The Gina Haspel Honorary 2020 Intelligence Authorization Might Criminalize Linked In Resumes

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The Intelligence Authorization for 2018-2020 is actually not named after CIA Director Gina Haspel. But it might as well be for the way it bears the marks of the first female head of an Intelligence Agency. It offers 12 weeks of paid parental leave for Intelligence personnel (a good thing!) and it also imposes a new rule prohibiting someone nominated to a Senate-confirmed position from making classification determinations about information needed to assess the nominees record, as Haspel did when she hid information on her role in the torture program during her own confirmation process.

But the Haspel related part of the authorization that has (rightly) gotten the most attention — such as in this NYT piece — is a move designed to dramatically expand the types of people covered under the Intelligence Identities Protection Act, which currently prohibits sharing the identities of classified intelligence officers who’ve spent time overseas in the last five years, to cover everyone — past or present — whose relationship with US intelligence is classified.

Most of the concern about the measure focuses — as highlighted in Ron Wyden’s concerns laid out in the bill report — on avoiding accountability for torture (his comment implicitly applies to both Haspel and torture architects Mitchell and Jessen).

I am concerned about a new provision related to the Intelligence Identities Protection Act (IIPA). In 2010, I
worked to pass legislation to increase the penalties for violations of the IIPA. This bill, however, expands the bill so that it applies indefinitely, including to individuals who have been in the United States for decades and have become senior management or have retired. I am not yet convinced this expansion is necessary and am concerned that it will be employed to avoid accountability. The CIA’s request that the Committee include this provision, which invoked “incidents related to past Agency programs, such as the RDI [Rendition, Detention and Interrogation] investigation,” underscores my concerns.

While I agree with Wyden that the intent of this measure is about shielding the CIA from accountability, I think the measure would have two other unintended consequences.

First, I think it more likely that Julian Assange will beat some of the charges against him. (Let me be very clear, for the charges this would affect — which I lay out under Theory Three here — I think this is a good thing.) The justification for the change liberated by Charlie Savage actually mentions WikiLeaks by name.

Undercover Agency officers face ever-evolving threats, including cyber threats. Particularly with the lengths organizations such as WikiLeaksare willing to go to obtain and release sensitive national security information, as well as incidents related to past Agency programs, such as the RDI investigation, the original congressional reasoning mentioned above for a narrow definition of “covert agent” no longer remains valid.

This language raises real questions for me about whether CIA really understands WikiLeaks, not least because WikiLeaks is not going to greater lengths than other media outlets to facilitate the sharing of information (what happens before and after that is another issue).

But one way or another, if this bill were to pass, it would pass after Assange got charged with disclosing databases of sensitive identities. (The timing on this is rather suspect: SSCI passed the authorization on May 14, Burr reported it to the full Senate on May 22, and Assange’s superseding indictment was approved by the grand jury on May 23.) It would be child’s play for Assange’s attorneys (and he has very good attorneys) to argue that the timing is proof that disclosing the identities of most of the people in those databases — who were sources rather than CIA officers — was not illegal at either the time he did it or the time he was charged for it. In addition, passing this bill would reiterate Congress’ belief, now in 2019, that it believes only US citizens should be protected in this way; Assange is accused of disclosing the identities of foreigners, not Americans.

So this law, if it passes, would likely make it easier for Assange to beat these charges, but make anyone else doing it — even if for good reasons and after considering the risk — a criminal.

It’s the other presumably unintended consequence of this bill that I think is even more problematic. It would criminalize all sorts of ways that former intelligence officials publicly identify themselves. The current law includes an exception for those who identify themselves as covert agents, meaning the expanded definition should not be used to prevent people from disclosing their own past affiliation with the agency (to the extent their Non-Disclosure Agreements don’t prohibit it).

It shall not be an offense under section 601 for an individual to disclose information that solely identifies himself as a covert agent.

It also generally requires malice on the part of the person releasing identities. Nevertheless, given the way that the government already uses past classified work to restrict people for the rest of their life, it is not inconceivable that the government would come to use this law to punish others who provide platforms for former intelligence personnel to talk about that openly, like Linked In. Imagine a situation, for example, where the IC deems making it easier for former intelligence professionals to find better paying jobs in the private sector to be, “a pattern of activities intended to identify and expose covert agents and with reason to believe that such activities would impair or impede the foreign intelligence
activities of the United States.” In such a situation, Linked In might be charged under a newly expanded IIPA.

Given the vast number of former intelligence personnel who move into the private sector and the degree to which it has become commonplace to discuss those past affiliations openly, the criminalization of sharing of those identities poses a particular risk. That’s definitely not the point of this bill. But by lowering the bar for who counts as covert and making covert status permanent, it certainly could be used for such ends in the future.

Maria Butina’s Legal Team Embraces Disinformation (with Help from Russia)

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One key prong of Republican propaganda attempting to discredit the Mueller investigation has been to claim Trump associates were targeted by informants. Perhaps the most brazen example was when Roger Stone claimed a Russian whose offer of dirt he entertained (but claims to have refused to pay for) was an FBI informant. But George Papapdopoulos has spawned an entire subindustry of such claims.

It appears that Maria Butina’s attorneys have adopted that approach. In a letter to her attorneys the prosecutors posted to the docket the other day, they insist (as DOJ has had to insist to Republicans in Congress) that they are not sitting on evidence of approaches by informants.

During our previous discussions, you have advanced certain hypothetical scenarios involving your client, including a supposed “dangle” operation or the acquisition of exculpatory information from “Cis,” which we take to mean confidential government informants. It appeared at the time of our discussions, that you based these ideas not on firsthand knowledge of any events, but rather on speculation based on claims made in some unidentified media articles. Inexplicably, however, in your October 18, 2018 email, you–for the first time–firmly assert that “[w]e know this information exists [and] have called it out by name…” [emphasis added]. The government was surprised by this newly adamant assertion, and we invite you to provide us any additional information you may have concerning the provenance or existence of the information you request.

Notwithstanding its speculative nature, the government took your original request seriously and made specific inquiries about the hypothetical scenarios you advanced. Regarding the scenarios described in your October 18, 2018 email, based on our reviews to date, we are not aware of any information that would trigger any disclosure obligations regarding either a “dangle,” successful or otherwise, or information obtained from any confidential informant. We are aware of no surveillance targeting your client that occurred prior to in or around [redacted] We will obviously continue to review the government’s holdings for such information, as well as any additional surveillance records of your client and we will continue to discuss with you any other materials that you consider potentially exculpatory. If that ongoing review yields information that should be disclosed to you, we will certainly do so.

Don’t get me wrong. DOJ has a history of playing games with discovery, or of interpreting discovery narrowly so as to hide other prongs of an investigation. So the allegation from Butina’s lawyers, by itself, is not outrageous.

Except it seems to be a part of the Devin Nunes/Mark Meadows/Jim Jordan propaganda effort in Congress, driven by a bunch of half-wits who leak information that they don’t understand.

Indeed, this incident raises real questions for me on whether the House effort has now taken not only to defending Donald Trump, but also Maria Butina, an alleged foreign spy whose own writings indicate Putin knew of her operation.

