine that Carter Page, whom the Republicans think was targeted because he volunteered for the Trump campaign, would be among the people bill drafters had in mind for First Amendment protect activities.

Except he wouldn’t be included, for two reasons.

First, PCLOB’s mandate is limited to counterterrorism programs. That didn’t matter for their very good Section 215 report, because they were examining only the CDR program, which itself was limited to terrorism (and Iran).

But it did matter for the Section 702 report. In fact, PCLOB ignored some of the most problematic practices under Section 702, conducted under the guise of cybersecurity, because that’s outside their mandate! It also didn’t explore the impact of NSA’s too-broad definition of targeting under the Foreign Government certificate.

In this case, unless you expand the scope of PCLOB, then this report would only report on the targets of terrorism FISA activity, not foreign intelligence FISA activity, and so not people like Carter Page.

Carter Page would also not be covered under this and a clause attempting to ensure the FISA amicus reviews applications with any First Amendment component.

(a) EXPANSION OF APPOINTMENT AUTHORITY.— Subparagraph (A) of section 103(i)(2) (50 U.S.C. 1803(i)(2)) is amended to read as follows:

‘‘(A) shall appoint an individual who has been designated under paragraph (1) to serve as amicus curiae to assist such court in the consideration of any application for an order or review that, in the opinion of the court—

‘‘(i) presents a novel or significant interpretation of the law, unless the court issues a finding that such appointment is 16 not appropriate; or

‘‘(ii) presents significant concerns with respect to the activities of a United States person that are protected by the first amendment to the Constitution, unless the court issues a finding that such appointment is not appropriate; and’’.

Here, the problem has to do with the investigation into Carter Page, and the way I understand FISA was written originally.

As I note in this post, DOJ IG didn’t figure out until 11 days after it published the Carter Page IG Report that the FBI used (and may still use) the same investigative code for both FARA — which by definition has a political component — and 18 USC 951 — which doesn’t need to have. The report as a whole had a long discussion of the standard to get beyond First Amendment considerations, as if all four Trump flunkies targeted under Crossfire Hurricane would qualify.

FISA provides that a U.S. person may not be found to be a foreign power or an agent of a foreign power solely upon the basis of activities protected by the First Amendment. 129 Congress added this language to reinforce that lawful political activities may not serve as the only basis for a probable cause finding, recognizing that “there may often be a narrow line between covert action and lawful activities undertaken by Americans in the exercise of the [F]irst [A]mendment rights,” particularly between legitimate political activity and “other clandestine intelligence activities. “130 The Report by SSCI accompanying the passage of FISA states that there must be “willful” deception about the origin or intent of political activity to support a finding that it constitutes “other clandestine intelligence activities”:

If…foreign intelligence services hide behind the cover of some person or organization in order to influence American political events and deceive Americans into believing that the opinions or influence are of domestic origin and initiative and such deception is willfully maintained in violation of the Foreign Agents Registration Act, then electronic surveillance might be justified under [“other clandestine intelligence activities”] if all the other criteria of [FISA] were met. 131

129 See 50 U.S.C. §§ 1805(a)(2)(A), 1824(a)(2)(A).

130 H. Rep. 95-1283 at 41, 79-80; FISA guidance at 7-8; see also Rosen, 447 F. Supp. 2d at 547-48 (probable cause finding may be based partly on First Amendment protected activity).

131 See S. Rep. 95-701 at 24-25. The Foreign Agents Registration Act, 22 U.S.C. § 611 et seq., is a disclosure statute that requires persons acting as agents of foreign principals such as a foreign government or foreign political party in a political or quasi-political capacity to make periodic public disclosure of their relationship with the foreign principal, as well as activities, receipts and disbursements in support of those activities.

Except it miscited the reference to the Senate Report. The citation, as written, goes to a passage of the Senate Report that says that if a potential target is acting under the direction of an intelligence service of a foreign power, they can be targeted even for their political activities.

It is the intent of this requirement that even if there is some substantial contact between domestic groups or individual citizens and a foreign power, as defined in this bill, no electronic surveillance wider this subparagraph may be authorized unless the American is acting under the direction of an intelligence service of a foreign power.

The investigation into Carter Page started because he kept sharing non-public economic information with people he knew to be Russian intelligence officers (it was probably started as some kind of economic espionage case).

