A ‘Dicks Out’: On the Reported U.S. Intelligence Assist to Ukraine

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[NB: check the byline, thanks. /~Rayne]

By now you’ve probably read Marcy’s post, Bragging on U.S. Intelligence. I agree with her take in part, but I suspect the situation isn’t just dick-wagging.

It’s a ‘dicks out‘ situation, an attempt using the media to make a statement.

Not in the sense there’s any competition here between dick-swinging leaders — dick-wagging — but in the sense there’s a display. It looks like a show of power and it is, reminding Putin and Russia’s military leadership within view of the Russian public and the globe that the world’s largest army can aid an eastern European democracy and make it look like it’s a trifling amusement.

Russia media already acknowledges the aid provided by the U.S. and other NATO countries is tough competition.

The report about U.S. intelligence in The New York Times wasn’t a surprise to Russia, though. There had been numerous reports in social media about a U.S. military surveillance aircraft flying over the Black Sea shortly before the Moskva was reported to have taken a hit from Ukraine’s Neptune missiles — or caught fire, if one paid attention only to pro-Russian accounts. The flight was not unexpected as the U.S. had been flying surveillance over the Black Sea for years before the invasion began.


Note there was more than just a lone P-8 flying surveillance the day the Moskva was hit, though these reports shared here are likely well after the attack.

What’s not clear is the timing of the attack on the Moskva — late on April 13, or very early on April 14. Lithuania’s Defense Minister posted early morning ET about the attack:

By evening GMT the vessel had sunk which Russia confirmed.

Russia and the U.S. have had run-ins over the Black Sea even during the Trump administration.

The U.S. military made a point then that its duties continued in spite of the change in leadership. This may even have been an issue during the Helsinki summit in July 2018 but we may not know for certain since Trump squelched interpreter’s notes.

~ ~ ~

The British newspaper The Times reported at 12:01 a.m. BST on April 20 about the same surveillance aircraft which had been sighted over the Black Sea before the Moskva was in distress.

A U.S. aircraft was patrolling the Black Sea in the hours before the Moskva was hit by Ukrainian missiles, The Times can reveal.

A Boeing P8 Poseidon was within 100 miles of the Moskva on the day the Russian cruiser sustained catastrophic damage. …

“The Times can reveal” suggests either The Times were waiting validation from local sources, or the outlet had received authorization to report this news from either British or U.S. military. The just-past-midnight time stamp suggests the latter.

But this wasn’t just a show of power for the benefit of NATO; EU member states who are NATO members are too deeply committed now whether the U.S. gets involved or not providing assistance to Ukraine. The chances of Russia nailing a EU member accidentally or on purpose is real, while the risk to the U.S. is slim to none; we don’t have any real skin in the game. NATO members likely knew already the U.S. was providing intelligence because of the emergency session between NATO and G-7 allies on March 24 in Brussels where commitments of effort from sanctions and aid were discussed.

Who else benefited from the published confirmation the U.S. had provided intelligence to Ukraine? Cui bono?

1. Ukraine — not just because they have access to the intelligence apparatus of the largest military in the world, but their own intelligence sources and methods are no longer in the spotlight drawing the attention of Putin and his remaining intelligence system from FSB to ad hoc hacking teams.

2. U.S. — because one of the audiences who needs to know U.S. intelligence is both capable and effective is the U.S. itself, in Congress, the intelligence community, and the public; the reports assure the general public in the U.S. and abroad that the U.S. has an active role if not as a combatant. We’re providing intelligence as well as materiel but not the personnel who ultimately act on intelligence available.

3. U.S. corporations — in particular, Apple and John Deere, because there have been stories of apps built into their products which may have allowed their hardware to be used for intelligence collection directly and indirectly, placing the companies at risk of attack by Russia.

4. Iran and other parties to the JCPOA P5+1 agreement — because elements in Iran are still demanding revenge for the assassination of Lt. General Qasem Soleimani; it’s a reminder the U.S. is watching though Iran’s intelligence apparatus surely knows this; factions desiring a return to the agreement know retribution works against them.