Meanwhile, DOJ’s letter to Butina’s team reveals that they have not picked up a hard drive of discovery DOJ made available a month ago.

With respect to materials provided to you so far, we have made an FBI CART examiner available to you to help you navigate the electronic evidence, and we made a second hard drive of electronic evidence available to you over a month ago, which you have thus far reclined to retrieve.

The claim that Butina’s team has left evidence sitting for a month comes just days before Russia’s Foreign Affairs spokesperson, Maria Zakharova, claimed that DOJ has not handed over discovery to her and used that to claim DOJ is treating her unfairly.

It is baffling that the court considering Maria Butina’s case has not yet handed over the case material to her, although the hearing is scheduled for November 13. Unfortunately, this gives us yet another reason to doubt the impartiality of American justice system.

Again, it is not unheard of for DOJ to play games with discovery. But in this case, particularly in context of obvious propaganda serving Trump and other Republicans’ interest, it seems like Butina’s defenders both in and outside the country have decided on a disinformation strategy rather than a direct defense of her case.

Update: The parties just asked for Butina’s case to be put off for three weeks to deal with discovery. Maybe in the interim, the government will find the evidence of informants sidling up to Butina that the claim is not exculpatory.

Sometimes a Plea Is Just a Plea: The Ongoing Criminal Exposure of Mueller’s “Cooperating” Witnesses

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One of the most interesting details from the government’s George Papadopoulos Sentencing Memo released last night is this passage, stating that Papadopoulos’ plea was not a standard cooperation agreement.

The plea agreement entered into by the government and the defendant was not a standard cooperation agreement, and the government did not agree to make a motion under U.S.S.G. § 5K1.1 based on cooperation by the defendant. Nevertheless, the government agreed to “bring to the Court’s attention at sentencing the defendant’s efforts to cooperate with the Government, on the condition that [the defendant] continues to respond and provide information regarding any and all matters as to which the Government deems relevant.” (Plea Agreement p. 4). Pursuant to this agreement, the Government provides the Court with the following information.

[snip]

The defendant did not provide “substantial assistance,” and much of the information provided by the defendant came only after the government confronted him with his own emails, text messages, internet search history, and other information it had obtained via search warrants and subpoenas well after the defendant’s FBI interview as the government continued its investigation. The defendant also did not notify the government about a cellular phone he used in London during the course of the campaign – that had on it substantial communications between the defendant and the Professor – until his fourth and final proffer session.

While there had been some discussion about what kind of plea deal Papadopoulos got, this statement seems to say that Papadopoulos didn’t offer up any specific cooperation against co-conspirators. Rather, the deal was simply that if he offered up his cooperation about his own actions, the government would tell the court that he did so, with no obligation to ask the court for any downward sentencing. The deal, then, was to limit his exposure to just one false statements charge, rather than the multiple false statements and obstruction charge he could have gotten for trying to confuse the FBI.

Importantly, the deal only applied to conduct specified in the offense — that is, the lies to the FBI and the obstruction of justice by hiding his Facebook and cell phone data. While his statement of offense includes much of his discussion with Russian assets about setting up a meeting, it says nothing about other conduct, such as accepting $10,000 from a suspected Israeli asset, or his ongoing negotiations with Sergei Millian, basically to spy on the Trump administration in exchange for a monthly payment (which was conditioned on getting a job in the administration, which is one of the reasons — the government suggests in the memo — why Papadopoulos may have lied to the FBI in January 2017).

That is, Papadopoulos not only faces prison time if the court accepts the government’s recommended sentence, but he may have ongoing exposure for foreign agent or conspiracy charges not covered by this plea agreement.

He made a deal to get several false statements and obstruction charges turned into one, but he didn’t even capitalize on that deal, and may still face additional legal risk tied to the Russian tampering.

That led me to compare the language for all the other plea deals Mueller’s team has made (something NYCSouthpaw started to do in this thread in February). It’s clear that Alex van der Zwaan got the least out of his plea deal (though he may have cooperated more in getting to that deal, which would have been important given his foreign status). That’s significant, because the prosecutor compared van der Zwaan to Papadopoulos in their memo.

The other three plea deals — Mike Flynn, Richard Pinedo (for identity theft tied to the Internet trolls), and Rick Gates — do obligate the government to submit a 5K statement for downward departure on sentencing if the person provides substantial cooperation.

But Pinedo and Flynn’s deals are limited just to the statement of offense. In Flynn’s case, his statement includes several lies to the FBI and his failure to register under FARA, but not a lot of other known conduct, even aside from any conspiracy involving Russia.

Only Gates’ plea includes broad forgiveness for criminal conduct (though the charges he pled to also include more significant penalties than Flynn and Papadopoulos). That’s yet another sign that he offered quite a bit in his proffer, well beyond incriminating Paul Manafort.

I’ve been nudging the attentive lawyers to explain what this means in terms of ongoing exposure. But if I were Mike Flynn, the Papadopoulos example might really incentivize me to be more cooperative.

George Papadopoulos:

In consideration of your client’s guilty plea to the above offense, your client will not be further prosecuted criminally by this Office for the conduct set forth in the attached Statement of the Offense.

No government obligation section beyond,

agreeing to bring to the Court’s attention at sentencing the defendant’s efforts to cooperate with the Government, on the condition that your client continues to respond and provide information regarding any and all matters as to which the Government deems relevant.

Mike Flynn:

In consideration of your client’s guilty plea to the above offense, your client will not be further prosecuted criminally by this Office for the conduct set forth in the attached Statement of the Offense.

5K language included.

Alex van der Zwaan:

In consideration of your client’s guilty plea to the above offense, your client will not be further prosecuted criminally by this Office for the conduct set forth in the attached Statement of the Offense, for any other false statements made by him to the Office on November 3 and December 1, 2017, any destruction, deletion, and withholding of documents and evidence in connection with requests by this Office or his law firm, and any violations of the Foreign Agent Registration Act or other law arising from the preparation and/or roll out of the Tymoshenko report for the Ukraine Ministry of Justice.

No government obligation section.

Richard Pinedo:

In consideration of your client’s guilty plea to the above offense, your client will not be further prosecuted crininally by this Office for the conduct set forth in the attached Statement of the Offense.

5K language included.

Rick Gates:

In consideration of your client’s guilty plea to the above offenses, and upon the completion of full cooperation as described herein, no additional criminal charges will be brought against the defendant for his heretofore disclosed participation in criminal activity, including money laundering, false statements, personal and corporate tax and FBAR offenses, bank fraud, and obstruction of justice. In addition, subject to the terms of this Agreement, at the time of sentence, the Government will move to dismiss the remaining counts of the Indictment in this matter. In addition, the Office will move promptly to dismiss without prejudice the charges brought against your client in the Eastern District of Virginia and your client waives venue as to such charges in the event he breaches this Agreement.

5K language included.

The Frothing Right Prefers Oleg Deripaska as an FBI Asset to Christopher Steele

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If John Solomon were still doing journalism, the lede of this piece would be that the FBI interviewed Oleg Deripaska in September 2016, even as the Russian operation to tamper in the election was ongoing.