That is, even before he joined the campaign, FBI had gotten beyond the bar that would treat Page’s targeting as a First Amendment concern, because the entire suspicion stemmed from Page’s explicit willingness to act at the direction of Russia’s intelligence service.

Don’t get me wrong. These are both improvements, with the amicus review for First Amendment activities especially (indeed, I suspect that’s what some of the applications that FBI withdrew in recent years pertained to).

But to do what this bill wants to do on the PCLOB report, you’d have to expand the mandate of PCLOB to cover hacking and spying — something that should happen in any case. That’s especially crucial in this case, given that one of the ethnicities most affected by FISA are Chinese Americans, but as suspected spies, not as suspected terrorists.

And if you want Carter Page to get these enhanced protections, you’d need to change how working for a foreign country affects the First Amendment calculation on FISA.

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

The Geostrategic and Historic Implications of Crypto

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If you haven’t already, you should read the superb WaPo story on Crypto, the Swiss encryption company that German and US intelligence agencies secretly owned, allowing them to degrade the encryption used by governments all over the world. The story relies on classified CIA and BND histories obtained by the paper and a German partner.

The decades-long arrangement, among the most closely guarded secrets of the Cold War, is laid bare in a classified, comprehensive CIA history of the operation obtained by The Washington Post and ZDF, a German public broadcaster, in a joint reporting project.

[snip]

The Post was able to read all of the documents, but the source of the material insisted that only excerpts be published.

The CIA and the BND declined to comment, though U.S. and German officials did not dispute the authenticity of the documents. The first is a 96-page account of the operation completed in 2004 by the CIA’s Center for the Study of Intelligence, an internal historical branch. The second is an oral history compiled by German intelligence officials in 2008.

From the 1970s until the early 2000s, the company ensured its encryption had weaknesses that knowing intelligence partners — largely the NSA — exploited. CIA retained control of the company until 2018.

The WaPo correctly puts Crypto in a lineage that includes later spying and politicized fights over which corporations run the global telecommunications system. But it curiously suggests that the US “developed an insatiable appetite for global surveillance” from the project, as if that’s a uniquely American hunger.

Even so, the Crypto operation is relevant to modern espionage. Its reach and duration helps to explain how the United States developed an insatiable appetite for global surveillance that was exposed in 2013 by Edward Snowden. There are also echoes of Crypto in the suspicions swirling around modern companies with alleged links to foreign governments, including the Russian anti-virus firm Kaspersky, a texting app tied to the United Arab Emirates and the Chinese telecommunications giant Huawei.

Any nation-state or powerful non-state actor is going to want access to as much information as it can obtain. Russia, the Gulf states, and China, as well as the unmentioned Israel, are no different.

The story is better understood, in my opinion, as a lesson in how the US, Cold War partner Germany, and several key individuals and companies who could be motivated by Cold War ideology accomplished its spying. It absolutely provides important background to current US efforts to prevent rivals from achieving hegemony over communication structures. But if you didn’t know the US is so worried about Huawei’s dominance because it gives China a way to supplant the US spying footprint, you’re not paying attention.

Some particular features:

  • Crytpo was a Swiss company. That gave it some plausible deniability.
  • The operation struggled to find cryptologists who were good, but not too good. People who could identify weaknesses in the algorithms Crypto used either had to be fired or bought off.
  • The entire scheme worked off a corruption of market forces. The predecessor to Crypto sold shitty encryption to disfavored countries, but the US made up for the lost profits. Then, as integrated circuits presented a challenge for the business, the US leveraged that to get ongoing cooperation. Then CIA and BND bought out the company via a shell company set up in Lichtenstein. To sustain its customer base, Crypto would smear competitors and bribe customers with gifts and prostitutes.
  • The US leveraged its power in the US-German partnership at the core of the operation, forcing the Germans to sell degraded products to allied governments.
  • The ideology of the Cold War proved a powerful motive for some of the key participants, leading them to work for what ultimately was the CIA for no additional funds.

Those features are worth noting as you consider where this capability moved to as Crypto became less valuable:

  • AT&T and other US backbone providers
  • Silicon Valley companies compelled under Section 702 of FISA
  • Various products supported by CIA’s investment arm, In-Q-Tel
  • SWIFT

702 is the big outlier — in that the US government leveraged existing market dominance and actually didn’t hide what was going on to those who paid attention. But that’s changing. The US government is increasingly demanding that its 702 partners — notably both Apple and Facebook — make choices dictated not by a market interest in security but by their demands.