5. Japan — with Russia’s military demonstrating weakness, Japan has seen opportunity to not only recover some of its stature post- Abe but make demands related to the occupation of the Kuril Islands; its public may be reassured its partner is watching Russia closely as it does so.

6. Taiwan — China is watching closely how the U.S. responds to Russia’s invasion of Ukraine as a model for its response should China attempt to realize its One China ideology and take Taiwan; it’s already seen in Hong Kong a lack of U.S. intervention. While China’s leadership surely knows about U.S. intelligence provided to Ukraine, Taiwan’s public needs to know this is on the table for them as well.

7. Aspiring NATO members Finland and Sweden — while these two countries have been prepared for Russian hostilities since WWII, the invasion of Ukraine has heightened their sensitivity to national security. Both are now pursuing membership in NATO as Marcy mentioned; open acknowledgment of the benefits of membership may help their public feel more at ease with joining after holding out for so long.

Marcy’s post noted the value of the publicized intelligence to several of these beneficiaries’ voting constituencies.

Of all of who benefit, two most critical are Ukraine and U.S. corporations. As a ‘dicks out’ effort, the U.S. draws attention to itself and its intelligence capabilities which the media have gladly hyped up.

I have to wonder if this change in NYT hed was really because of an error, or an attempt to ensure the Russians were sitting up, paying attention to, and pissed off at the U.S.


Especially since the NYT’s article pointedly said there was no targeting information.

… The Pentagon press secretary, John F. Kirby, asked about a report in The Times of London that a Navy P-8 spy plane from Sigonella air base in Italy was tracking the Moskva before it was hit by Ukraine, spoke of air policing missions in the Black Sea as part of a carefully worded response: “There was no provision of targeting information by any United States Navy P-8 flying in these air policing missions,” he said. …

By drawing attention away from Ukraine and U.S. corporations, the use of non-traditional sources of intelligence based on non-government private resources becomes less obvious, potentially reducing their risk from retaliatory attack by Russia.

(An aside: Did you know that Apple iPhones were the second or third most popular cell phone in Russia? While Apple has now stopped selling its products in Russia, it’s not clear iPhones and MacBooks are no longer operative on Russian networks.)

~ ~ ~ 

There were two other things worth noting related to the day the Moskva was hit and Russia’s response afterward.

First, the U.S. Navy P-8 (and other surveillance craft) weren’t the only unusual flights on April 14. A “Doomsday” plane took off from Moscow; the plane is equipped for use in the event of nuclear war.


But it wasn’t just a Russian “Doomsday” plane in the air that same day.


Most media didn’t appear to have noticed the Russian plane. The Daily Express-UK published an article on April 14 at 13:16 hours London time, edited at 14:25 hours, about the Russian craft’s kit, and wrote about a flight at 4:16 pm which lasted nearly four hours. It also mentioned the U.S. “Doomsday” plane taking a flight but in little detail. The Daily Express didn’t tweet their article.

Second, Russia told the families of Moskva crew members who died on April 14 that they would not receive survivor compensation:

This seems particularly callous especially since crew members families were told little to nothing immediately following the Moskva’s “fire” and sinking, calling to mind the handling of the Kursk submarine disaster. Were the Moskva’s crew and their surviving families punished financially for failing?

Another particularly odd detail was the immediate reaction of crew on board the Moskva after it was hit by Ukraine’s Neptune missiles — the radar didn’t respond as if it wasn’t watching for another attack, and life boats didn’t appear to be deployed and loaded once the ship appeared to be in extremis. A report by U.S. Naval Institute News said the ship was blind to the attack, its radar not detecting surveillance by drones or planes or the missiles once it was targeted.

One analysis of the attack in this following Twitter thread suggests the weather conditions the night of April 13/morning April 14 may have helped mask the missiles if the radar was working and its 180-degree range aimed in the correct direction.