Two months before Trump was elected president, Deripaska was in New York as part of Russia’s United Nations delegation when three FBI agents awakened him in his home; at least one agent had worked with Deripaska on the aborted effort to rescue Levinson. During an hour-long visit, the agents posited a theory that Trump’s campaign was secretly colluding with Russia to hijack the U.S. election.

“Deripaska laughed but realized, despite the joviality, that they were serious,” the lawyer said. “So he told them in his informed opinion the idea they were proposing was false. ‘You are trying to create something out of nothing,’ he told them.” The agents left though the FBI sought more information in 2017 from the Russian, sources tell me. Waldman declined to say if Deripaska has been in contact with the FBI since Sept, 2016.

Telling that story would make it clear that the FBI pursued an investigation into Russian tampering at the source, by questioning Russians suspected of being involved. Republicans should be happy to know the FBI was using such an approach.

But Solomon isn’t doing journalism anymore — even his employer now acknowledges that that’s true. After complaints about his propaganda (in part, attacking the Mueller investigation) he has been relegated to the opinion section of The Hill.

Not before his last effort to impugn Mueller, though, claiming that because the FBI used Deripaska as a go-between in a 2009 effort to rescue Robert Levinson, Mueller is prevented from investigating him now.

In 2009, when Mueller ran the FBI, the bureau asked Russian oligarch Oleg Deripaska to spend millions of his own dollars funding an FBI-supervised operation to rescue a retired FBI agent, Robert Levinson, captured in Iran while working for the CIA in 2007.

[snip]

Deripaska’s lawyer said the Russian ultimately spent $25 million assembling a private search and rescue team that worked with Iranian contacts under the FBI’s watchful eye. Photos and videos indicating Levinson was alive were uncovered.

Then in fall 2010, the operation secured an offer to free Levinson. The deal was scuttled, however, when the State Department become uncomfortable with Iran’s terms, according to Deripaska’s lawyer and the Levinson family.

FBI officials confirmed State hampered their efforts.

“We tried to turn over every stone we could to rescue Bob, but every time we started to get close, the State Department seemed to always get in the way,” said Robyn Gritz, the retired agent who supervised the Levinson case in 2009, when Deripaska first cooperated, but who left for another position in 2010 before the Iranian offer arrived. “I kept Director Mueller and Deputy Director [John] Pistole informed of the various efforts and operations, and they offered to intervene with State, if necessary.”

FBI officials ended the operation in 2011, concerned that Deripaska’s Iranian contacts couldn’t deliver with all the U.S. infighting.

Even assuming Solomon’s tale — which is that offered by Deripaska’s lawyer — is factually correct, what this means is that the FBI used Deripaska as an asset, just like they’ve used Christopher Steele as a source. Of course, using ex-MI6 officer Steele, for the frothy right, is a heinous crime. But using a Russian billionaire, according to a propagandist who has been regurgitating Trump spin since he was elected, is heroic. Perhaps that’s why a Trump crony, Bryan Lanza, is also trying to help Deripaska’s company beat the sanctions recently imposed on him.

Of course, Solomon doesn’t consider the possibility that FBI and State balked in 2011 because Deripaska himself had proven unreliable. Which would explain a lot of what transpired in the years since. Nor does he consider — nor has the frothy right generally — the possibility that any damning disinformation in the Steele dossier ended up there in part via Deripaska.

Certainly, Deripaska’s own asset, Paul Manafort, seemed prepared to capitalize on that disinformation.

As the Mueller investigation has proceeded, we’ve gotten just a glimpse of how the spooks trade in information, involving allies like Steele and Stefan Halper, and more sordid types like George Nader (who appears to have traded information to get out of consequences for a child porn habit), Felix Sater (who claims, dubiously, to be offering full cooperation with Mueller based on years of working off his own mob ties), and even Deripaska.

Curiously, it’s Deripaska that propagandists spewing the White House line seem most interested in celebrating.

Update: Chuck Ross did a story based on Solomon’s report, and did note that the FBI questioned Deripaska in September 2016. But, fresh off complaining that I had called him out for doing this in another story, turns a story about Manafort and his long-time Russian associate into a story about the dossier (in which Deripaska is not named).

In September 2016, FBI agents approached Russian oligarch Oleg Deripaska to ask about allegations President Donald Trump’s campaign was colluding with the Russian government to influence the election, according to a new report.

Deripaska, who was at his apartment in New York City for the interview, waved the three agents off of the collusion theory, saying there was no coordination between the Trump team and Kremlin, The Hill reported Monday.

The agents, one of whom Deripaska knew from a previous FBI case, said they believed former Trump campaign chairman Paul Manafort was involved in the conspiracy, an allegation made in the infamous Steele dossier.

Ross then continues on, dossier … dossier … dossier … dossier … dossier, including this claim not supported by any public evidence.

It is also an indicator of how they investigated some of the allegations made in the dossier.

By the time September 2016 rolled around, it had been two months since Deripaska go-between Konstantin Kilimnik emailed (probably via a PRISM service)  Manafort about paying off his debt to Deripaska by giving inside dirt on the campaign. There were meetings in NYC. In September 2016, Alex Van der Zwaan was actively covering up the ongoing efforts to hide Manafort’s involvement in Ukraine’s persecution of Yulia Tymoshenko, and doing so in the servers of a law firm going to pains to clear their name.

And all that’s before you consider what hasn’t been shared with Congress and leaked to the press.

Meanwhile, the only mention of Deripaska in the dossier by September was an undated July report claiming that Manafort was happy to have the focus on Russia because the Trump corruption in China was worse (and also suggesting that Manafort used Carter Page as a go-between with Russia); given reports about when Steele shared reports with the FBI, it’s not clear the Bureau would have had that yet. In any case, the more extensive discussion of Manafort comes later, after the Deripaska interview.

Had Manafort been a surveillance focus solely for the dossier (something that wasn’t even true for Page), you’d have heard that by now.

Every time Mueller submits a filing explaining how the Manafort Ukraine investigation came out of the Russia investigation, he has mentioned Deripaska. Trump’s own team leaked questions suggesting that Mueller is sitting on information that Manafort reached out to Russians asking for help (and Deripaska was among those we know he was in touch with).

And yet, after competently noting that the FBI interviewed Deripaska, Ross made the crazypants suggestion that any suspicion of Manafort would arise from the dossier and not abundant other known evidence.

Did Mueller’s Team Decide They No Longer Need Manafort to Flip?

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One detail of the attacks TS Ellis made on Mueller’s team on Friday has gotten a lot of attention: his insinuation that Mueller’s team was only charging Manafort with bank fraud and tax evasion to get him to flip on Trump.

THE COURT: Apparently, if I look at the indictment, none of that information has anything to do with links or coordination between the Russian government and individuals associated with the campaign of Donald Trump. That seems to me to be obvious because they all long predate any contact or any affiliation of this defendant with the campaign. So I don’t see what relation this indictment has with anything the special prosecutor is authorized to investigate.