The WaPo story cites some “successes:” nearly complete visibility on Iran, a critical advantage for the UK in the Falklands war, and visibility on Manuel Noriega as he started to outgrow his client role. One wonders what would have happened if the US or its allies had lost visibility on all those key strategic points.

WaPo focuses its challenge to this spying, however, on what the US had to have known about but overlooked: assassination, ethnic cleansing, and atrocities.

The papers largely avoid more unsettling questions, including what the United States knew — and what it did or didn’t do — about countries that used Crypto machines while engaged in assassination plots, ethnic cleansing campaigns and human rights abuses.

The revelations in the documents may provide reason to revisit whether the United States was in position to intervene in, or at least expose, international atrocities, and whether it opted against doing so at times to preserve its access to valuable streams of intelligence.

Nor do the files deal with obvious ethical dilemmas at the core of the operation: the deception and exploitation of adversaries, allies and hundreds of unwitting Crypto employees. Many traveled the world selling or servicing rigged systems with no clue that they were doing so at risk to their own safety.

I’m actually more interested in the latter case, though (though after all, the US was overlooking atrocities in Iran, Panama, and Argentina, in any case).

These atrocities were known in real time, but ideology — largely, the same Cold War ideology that convinced some of the engineers to play along quietly — served to downplay them. The ideology that excuses much of our current spying, terrorism, likewise leads many to excuse Americans and allies overlooking atrocities by our allies (but that, too, is evident without proving they’re reading the SIGINT proving it).

But the solutions to this problem have as much to do with fixing ideology and market forces behind the power structures of the world as it does with protecting the encryption that people around the world can access.

The Very Limited Republican Concern about FISA

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There are a number of FISA submissions made by the Trump Administration that the FISA Court has found problematic. They include:

March 24-27, 2017: FBI conducts queries on FISA data using identifiers for over 70,000 facilities associated with persons with access to FBI facilities and systems (noticed to the court on November 22, 2017)

April 7, 2017: Reauthorization of Carter Page FISA, signed by Jim Comey and Dana Boente, at a time when probable cause was thin and contrary evidence mounting

June 29, 2017: Reauthorization of Carter Page FISA, signed by Andrew McCabe and Rod Rosenstein, at a time when few believed the order was producing valuable intelligence and abundant contrary evidence was known

October 11, 2017: FBI conducts queries to identify cleared personnel on whom to serve process (noticed to the court on February 21, 2018)

November 22, 2017: FBI takes 8 months before notifying FISC of the March 2017 queries

December 1, 2017: FBI conducts over 6,800 queries using a group of social security numbers (noticed to the court on April 27, 2018)

December 7-11, 2017: FBI conducts queries on the identifiers of 1,600 people (noticed to the court on April 12, 2018)

Unknown date: FBI conducts queries of 57,000 identifiers (or individuals) that may not have been designed to return foreign intelligence information (noticed to the court on April 13, 2018)

February 5 and 23, 2018: FBI conducts 30 queries on potential sources (noticed to the court on June 7, 2018)

February 21, 2018: FBI conducts 45 queries on persons being considered as sources (noticed to the court on May 21, 2018)

March 27, 2018: Submission of FBI 702 querying procedures, accompanying an application that included a declaration from Christopher Wray, that fell far short of what Congress recently required

September 18, 2018: Submission of FBI 702 querying procedures that still fall short of standards mandated by Congress, including a supplemental declaration from Wray that relies, in part, on FBI’s “strong culture that places great emphasis on personnel consistently conveying true and accurate information”

Not only did both the Carter Page applications from which DOJ withdrew its probable cause claim come under the Trump Administration, but a slew of fairly alarming uses of FISA data happened under Trump as well. A bunch of them occurred under Chris Wray. Indeed, Chris Wray submitted a declaration to the FISC in September 2018 — long after there were questions about the Carter Page FISAs — suggesting the FBI shouldn’t have to write stuff down as it queries 702 data, in spite of what Congress required by law.

The Director anticipates that approach would divert resources from investigative work, delay assessment of threat information, and discourage its personnel from querying unminimized FISA information, to the detriment of public safety. Id. at 9-12. He also describes an alternative approach whereby personnel would be allowed to forgo such research and rely solely on their “personal knowledge” in making those assessments. Id. at 12. The Director expects that practice would “result in inconsistent and unreliable information in FBI systems,” id., thereby complicating other aspects of the FBI’s work – e.g., implementing its Section 702 targeting procedures. Id. at 13-14. The Director also expresses concern that such an approach would be inconsistent with the FBJ’s “strong culture that places great emphasis on personnel consistently conveying true and accurate information.” Id. at 14.

[snip]

The government further objects that requiring a written justification to examine the contents provided in response to U.S.-person queries of Section 702 information “would substantially hinder the FBI’s ability to investigate and protect against threats to national security.” Supplemental FBI Declaration at 17. Different fo1ms of hindrance are claimed.

[snip]

[At the heart of the government’s objections to the documentation requirement proposed by amici is an understandable desire to ensure that FBI personnel can] perform their work with the utmost efficiency and “connect dots” in an effort to protect the national security. Given the lessons learned following 9/11 and the Fort Hood shooting, as well as the FBI’s significant reliance on queries to effectively and efficiently identify threat streams in its holdings, the FBI is extremely concerned about anything that would impede, delay, or create a disincentive to querying FBI databases. Supplemental FBI Declaration at 7 (emphasis added).

Yet in spite of the fact that Chris Wray, himself, participated in a 18-month effort to ignore the will of Congress with respect to 702 queries, no one raised that in yesterday’s oversight hearing. Not to mention the GOP got plenty of facts wrong, such as treating FISA as a terrorism thing, and not, increasingly, the very same counterintelligence purpose used with Page.

To be sure, aside from some comments acknowledging that IG Report, Democrats weren’t raising any questions about FISA (though Jerry Nadler did thank Jim Sensenbrenner for agreeing to delay consideration of Section 215 reauthorization to allow for consideration of the IG Report).

Here’s the thing, though: The FISA Court has complained about FBI surveillance practices all occurring under Trump affecting up to 135,476 Americans.

And Republicans claiming to give a goddamn about FISA are really just concerned about one of those Americans.

Which is a pretty good indication they’re not really concerned about the surveillance at all.

Mike Flynn Seizes the Rope to Hang Himself With: Flynn’s Motion to Dismiss Carter Page’s Non-Existent Plea

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As I noted yesterday, Mike Flynn’s legal team and the government submitted a bunch of filings yesterday.

I’m collectively titling my posts on them, “Mike Flynn Seizes the Rope to Hang Himself,” which is the advice Rob Kelner gave his then-client in December 2018 when Judge Emmet Sullivan swore him in to reallocute his guilty plea, effectively arguing that if Flynn withdrew his plea, it would lead to worse consequences. Flynn’s current lawyer, Sidney Powell, argues that advice was objectively incompetent. I predict the outcome of the next few weeks will show Kelner had the better judgment.

This post from yesterday covers the government reply to Flynn’s sentencing memo.

This post will focus on Flynn’s motion to dismiss for misconduct, a 27-page motion that Flynn submitted yesterday with neither warning nor pre-approval from Sullivan. Flynn has made much of this argument before (and Sullivan has rejected it) in a filing that argued,

The government works hard to persuade this Court that the scope of its discovery obligation is limited to facts relating to punishment for the crime to which Mr. Flynn pleaded guilty. However, the evidence already produced or in the public record reveals far larger issues are at play: namely, the integrity of our criminal justice system and public confidence in what used to be our premier law enforcement institution. When the Director of the FBI, and a group of his close associates, plot to set up an innocent man and create a crime—while taking affirmative steps to ensnare him by refusing to follow procedures designed to prevent such inadvertent missteps—this amounts to conduct so shocking to the conscience and so inimical to our system of justice that it requires the dismissal of the charges for outrageous government conduct.

[snip]

As new counsel has made clear from her first appearance, Mr. Flynn will ask this Court to dismiss the entire prosecution based on the outrageous and un-American conduct of law enforcement officials and the subsequent failure of the prosecution to disclose this evidence— which it had in its possession all along—either in a timely fashion or at all.