It looks to me instead that what is happening is that this investigation was underway. It had something. The special prosecutor took it, got indictments, and then in a time-honored practice which I’m fully familiar with — it exists largely in the drug area. If you get somebody in a conspiracy and get something against them, you can then tighten the screws, and they will begin to provide information in what you’re really interested in. That seems to me to be what is happening here. I’m not saying it’s illegitimate, but I think we ought to be very clear about these facts and what is happening.

[snip]

THE COURT: That’s right, but your argument says, Even though the investigation was really done by the Justice Department, handed to you, and then you’re now using it, as I indicated before, as a means of persuading Mr. Manafort to provide information.

It’s vernacular by the way. I’ve been here a long time. The vernacular is to sing. That’s what prosecutors use, but what you’ve got to be careful of is they may not just sing. They may also compose.

[snip]

THE COURT: It factually did not arise from the investigation. Now, saying it could have arised under it is another matter, but factually, it’s very clear. This was an ongoing investigation. You all got it from the Department of Justice. You’re pursuing it. Now I had speculated about why you’re really interested in it in this case. You don’t really care about Mr. Manafort’s bank fraud. Well, the government does. You really care about what information Mr. Manafort can give you that would reflect on Mr. Trump or lead to his prosecution or impeachment or whatever. That’s what you’re really interested in.

In spite of Ellis’ repeated suggestion that Mueller was just trying to get Manafort to flip and that that might not be illegitimate, Michael Dreeben never took Ellis’ bait, each time returning to the government’s argument that the indictment was clearly authorized by Rod Rosenstein’s  initial appointment memo, and in any case Manafort can’t challenge his indictment based off whether Mueller adhered to internal DOJ regulations.

THE COURT: Where am I wrong in that regard?

MR. DREEBEN: The issue, I think, before you is whether Mr. Manafort can dismiss the indictment based on his claim.

[snip]

In any event, your point, if I can distill it to its essence, is that this indictment can be traced to the authority the special prosecutor was given in the May and August letters. That, as far as you’re concerned, is the beginning and end of the matter.

MR. DREEBEN: Yes, Your Honor, it is the beginning and almost the end. And this is my last point, I promise.

THE COURT: All right.

MR. DREEBEN: The special counsel regulations that my friend is relying on are internal DOJ regulations. He referred to them as if they’re a statute. I want to be clear. They are not enacted by Congress. They are internal regulations of the Department of Justice.

Dreeben’s refusal to engage is all the more striking given one of the differences between the 45-page government response dated April 2 for Manafort’s DC challenge and the 30-page government response dated April 10 for Manafort’s EDVA challenge.

The two briefs are very similar and in some passages verbatim or nearly so. The DC version has more discussion of the Acting Attorney General’s statutory authority to appoint a Special Counsel — language like this:

Finally, Manafort’s remedial arguments lack merit. The Acting Attorney General had, and exercised, statutory authority to appoint a Special Counsel here, see 28 U.S.C. §§ 509, 510, 515, and the Special Counsel accordingly has authority to represent the United States in this prosecution. None of the authorities Manafort cites justifies dismissing an indictment signed by a duly appointed Department of Justice prosecutor based on an asserted regulatory violation, and none calls into question the jurisdiction of this Court.

It includes a longer discussion about how a Special Counsel differs from a Ken Starr type Independent Counsel. It cites some DC-specific precedents. And in general, the discussion in the DC brief is more extensive than the EDVA.

Generally, the differences are probably explained by differing page limits in DC and EDVA.

But along the way, an interesting passage I noted here got dropped: in addition to the general language about a special counsel appointment including the investigation of obstruction of that investigation, the DC brief noted the underlying discussion on Special Counsel regulations envisions the prosecution of people if “otherwise unrelated allegations against a central witness in the matter is necessary to obtain cooperation.”

[I]n deciding when additional jurisdiction is needed, the Special Counsel can draw guidance from the Department’s discussion accompanying the issuance of the Special Counsel regulations. That discussion illustrated the type of “adjustments to jurisdiction” that fall within Section 600.4(b). “For example,” the discussion stated, “a Special Counsel assigned responsibility for an alleged false statement about a government program may request additional jurisdiction to investigate allegations of misconduct with respect to the administration of that program; [or] a Special Counsel may conclude that investigating otherwise unrelated allegations against a central witness in the matter is necessary to obtain cooperation.” 64 Fed. Reg. at 37,039. “Rather than leaving the issue to argument and misunderstanding as to whether the new matters are included within a vague category of ‘related matters,’ the regulations clarify that the decision as to which component would handle such new matters would be made by the Attorney General.” Id.9

9 The allusion to “related matters” refers to the Independent Counsel Act’s provision that the independent counsel’s jurisdiction shall include “all matters related to” the subject of the appointment (28 U.S.C. § 593(b)(3)), which prompted the D.C. Circuit to observe that “the scope of a special prosecutor’s investigatory jurisdiction can be both wide in perimeter and fuzzy at the borders.” United States v. Wilson, 26 F.3d 142, 148 (D.C. Cir.), cert. denied, 514 U.S. 1051 (1995).

This exclusion, too, likely arises from page limits (and its exclusion may explain why Dreeben didn’t point to it in Friday’s argument).

But given Ellis’ focus on it, I find the exclusion notable.

Again, it’s most likely this is just a decision dictated by page limits. But it’s possible that Mueller’s team believed this language less important to include in any decisions issued in EDVA than DC. For example, the existing cooperation agreements were all signed in DC, even where (with George Papadopoulos and Richard Pinedo) at least some of the crimes occurred elsewhere. If Manafort ever flips, that plea agreement will presumably go through DC as well.

Or maybe, given Rick Gates’ cooperation, Mueller’s team has decided they can proceed without Manafort flipping, and instead send him to prison the same way Al Capone went: with tax charges rather than the most heinous crimes.

702 Reauthorization Bill: Why a Back Door Fix for Criminal Searches Is Meaningless

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In this post, I explained how the House Judiciary Committee Section 702 reauthorization bill only closes the back door search loophole for “quer[ies] for evidence of a crime.” In addition, they let the government define what a “query reasonably designed for the primary purpose of returning foreign intelligence information” is, which means they’re basically punting on defining it themselves until 2023.

Given that treatment, the back door search fix is virtually useless, because for every search that might return the communications of an American, the government can always claim they’re considering recruiting the American as an informant.

Any communication queryable by back door search by definition involves a person of interest for a foreign intelligence reason

To understand why, first remember why FBI would get this information in the first place. They can only get raw 702 data if they have an active full investigation — and by definition, the targets of that that active full investigation are going to be targeted for the same reasons the target would be targeted by NSA, because they are of national security interest, pertaining to counterterrorism, counterproliferation, and counterintelligence/nation-state hacking.

Thus, any American whose communications might come up in a back door search will — by definition — be someone talking to a target of interest. That doesn’t mean they’re talking to a “bad guy,” as US national security professionals insist on speaking of adversaries. They’re just someone who has foreign intelligence information related to one of those three-plus topics.

Since 2002, the government has insisted that any crime — including rape — can be foreign intelligence information

The precedent that determined the limits of the government’s use of FISA-obtained information in criminal proceedings came in the 2002 In Re Sealed case challenge where the FISA Court of Review deemed the PATRIOT Act’s adoption of “significant purpose” language in FISA targeting to permit the sharing of information for criminal purposes.