In a footnote in yesterday’s filing, Flynn lawyer Sidney Powell explains that, no, the last time she tried this argument, which Sullivan rejected in an unbelievably meticulous 92 page opinion, wasn’t actually her motion to dismiss, this is,

Contrary to a suggestion in this Court’s recent opinion, Mr. Flynn did not previously move to dismiss the case against him. ECF No. 144 at 2. As the docket sheet and this Court’s recital of motions show, this is Mr. Flynn’s only Motion to Dismiss. In Mr. Flynn’s previous filings, he made clear he would ultimately move for dismissal, that the evidence requested in his Brady motion would further support the basis for dismissal, and that the case should be dismissed.

Particularly given that much of this repeats what Powell said in the earlier motion, the claim that this is the real motion to dismiss probably won’t sit well with Judge Sullivan. But Powell has to try again, because (as I’ll show) her motion to dismiss doesn’t actually claim that Flynn is innocent of lying to the FBI about his call with Sergey Kislyak — he says the opposite. So this motion to dismiss appears designed to explain why Flynn should not be held accountable for that lie.

Powell justifies doing so because she claims she found new damning information in the IG Report on Carter Page. (She also complains that she received Flynn’s 302s since the prior motion, but presents not a single piece of evidence from them; as I’ll show in my third post on these filings, she’s probably going to regret raising them.)

Such exculpatory evidence and outrageous misconduct includes that on December 9, 2019, the Inspector General of the Department of Justice (“DOJ”) issued its 478-page report on the “Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation” (“IG Report”).2 The IG Report illustrates the misconduct by the government as further detailed below.

[snip]

Additionally, the IG Report shows that the government long suppressed evidence of shocking malfeasance by the leadership of the FBI and Supervisory Special Agent 1 (“SSA 1”) that was favorable to Mr. Flynn’s defense. For these reasons, and those outlined in prior briefing, Mr. Flynn moves to dismiss this entire prosecution for outrageous government misconduct and in the interest of justice.

In a probably ill-considered move, Powell blames Sullivan for not considering the IG Report in his previous opinion.

Despite the defense, the government, and this Court agreeing to abate the schedule in this case because of the pending and admittedly-relevant IG Report (ECF No. 140 and this Court’s Minute Order of November 27, 2019), this Court denied Mr. Flynn’s Motion to Compel Production of Brady Evidence without allowing for additional briefing in light of that report or considering any of the deliberate government misconduct it disclosed. ECF Nos. 143 and 144. Mr. Flynn now moves to dismiss the indictment for the additional egregious misconduct documented in the IG Report, other recently produced materials, all previously briefed issues, and in the interest of justice.

A week passed between the time the IG Report came out — which has just one small section relating to Flynn — and the date Sullivan issued his opinion. It is Powell’s job to ask him to consider any new information in it, not his job to cull through the report and find out if anything is relevant. She did not do so. Which is one of many reasons why Sullivan would be in his right to just dismiss this as untimely.

As I note in this thread, much of what follows is either a repetition of complaints that Sullivan already rejected or a claim that Mike Flynn, honored General of thirty years, is actually Carter Page, maligned gadfly, because they describe things that did injure Page but did not injure Flynn and are utterly irrelevant to the lies Flynn told on January 24, 2017.

  • Asks that Sullivan rely on a Ninth Circuit opinion on the Bundy family to reconsider Brady violations he already ruled did not happen.
  • Revisits a Jim Comey comment that was briefed before Flynn pled guilty the last time and Powell’s conspiracy theories about a draft 302 that she claims differs from the notes and the released 302s which are all consistent.
  • Invokes Ted Stevens by invoking the Henry Shuelke report, which laid out problems with the Senators prosecution, but which Sullivan has already said is an inapt comparison.
  • Mixes up the 2017 FISA order that shows (in part) that Flynn, personally, presided over FISA abuses with the 2018 FISA order that shows Chris Wray’s FBI committed querying violations that affected thousands (quite possibly in an attempt to find out who leaked details of Flynn’s comments to Sergei Kislyak).
  • Claims that the Carter Page FISA allowed the FBI to illegally obtain the communications of “hundreds of people, including Mr. Flynn,” which is a claim that doesn’t show up in the IG Report (Powell cites to it “generally,” which is her tell in this motion that she’s making shit up); while it’s possible emails from the campaign (possibly group emails on National Security) involving both Page and Flynn were collected, there is zero chance any of them pertain to the lies Flynn told on January 24, 2017. Moreover, there is virtually no chance that Flynn was communicating with Carter Page after April 2017 via encrypted messaging apps — months after both had been ousted from Trump’s circles because of their problematic interactions with Russians — which is what it likely would have taken to have been collected under the applications deemed problematic by FBI.
  • Twice claims that Flynn’s obligation (which he fulfilled) to tell DIA when he went traipsing off to RT Galas in Russia equates to CIA’s designation of Carter Page as an acceptable contact and notes that Sullivan already ruled that wasn’t exculpatory on the charges before him (the government has made it clear Flynn’s DIA briefing was actually inculpatory).
  • Claims SSA1 — whom Powell asserts, probably but not necessarily correctly, is the second Agent who interviewed Flynn — supervised Crossfire Hurricane, but doesn’t note that was only until December 2016, at least four weeks before Flynn lied to FBI agents on January 24, 2017; Powell repeatedly claims, falsely, that SSA1 supervised Crossfire Hurricane during the entire period when Carter Page was under surveillance.
  • Insinuates, with no evidence, that SSA1 knew that Case Agent 1 had excluded comments from George Papadopoulos that the frothy right believes are exculpatory but which the FBI judged correctly at the time were just a cover story.
  • Claims falsely that Lisa Page had a role in opening an investigation into Flynn.
  • Complains that the FISA applications made statements about Stefan Halper that were true but not backed by paperwork in the Woods File, even though (contrary to Flynn’s conspiracy theories) Halper never spoke with Flynn as part of tihs investigation.

Pages and pages into this, Powell admits that actually all of this would matter if she were representing Carter Page, but she claims (with no evidence, and given the scope of the Page warrants, there would be none) that it nevertheless injures her client.

While Mr. Flynn’s case is not even the focus of the IG Report, the Report reveals illegal, wrongful, and improper conduct that affected Mr. Flynn, and is the subject of an ongoing criminal investigation by United States Attorney John Durham.

Even where the IG Report does describe something that affected Flynn directly — in SSA1’s inclusion in Trump’s first briefing, in part, to see what kinds of questions he was asking — Powell manages to lard it with false claims. On top of misrepresenting how long SSA1 oversaw the investigation into Trump’s flunkies (noted above and exhibited specifically below), Powell suggests that SSA1 snuck into the August 17, 2016 intelligence briefing Flynn attended as Trump’s top national security advisor and had no purpose but to observe her client.

There were two FBI agents who interviewed Mr. Flynn in the White House on January 24, 2017—Agent Peter Strzok and SSA 1. The IG Report confirms both participated in government misconduct. As explained in further detail below, not only was Strzok so biased, calculated, and deceitful he had to be terminated from Mueller’s investigation and then the FBI/DOJ, but it has also now been revealed that SSA 1 was surreptitiously inserted in the mock presidential briefing on August 17, 2016, to collect information and report on Mr. Trump and Mr. Flynn. Moreover, SSA 1 was involved in every aspect of the debacle that is Crossfire Hurricane and significant illegal surveillance resulting from it. Further, SSA 1 bore ultimate responsibility for four falsified applications to the FISA court and oversaw virtually every abuse inherent in Crossfire Hurricane— including suppression of exculpatory evidence. See generally IG Report.

[snip]

Shockingly, as further briefed below, SSA 1 also participated surreptitiously in a presidential briefing with candidate Trump and Mr. Flynn for the express purpose of taking notes, monitoring anything Mr. Flynn said, and in particular, observing and recording anything Mr. Flynn or Mr. Trump said or did that might be of interest to the FBI in its “investigation.” IG Report at 340

[snip]

More specifically, as the Inspector General explained further in his testimony to Congress on December 11, 2019, SSA 1 surreptitiously interviewed and sized-up Mr. Flynn on August 17, 2016, under the “pretext” of being part of what was actually a presidential briefing but reported dishonestly to others as a “defensive briefing.”

[snip]

Strzok and Lisa Page texted about an “insurance policy” on August 15, 2016.20 They opened the FBI “investigation” of Mr. Flynn on August 16, 2016. IG Report at 2. The very next day, SSA 1 snuck into what was represented to candidate Trump and Mr. Flynn as a presidential briefing. IG Report at 340. [my emphasis]

The overwhelming bulk of her complaint about this is that — she claims — SSA1’s participation was secret. Reading this motion, you’d think he was hidden under the couch while the briefing was conducted. His presence, of course, was in no way surreptitious. What was secret was that Flynn was under investigation and SSA1 was overseeing it.