As part of that case, the government claimed it could use criminal information to recruit a foreign spy.

Thus, for example, where information is relevant or necessary to recruit a foreign spy or terrorist as a double agent, that information is “foreign intelligence information” if the recruitment effort will “protect against” espionage or terrorism.

[snip]

Whether the government intends to prosecute a foreign spy or recruit him as a double agent (or use the threat of the former to accomplish the latter), the investigation will often be long range, involve the interrelation of various sources and types of information, and present unusual difficulties because of the special training and support available to foreign enemies of this country. [my emphasis]

During the hearing, FISCR judge Laurence Silberman tried to get Solicitor General Ted Olson to envision some kind of crime that couldn’t be used for foreign intelligence purpose, suggesting rape. But even that, Olson argued, could be deemed foreign intelligence information, because the government could use evidence of rape to coerce someone to become an informant.

OLSON: And it seems to me, if anything, it illustrates the position that we’re taking about here. That, Judge Silberman, makes it clear that to the extent a FISA-approved surveillance uncovers information that’s totally unrelated — let’s say, that a person who is under surveillance has also engaged in some illegal conduct, cheating —

JUDGE LEAVY: Income tax.

SOLICITOR GENERAL OLSON: Income tax. What we keep going back to is practically all of this information might in some ways relate to the planning of a terrorist act or facilitation of it.

JUDGE SILBERMAN: Try rape. That’s unlikely to have a foreign intelligence component.

SOLICITOR GENERAL OLSON: It’s unlikely, but you could go to that individual and say we’ve got this information and we’re prosecuting and you might be able to help us. I don’t want to foreclose that.

JUDGE SILBERMAN: It’s a stretch.

SOLICITOR GENERAL OLSON: It is a stretch but it’s not impossible either. [my emphasis]

The previous year, in 2001, the government had used the threat of a rape prosecution against Abu Zubaydah’s brother, Hesham Abu Zubaydah (who had had calls with his brother picked up on wiretaps), to convince him to become an informant. The FISCR decision certainly didn’t endorse approving individual FISA warrants to find proof of crimes that could be used to flip people. But neither did it place meaningful limits (and why should it, given that in those halcyon days all FISA orders were individualized).

In years since then, the government has repeatedly told the FISC they’re using programmatic spying to find informants. In both 2006 and 2009 it said it would use the phone dragnet “to discover individuals willing to become U.S. Government assets.” (see PDF 22 for citations to two Keith Alexander statements) That’s also one way the FBI measured the efficacy of Stellar Wind.

The Gartenlaub case shows FBI will use kiddie porn to (attempt to recruit) foreign intelligence informants

This is one reason the Keith Gartenlaub case is so important, in which the government used a criminal warrant, then a FISA warrant, then another criminal warrant to obtain evidence that Gartenlaub had nine-year old kiddie porn on his hard drives. The government justified all those warrants based on the claim that Gartenlaub was working with his Chinese in-laws — who always got described as influential in China — to steal Boeing information to share with China. Ultimately, they found no evidence of that.

I will eventually show evidence that the government also used Section 702 against Gartenlaub, probably (at a minimum) to obtain the Skype conversations he had with his in-laws, who would be targetable as influential Chinese citizens.

In any case, in association with the Gartenlaub case, the government changed both the individual FISA and the Section 702 minimization procedures to permit the sharing of data collected under FISA with the National Center for Missing and Exploited Children, meaning they can use FISA to obtain information on kiddie porn in the name of foreign intelligence collection.

After they indicted Gartenlaub, the government offered to drop the charges for information on the spying with China.

During his initial appearance in a federal courthouse in Santa Ana, Calif., the prosecutors indicated a willingness to reduce or drop the child pornography charges if he would tell them about the C-17, said Sara Naheedy, Gartenlaub’s attorney at the time.

Even at that late date, after eighteen months, two criminal warrants, and a FISA warrant, the government was treating Gartenlaub’s alleged kiddie porn possession as potential foreign intelligence information.

One purpose of assessments — and queries conducted under them — is to assess people to become informants

Every description of back door searches is clear: FBI can use them at the assessment level (that is, when they’re trying to figure out whether to open a full investigation).

[W]henever the FBI opens a new national security investigation or assessment, FBI personnel will query previously acquired information from a variety of sources, including Section 702, for information relevant to the investigation or assessment. With some frequency, FBI personnel will also query this data, including Section 702– acquired information, in the course of criminal investigations and assessments that are unrelated to national security efforts. In the case of an assessment, an assessment may be initiated “to detect, obtain information about, or prevent or protect against federal crimes or threats to the national security or to collect foreign intelligence information.

And FBI’s Domestic Investigations and Operations Guide is equally clear: the FBI uses assessments to determine whether people would make good informants. For example, the DIOG describes this scenario — which sounds just like what happened to Professor Xiaoxiang Xi — among its scenarios for using assessments.

A field office has a Full Investigation open on a group of individuals from country X believed to be targeting engineers and high-tech workers involved in the production of semiconductor chips. Evidence in the Full Investigation suggests that the individuals from country X are attempting to recruit the engineers and high tech workers to steal information regarding the semiconductor chips in exchange for money. During the investigation, an engineer who travels frequently to country X has been identified.

Information developed during the Predicated Investigation may be used to determine whether the engineer should be viewed as a subject of the investigation or a potential [Confidential Human Source]. If the engineer is determined to be a subject of the Full Investigation, a Type 5 Assessment may not be opened and the engineer needs to be opened as the target of a Full Investigation. If the primary focus of the FBI’s interest is to determine whether the individual may be a potential source, a Type 5 Assessment should be opened to collect information necessary to determine whether the FBI should attempt to recruit the engineer as a CHS. (PDF 117)

Remember: the FBI can obtain any 702 data related to a full investigation like the one described here. And Chinese scientists suspected of IP theft would be clear targets under the Foreign Government certificate. So it is solidly within the realm of possibility that the government would target Chinese scientists, obtain conversations (like the one that Xi got targeted for) about semiconductors, and then find that information at a later time when researching the American whose communication got collected incidentally.

That’s the problem with trying to fix the back door loophole while still permitting back door searches for foreign intelligence assessments: because it’s not until the government pulls up the information at the assessment stage — and it may well be years later, as was the case for Gartenlaub — that the government decides whether they’re going to use it and its fruits as foreign intelligence or criminal information.

Maybe FBI Has Lost Track of Who the Informants Are?

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Here are all the informants and undercover employees listed in the criminal complaint against Erick Hendricks, who was arrested for conspiring to materially support ISIL in relation to the Garland, TX attack:

  • CHS-1: a paid informant for the last year and a half with a criminal record of fraud and forgery who has not (yet?) received sentencing benefits for his cooperation; he met with Hendricks in Baltimore.
  • CHS2: a paid informant for the last 4 years with no known criminal history; he posed as someone wanting to join ISIL.
  • CHS-3: a paid informant for the last 4 and a half years with no known criminal history; Hendricks instructed CHS-3 to assess UCE-1 for recruitment.
  • CHS-4: a paid informant for the last 4 years with no known criminal history; Hendricks provided him with jihadist propaganda on social media. He also met with Hendricks in Baltimore, at a later date.
  • UCE-1: an undercover officer had conversations directly with Hendricks that mirrored those Hendricks had with a cooperating witness. UCE-1 also incited and then was present for the Garland attack.