In one of her discussions of the briefing, Powell quotes the part of the IG Report that refutes her suggestions that SSA1 was only in this briefing to observe Flynn.

In August 2016, the supervisor of the Crossfire Hurricane investigation, SSA 1, participated on behalf of the FBI in an ODNI strategic intelligence briefing given to candidate Trump and his national security advisors, including Flynn, and in a separate briefing given to candidate Clinton and her national security advisors. The stated purpose of the FBI’s participation in the counterintelligence and security portion of the briefing was to provide the recipients ‘a baseline on the presence and threat posed by foreign intelligence services to the National Security of the U.S.’ However, we found the FBI also had an investigative purpose when it specifically selected SSA 1, a supervisor for the Crossfire Hurricane investigation, to provide the FBI briefings. SSA 1 was selected, in part, because Flynn, who would be attending the briefing with candidate Trump, was a subject in one of the ongoing investigations related to Crossfire Hurricane. SSA 1 told us that the briefing provided him ‘the opportunity to gain assessment and possibly some level of familiarity with [Flynn]. So, should we get to the point where we need to do a subject interview…I would have that to fall back on.’

As the passage she quotes makes clear, that was just part of the reason why he was selected. She doesn’t mention that, as a senior counterintelligence agent, SSA1 was appropriate to give the briefing in any case, and in fact did give the equivalent first briefing to Hillary, as well.

In one place, however, Powell totally misrepresents what the purpose of this briefing was claiming that it was the defensive briefing about specific threats to the candidate.

While SSA 1’s stated purpose of the presidential briefing on August 17, 2016, was “to provide the recipients ‘a baseline on the presence and threat posed by foreign intelligence services to the National Security of the U.S,’” IG Report at xviii (Executive Summary), the IG Report confirmed that, in actuality, the Trump campaign was never given any defensive briefing about the alleged national security threats. IG Report at 55. Thus, SSA 1’s participation in that presidential briefing was a calculated subterfuge to record and report for “investigative purposes” anything Mr. Flynn and Mr. Trump said in that meeting. IG Report at 408. The agent was there only because Mr. Flynn was there. IG Report at 340. Ironically, Mr. Flynn arranged this meeting with ODNI James Clapper for the benefit of candidate Trump.

As the IG Report makes clear, these are different things. The IG Report even provides several different explanations for why the FBI did not give Trump a defensive briefing that Russia was trying to influence his campaign, but which Powell doesn’t include. Andrew McCabe’s explanation was particularly prescient.

[T]he FBI did not brief people who “could potentially be the subjects that you are investigating or looking for.” McCabe told us that in a sensitive counterintelligence matter, it was essential to have a better understanding of what was occurring before taking an overt step such as providing a defensive briefing.

You couldn’t brief Trump on a potential Russian threat with Flynn present because Flynn was considered — because of his past close ties to the GRU and his paid appearances with Russian entities, including one where he met Putin — one of the most likely people for Russia to have alerted about the email hack-and-dump plan. And, as I noted, there was a bunch of language about counterintelligence issues in the government’s original sentencing memo specifically pertaining to Flynn that should concern him if he weren’t so busy producing fodder for the frothy right. So, in fact, the FBI was right to worry (and I suspect we may hear more about this).

Moreover, as this entire effort to blow up the plea deal emphasizes, Flynn turned out to be an egregious counterintelligence risk for other reasons, as well: the secret deal he was arranging with Turkey even as this briefing occurred, which he explained, at length, under oath, to the grand jury. That is, this proceeding makes it clear that the FBI was right not to trust Mike Flynn, because, days before this briefing, his firm had committed, in secret to working on a frenemy government’s payroll.

This is tangential to Powell’s trumped up complaints about the only thing the IG Report says that directly affected her client. But — as with so much of this stunt — my suspicion is that if she presses this issue it will backfire in spectacular fashion.

In any case, the main takeaway from this motion to dismiss the plea is that virtually all the new stuff that Judge Sullivan hasn’t already ruled was irrelevant in meticulous fashion doesn’t affect Mike Flynn, it affects Carter Page. And the stuff that does affect Flynn directly is probably not something he wants to emphasize before Sullivan weighs the gravity of his lies.

More importantly, for the motion to withdraw his plea, nothing here undercuts the fact that Mike Flynn pled guilty to his lies about Russia.

Joshua Schulte Spoke Positively of Edward Snowden the Day Snowden Came Forward

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Here I thought that Joshua Schulte’s lawyers had finally come up with a decent argument, that Paul Rosenzweig’s testimony would be pointless to prove that Schulte, in choosing to leak to WikiLeaks, intended to damage the US because the government would have to prove Schulte knew of WikiLeaks when he allegedly first stole the CIA documents in May 2016.

But after pointing out that Schulte’s lawyers already blew their chance to make that argument, in a response the government  then pointed out how bad this argument is: because Schulte’s lawyers have already admitted that, “of course, Mr. Schulte knew” about Chelsea Manning’s leaks.

As an initial matter, the defendant’s Reconsideration Motion directly contradicts the argument he made in his original motions in limine concerning Mr. Rosenzweig’s testimony. The defendant argues in the instant motion that Mr. Rosenzweig’s testimony should not be admitted because there is no evidence that the defendant knew of, for example, Chelsea Manning’s disclosures to WikiLeaks. In his original opposition to the Government’s motions in limine, however, the defendant argued the exact opposite:

Next, the government says that it intends to introduce evidence of Mr. Schulte’s “knowledge of [Ms.] Manning’s leak.” Gov. Res. 11. The release of documents by Ms. Manning was front page news in every major news publication for numerous days. Of course, Mr. Schulte knew about it; so did everyone else who picked up a newspaper. It is not clear what the expert would have to add to this information. (Dkt. 242 at 44).

Worse, the government lays out not just that Schulte wrote about both Manning’s leaks to WikiLeak and Edward Snowden’s leaks, but discloses that they intend to introduce those chats at trial.

Moreover, even setting aside the dubious assertion that a member of the U.S. intelligence community could have been completely unaware of WikiLeaks’ serial disclosures of classified and sensitive information and the resulting harm, the Government’s proof at trial will include evidence that the defendant himself was well aware of WikiLeaks’ actions and the harms it caused. For example, WikiLeaks began to disclose classified information Manning provided to the organization beginning in or about April 2010, including purported information about the United States’ activities in Afghanistan. In electronic chats stored on the defendant’s server, the defendant discussed these disclosures. For example, on August 10, 2010, the defendant wrote in a chat “you didn’t read the wikileaks documents did you?” and, after that “al qaeda still has a lot of control in Afghanistan.” In addition, on October 18, 2010, the defendant had another exchange in which he discussed Manning’s disclosures, including the fact that the information provided was classified, came from U.S. military holdings, and that (according to the defendant) it was easy for Manning to steal the classified information and provide it to WikiLeaks. Similarly, in a June 9, 2013 exchange, the defendant compared Manning to Edward Snowden, the contractor who leaked classified information from the National Security Agency, and stated, in substance and in part, that Snowden, unlike Manning, “didnt endanger in [sic] people.”

Effectively, the government is going to show that Schulte — who like Snowden worked at both CIA and NSA (though in reverse order) — had decided the day that Snowden revealed himself that he hadn’t endangered someone.

I suggested in this post that the government appears to be preparing to use Schulte as an exemplar of an ongoing conspiracy, complete with their reliance on organized crime precedents.

[T]he government is preparing to argue that Schulte intended to harm the United States when he leaked these files to WikiLeaks, a stronger level of mens rea than needed to prove guilt under the Espionage Act (normally the government aims to prove someone should have known it could cause harm, relying on their Non-Disclosure Agreements to establish that), and one the government has, in other places, described as the difference between being a leaker and a spy.

To make that argument, the government is preparing to situate Schulte’s leaks in the context of prior WikiLeaks releases, in a move that looks conspicuously like the kind of ongoing conspiracy indictment one might expect to come out of the WikiLeaks grand jury, one that builds off some aspects of the existing Assange indictment.

That is, the government appears to be using Schulte to lay out their theory — rolled out in the wake of the Vault 7 leaks — that WikiLeaks is a non-state hostile intelligence service.

To be sure, there’s nothing in the least bit incriminating about talking about Snowden in real time. But it will make it a lot easier to hold Schulte accountable for leaking stuff in a far more damaging way in 2016 than Snowden did in 2013.

As I disclosed in 2018, I provided information to the FBI in 2017.