Not mentioned at all in this narrative is the role played by Joshua Goldberg, a Jewish guy who adopted many avatars online to incite all kinds of violence, including, under the name of Australi Witness, Garland. In December Goldberg was deemed incompetent to stand trial, though in June it was decided with more treatment he might become competent enough to stand trial, so they’re going to check again in four months.

So, the cell that committed the Garland attack consisted of the two now-dead perpetrators, four informants, an undercover FBI officer, a mentally ill troll, and Hendricks.

Only now, Hendricks claims he was an informant too!

Hendricks claims to have been a paid informant of the FBI since 2009 who helped the agency identify potential terrorists. Code name: “Ahkie,” a variation of the Muslim term for “brother.”

He also claims to have been an outspoken and longtime opponent of radical Islam.

“I have publicly, privately and consistently denounced Al-Qaeda, ISIS and all extremist groups,” Hendricks said in a statement that Lisa Woods says her son dictated during a Wednesday phone call from the jail.

“I am baffled as to why the FBI (is) accusing me of terrorist ties.”

[snip]

In his statement, Hendricks says the FBI first made contact with him in 2009, when as Mustafa Abu Maryam, Hendricks was the youth coordinator of the Islamic Circle of North America Center in Alexandria, Va.

[snip]

In his jail statement, Hendricks says he was recruited in 2009 by an FBI agent named David to help identify potential terrorists. In 2010, after Hendricks had moved to Columbia, he says he worked with another FBI agent named Steve. Altogether, Hendricks claims to have developed “at least a half-dozen” cases against extremists.

Has the FBI simply lost track of who are real and who are the people it is paying to play a role? Or is it possible someone from another agency, claiming to be FBI, recruited Hendricks (don’t laugh! That’s one potential explanation for Anwar al-Awlaki’s curious ties to US law enforcement, a story that wends its way through a related mosque in VA)?

Sure, maybe Hendricks is making all this up (at the very least, it may necessitate the BoP to protect him in prison since he has now publicly claimed to be a narc). But FBI’s network of informants sure is getting confusing.

 

Former Top Holder Aide Says Back Door Searches Violate Fourth Amendment; FISC Judge Thomas Hogan Doesn’t Care

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My apologies to Amy Jeffress.

When I first realized that FISA Court Presiding Judge Thomas Hogan picked her to serve as amicus for the review of the yearly 702 certifications last year, I complained that she, not Marc Zwillinger, got selected (the pick was made in August, but Jeffress would later be picked as one of the standing amicus curiae, along with Zwillinger). After all, Zwillinger has already argued that PRISM (then authorized by Protect America Act) was unconstitutional when he represented Yahoo in its challenge of the program. He’s got experience making this precise argument. Plus, Jeffress not only is a long-time national security prosecutor and former top Eric Holder aide, but she has been involved in some actions designed to protect the Executive. I still think Zwillinger might have done a better job. But Jeffress nevertheless made what appears to be a vigorous, though unsuccessful, argument that FBI’s back door searches of US person data are unconstitutional.

A former top DOJ lawyer believes FBI’s back door queries are unconstitutional

But it says a lot that Jeffress — someone who narrowly missed being picked as Assistant Attorney General for National Security and who presumably got at least some visibility on back door searches when working with Holder — argued that FBI’s warrantless back door searches of communications collected under Section 702 is unconstitutional. (I presume it would be unethical for Jeffress to use information learned while counseling Holder in this proceeding, which might have put her in an interesting position of knowing more than she could say.)

Sadly, Hogan didn’t care. Worse, his argument for not caring doesn’t make sense. As I’ll note, not only did Hogan pick a less than optimal person to make this argument, but he may have narrowly scoped her input, which may have prevented her from raising evidence in Hogan’s own opinion that his legal conclusion was problematic.

To be clear, Jeffress was no flaming hippie. She found no problem with the NSA and CIA practice of back door searches, concluding, “that the NSA and CIA minimization procedures are sufficient to ensure that the use of U.S. person identifiers for th[e] purpose of [querying Section 702-acquired information] complies with the statutory requirements of Section 702 and with the Fourth Amendment.” But she did find the FBI practice problematic.

Jeffress’ amicus brief included at least 10 pages of discussion of her concerns with the practice, though ODNI did not release her brief and Hogan cited very limited bits of it. She argued, “the FISA process cannot be used as a device to investigate wholly unrelated ordinary crimes” and said because the queries could do so they “go far beyond the purpose for which the Section 702-acquired information is collected in permitting queries that are unrelated to national security.”

To dismiss Jeffress’ arguments, Hogan does several things. He,

  • Notes the statute requires foreign intelligence just be “a significant purpose” of the collection, and points back to the 2002 In Re Sealed Case FISCR decision interpreting the “significant purpose” language added in the PATRIOT Act to permit the use of traditional FISA information for prosecutions
  • Cites the FISA minimization procedure language that “allow[s] for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed”
  • Dismisses a former top DOJ official’s concerns about the use of FISA data for non-national security crimes as “hypothetical”
  • Doesn’t address — at all — language in the FBI minimization procedures that permits querying of data for assessments and other unspecified uses
  • Invests a lot of faith in FBI’s access and training requirements that later parts of his opinion undermine

There are several problems with his argument.

In Re Sealed Case ties “significant purpose” to the target of an interception

First, Hogan extends the scope of what the FISA Court of Review interpreted the term “significant purpose,” which got added to traditional FISA in the PATRIOT Act and then adopted in FISA Amendments Act.

Hogan cites the FISCR decision in In Re Sealed Case to suggest it authorized the use of information against non-targets of surveillance. He does so by putting the court’s ultimate decision after caveats it uses to modify that. “The Court of Review concluded that it would be an “anomalous reading” of the “significant purpose” language of 50 U.S.C. § 1804(a)(6)(B) to allow the use of electronic surveillance in such a case. See id. at 736. The Court nevertheless stressed, however, that “[s]o long as the government entertains a realistic option of dealing with the agent other than through criminal prosecution that it satisfies the significant purpose test.”

But that’s not what FISCR found. Here’s how that reads in the original, with Hogan’s citations emphasized.

On the one hand, Congress did not amend the definition of foreign intelligence information which, we have explained, includes evidence of foreign intelligence crimes. On the other hand, Congress accepted the dichotomy between foreign intelligence and law enforcement by adopting the significant purpose test. Nevertheless, it is our task to do our best to read the statute to honor congressional intent. The better reading, it seems to us, excludes from the purpose of gaining foreign intelligence information a sole objective of criminal prosecution. We therefore reject the government’s argument to the contrary. Yet this may not make much practical difference. Because, as the government points out, when it commences an electronic surveillance of a foreign agent, typically it will not have decided whether to prosecute the agent (whatever may be the subjective intent of the investigators or lawyers who initiate an investigation). So long as the government entertains a realistic option of dealing with the agent other than through criminal prosecution, it satisfies the significant purpose test.

The important point is–and here we agree with the government–the Patriot Act amendment, by using the word “significant,” eliminated any justification for the FISA court to balance the relative weight the government places on criminal prosecution as compared to other counterintelligence responses. If the certification of the application’s purpose articulates a broader objective than criminal prosecution–such as stopping an ongoing conspiracy–and includes other potential non-prosecutorial responses, the government meets the statutory test. Of course, if the court concluded that the government’s sole objective was merely to gain evidence of past criminal conduct–even foreign intelligence crimes–to punish the agent rather than halt ongoing espionage or terrorist activity, the application should be denied.

The government claims that even prosecutions of non-foreign intelligence crimes are consistent with a purpose of gaining foreign intelligence information so long as the government’s objective is to stop espionage or terrorism by putting an agent of a foreign power in prison. That interpretation transgresses the original FISA. It will be recalled that Congress intended section 1804(a)(7)(B) to prevent the government from targeting a foreign agent when its “true purpose” was to gain non-foreign intelligence information–such as evidence of ordinary crimes or scandals. See supra at p.14. (If the government inadvertently came upon evidence of ordinary crimes, FISA provided for the transmission of that evidence to the proper authority. 50 U.S.C. § 1801(h)(3).) It can be argued, however, that by providing that an application is to be granted if the government has only a “significant purpose” of gaining foreign intelligence information, the Patriot Act allows the government to have a primary objective of prosecuting an agent for a non-foreign intelligence crime. Yet we think that would be an anomalous reading of the amendment. For we see not the slightest indication that Congress meant to give that power to the Executive Branch. Accordingly, the manifestation of such a purpose, it seems to us, would continue to disqualify an application. That is not to deny that ordinary crimes might be inextricably intertwined with foreign intelligence crimes. For example, if a group of international terrorists were to engage in bank robberies in order to finance the manufacture of a bomb, evidence of the bank robbery should be treated just as evidence of the terrorist act itself. But the FISA process cannot be used as a device to investigate wholly unrelated ordinary crimes.

Hogan ignores three key parts of this passage. First, FISCR’s decision only envisions the use of evidence against the target of the surveillance, not against his interlocutors, to in some way neutralize him. Any US person information collected and retained under 702 is, by definition, not the targeted person (whereas he or she might be in a traditional FISA order). Furthermore, FBI’s queries of information collected under 702 will find and use information that has nothing to do with putting foreign agents in prison — that is, to “investigate wholly unrelated ordinary crimes,” which FISCR prohibited. Finally, by searching data that may be years old for evidence of a crime, FBI is, in effect, “gaining evidence of past criminal conduct” — itself prohibited by FISCR — of someone who isn’t even the target of the surveillance.

Hogan only treats querying for criminal purposes

Having, in my opinion, expanded on what FISCR authorized back in 2002, Hogan then ignores several parts of what FBI querying permits.

Here’s (some of) the language FBI added to its minimization procedures, at the suggestion of PCLOB, to finally, after 8 years, fully disclose what it was doing to the FISC.

It is a routine and encouraged practice for FBI to query databases containing lawfully acquired information, including FISA-acquired information, in furtherance of the FBI’s authorized intelligence and law enforcement activities, such as assessments, investigations and intelligence collection. Section III.D governs the conduct of such queries. Examples of such queries include, but are not limited to, queries reasonably designed to identify foreign intelligence information or evidence of a crime related to an ongoing authorized investigation or reasonably designed queries conducted by FBI personnel in making an initial decision to open an assessment concerning a threat to national security, the prevention or protection against a Federal crime, or the collection of foreign intelligence, as authorized by the Attorney General Guidelines. These examples are illustrative and neither expand nor restrict the scope of the queries authorized in the language above.

This language makes clear FBI may do back door searches for:

  • To identify foreign intelligence information
  • To identify evidence of a crime related to an ongoing investigation
  • To decide whether to open an assessment concerning a threat to national security, the prevention or protection against a Federal crime, or the collection of foreign intelligence
  • Other things, because FBI’s use of such queries “are not limited to” these uses

Given Hogan’s stingy citations from Jeffress’ brief, it’s unclear how much of these things she addressed (or whether she was permitted to introduce knowledge gained from having worked closely with Eric Holder when these back door searches were being formalized).

Read more →

NSA’s Dragnet Failed to “Correlate” David Headley’s Identity, One of Its Core Functions

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In a piece on the GCHQ and NSA failure to identify David Headley’s role in the Mumbai terrorist attack, ProPublica quotes former CIA officer Charles Faddis on the value of bulk surveillance.

“I’m not saying that the capacity to intercept the communications is not valuable,” said Charles (Sam) Faddis, a former C.I.A. counterterror chief. “Clearly that’s valuable.” Nonetheless, he added, it is a mistake to rely heavily on bulk surveillance programs in isolation.

“You’re going to waste a lot of money, you’re going to waste a lot of time,” Faddis said. “At the end, you’re going have very little to show for it.”

The article as a whole demonstrates that in a manner I’m fairly shocked about. The NSA failed to recognize what it had in intelligence collected on Headley’s role in the attack even after the attack because they hadn’t correlated his known birth name with the name he adopted in the US.

Headley represents another potential stream of intelligence that could have made a difference before Mumbai. He is serving 35 years in prison for his role. He was a Pakistani-American son of privilege who became a heroin addict, drug smuggler and DEA informant, then an Islamic terrorist and Pakistani spy, and finally, a prize witness for U.S. prosecutors.

In recounting that odyssey, we previously explored half a dozen missed opportunities by U.S. law enforcement to pursue tips from Headley’s associates about his terrorist activity. New reporting and analysis traces Headley’s trail of suspicious electronic communications as he did reconnaissance missions under the direction of Lashkar and Pakistan’s Inter-Services Intelligence Directorate (ISI).

Headley discussed targets, expressed extremist sentiments and raised other red flags in often brazen emails, texts and phone calls to his handlers, one of whom worked closely on the plot with Shah, the Lashkar communications chief targeted by the British.

U.S. intelligence officials disclosed to me for the first time that, after the attacks, intensified N.S.A. monitoring of Pakistan did scoop up some of Headley’s suspicious emails. But analysts did not realize he was a U.S.-based terrorist involved in the Mumbai attacks who was at work on a new plot against Denmark, officials admitted.

The sheer volume of data and his use of multiple email addresses and his original name, Daood Gilani, posed obstacles, U.S. intelligence officials said. To perfect his cover as an American businessman, Headley had legally changed his name in 2006.

“They detected a guy named ‘Gilani’ writing to bad guys in Pakistan, communicating with terror and ISI nodes,” a senior U.S. intelligence official said. “He wrote also in fluent Urdu, which drew interest. Linking ‘Gilani’ to ‘Headley’ took a long time. The N.S.A. was looking at those emails post-Mumbai. It was not clear to them who he was.”

As I’ve explained, one of the things NSA does with all its data is to “correlate” selectors, so that it maps a picture of all the Internet and telecom (and brick and mortar, where they have HUMINT) activities of a person using the multiple identities that have become common in this day and age. This is a core function of the NSA’s dragnets, and it works automatically on EO 12333 data (and worked automatically on domestically-collected phone and — probably — Internet metadata until 2009).

When you think about it, there are some easy ways of matching online identities (going to a provider, mapping some IP addresses). And even the matching of “burner” IDs can be done with 94% accuracy, at least within AT&T’s system, according to AT&T’s own claims.

The NSA says they didn’t do so here because Headley had changed his name.

Headley, recall, was a DEA informant. Which means, unless these intelligence agencies are far more incompetent than I believe they are, this information was sitting in a government file somewhere: “Daood Gilani, the name of a known Urdu-fluent informant DEA sent off to Pakistan to hang out with baddies  = David Headley.” Unless Headley adopted the new name precisely because he knew it would serve to throw the IC off his trail.

And yet … NSA claims it could not, and did not, correlate those two identities and as a result didn’t even realize Headley was involved in the Mumbai bombing even after the attack.

Notably, they claim they did not do so because of the “sheer volume of data.”

In short, according to the NSA’s now operative story (you should click through to read the flaccid apologies the IC offered up for lying about the value of Sections 215 and 702 in catching Headley), the NSA’s dragnet failed at one of its core functions because it is drowning in data.

 

FBI’s Preventative Role: Hygiene for Corporations, Spies for Muslims

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I’m still deep in this 9/11 Follow-up Report FBI, which Jim Comey and now-retired Congressman Frank Wolf had done last year and which released the unsurprising topline conclusion that Jim Comey needs to have more power, released earlier this week.

About the only conclusion in the report that Comey disagreed with — per this Josh Gerstein report — is that it should get out of the business of Countering Violent Extremism.

Comey said he agreed with many of the report’s recommendations, but he challenged the proposal that the FBI leave counter-extremism work to other agencies.

“I respectfully disagree with the review commission,” the director said. “It should not be focused on messages about faith it should not be socially focused, but we have an expertise … I have these people who spend all day long thinking dark thoughts and doing research at Quantico, my Behavioral Analysis Unit. They have an incredibly important role to play in countering violent extremism.”

Here’s what the report had to say about FBI and CVE (note, this is a profoundly ahistorical take on the serial efforts to CVE, but that’s just one of many analytical problems with this report).

The FBI, like DHS, NCTC, and other agencies, has made an admirable effort to counter violent extremism (CVE) as mandated in the White House’s December 2011 strategy, Empowering Local Partners to Prevent Violent Extremism in the United States. In January 2012, the FBI established the Countering Violent Extremism Office (CVEO) under the National Security Branch.322 The CVEO was re-aligned in January 2013 to CTD’s Domestic Terrorism Operations Section, under the National JTTF, to better leverage the collaborative participation of the dozens of participating agencies in FBI’s CVE efforts.323 Yet, even within FBI, there is a misperception by some that CVE efforts are the same as FBI’s community outreach efforts. Many field offices remain unaware of the CVE resources available through the CVEO.324 Because the field offices have to own and integrate the CVE portfolio without the benefit of additional resources from FBI Headquarters, there is understandably inconsistent implementation. The Review Commission, through interviews and meetings, heard doubts expressed by FBI personnel and its partners regarding the FBI’s central role in the CVE program. The implementation had been inconsistent and confusing within the FBI, to outside partners, and to local communities.325 The CVEO’s current limited budget and fundamental law enforcement and intelligence responsibilities do not make it an appropriate vehicle for the social and prevention role in the CVE mission. Such initiatives are best undertaken by other government agencies. The Review Commission recommends that the primary social and prevention responsibilities for the CVE mission should be transferred from the FBI to DHS or distributed among other agencies more directly involved with community interaction.

[snip]

(U) Recommendation 6: The Review Commission recommends that the primary social and prevention responsibilities for the CVE mission should be transferred from the FBI to DHS or distributed among other agencies more directly involved with community interaction.

For what it’s worth, Muslim communities increasingly agree that the FBI — and the federal government generally — should not be in the business of CVE. But that’s largely because the government approaches it with the same view Comey does: by thinking immediately of his analysts thinking dark thoughts at Quantico. So if some agency that had credibility — if some agency had credibility — at diverting youth (of all faiths) who might otherwise get caught in an FBI sting, I could support it moving someplace else, but I’m skeptical DHS or any other existing federal agency is that agency right now.

While the Review doesn’t say explicitly in this section what it wants the FBI to be doing instead of CVE, elsewhere it emphasizes that it wants the FBI to do more racial profiling (AKA “domain awareness”) and run more informants. Thus, I think it fair to argue that the Ed Meese-led panel thinks the FBI should spy on Muslims, not reach out to them. Occupation-style federal intelligence gathering, not community based.

Which is why I think this approach to Muslim communities should be compared directly with the Review’s approach with corporations. The same report that says FBI should not be in the business of CVE — which done properly is outreach to at-risk communities — says that it should accelerate and increase its funding for its outreach to the private sector.

(U) Recommendation 5: The Review Commission recommends that the FBI enhance and accelerate its outreach to the private sector.

  • (U) The FBI should work with Congress to develop legislation that facilitates private companies’ communication and collaboration and work with the US Government in countering cyber threats.
  • (U) The FBI should play a prominent role in coordinating with the private sector, which the Review Commission believes will require a full-time position for a qualified special agent in the relevant field offices, as well as existing oversight at Headquarters.

Indeed, in a paragraph explaining why the FBI should add more private sector liaisons (and give them the same credit they’d get if they recruited corporations as narcs, only corporations shouldn’t be called “sources” because it would carry the stigma of being a narc), the Review approvingly describes the FBI liaison officers working with corporations to promote better Internet hygiene.

The Review Commission learned that the FBI liaison positions have traditionally been undervalued but that has begun to change as more experienced special agents take on the role, although this has not yet resulted in adequate numbers of assigned special agents or adequate training for those in the position. One field office noted that it had 400 cleared defense contractors (CDCs) in its AOR—ranging from large well known names to far smaller enterprises—with only one liaison officer handling hundreds of CDCs. This field office emphasized the critical need for more liaison officers to conduct outreach to these companies to promote better internet hygiene, reduce the number of breaches, and promote long-term cooperation with the FBI.319 Another field office noted, however, some sensitivity in these liaison relationships because labeling private sector contacts as sources could create a stigma. The field office argued that liaison contacts should be considered valuable and special agents should receive credit for the quality of liaison relationships the same way they do for CHSs.320

Ed Meese’s panel wants the FBI to do the digital equivalent of teaching corporations to blow their nose and wash their hands after peeing, but it doesn’t think the FBI should spend time reaching out to Muslim communities but should instead spy on them via paid informants.

Maybe there are good reasons for the panel’s disparate recommended treatment of corporations and Muslim communities. If so, the Review doesn’t explain it anywhere (though the approach is solidly in line with the Intelligence Committees’ rush to give corporations immunity to cyber share information with the federal government).

But it does seem worth noting that this panel has advocated the nanny state for one stakeholder and STASI state for another.