There are a lot of ifs here even after reading an analysis of the attack (pdf) shared by USNI News.

Perhaps the publication of the news that the U.S. intelligence isn’t merely a ‘dicks out’ statement to garner attention away from others, or make the point the U.S. is assisting with intelligence up to but not including targeting.

Perhaps the message was meant to tell Putin, “The U.S. intelligence community knows exactly what happened to the Moskva,” implying another mishandling of information a la the Kursk could be used strategically against weakened Russian leadership.

The deployment of our own “Doomsday” plane the same day Putin moved his also says something, but that may be even more cryptic and intended for a very small audience compared to the ‘dicks out’ about the Moskva’s sinking.

Open Thread: The Case of Fake Federal Personnel in the Navy Yard [UPDATE-1]

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[NB: check the byline, thanks. Update(s) if any will appear at the bottom of this post. /~Rayne]

This thread is for all discussion related to the bizarre case in Washington D.C. which began to unfold yesterday afternoon/evening with a raid on an apartment building:

Mike Balsamo-Associated Press had one of the earliest reports:

In a nutshell, two men have been arrested for impersonating federal employees after the U.S. Postal Inspection Service began an investigation into the alleged assault of a postal carrier in/near the building raided yesterday in the D.C. Navy Yard area.

I don’t even know how to categorize this story yet. On the face of it I’m going with this being an intelligence story.

Can’t even be certain whose intelligence it is at work if this is indeed an intelligence story:

– one person arrested has a Persian (Iranian?) name;
– the other person arrested has an Arabic name;
– a third person mentioned during the course of reporting has a Russian/Belarusian name and their gender hasn’t been clarified;
– the person with a Persian name is linked to a mess of corporations, some located in the Midwest, linked to yet more persons who may/may not be related to this unfolding case;
– there’s a lot money involved though it’s an open question whose money it is;
– there are expensive professional office spaces involved;
– the suborning or bribery of Secret Service personnel is really, REALLY problematic;
– the amount of detail generated to create this operation/program suggests even more money involved.

Bring everything you have about this developing story to this thread along with any other stray cat and dog topics.

If there are updates to this story they will appear at the bottom of this post.

~ ~ ~

UPDATE-1 — 12:30 AM EST 08-APR-2022 —

No big developments, just a preliminary timeline based on news reports and the affidavit filed with D.C.’s district court (affidavit via Google Docs).

2006 — Incorporation of On Point Productions, LLC, in Missouri by Arian Taherzadeh.

June 11, 2018 — first post on United States Special Police Facebook page.

March 1, 2019 — listed by International Association of Police Chiefs as “Taherzadeh, Arian, Special Agent, US Special Police” in Washington, D.C. [Source (pdf)]

September 23, 2019 — On Point Productions, LLC name changed to US Special Police, LLC in Missouri.

October 16, 2019 — archive date of USSP website (archive is empty).

early 2021 — “Metro Police did a search of Taherzadeh’s unit when a person from a surrounding apartment building made a call reporting a sighting of firearms in his 3-bedroom corner unit through an open window.” [Source]

Febuary 2021-January 2022 (TBD) — At some point during this period of time, Taherzadeh introduced himself to Witness 3, a Secret Service member, as an HSI agent working in a gang unit with DHS.

Febuary 2021-January 2022 (TBD) –Taherzadeh told Witness 5, a Secret Service member, he was with HSI.

June 2021 (TBD) — Taherzadeh introduced himself to Witness 4, a DHS-HSI Document Analyst Expert, and told then he knew they were with HSI or US Citizenship Immigration Service. Taherzadeh told Witness 4 he was undercover for HSI which Witness 4 couldn’t validate.

July 2021 — Taherzadeh told Witness 1 later interviewed by FBI that he was a special agent with Homeland Security Investigations (HSI), that Ali was with HSI as well.

July 4, 2021 (TBD) — Witness 2, a Secret Service agent, was introduced to Taherzadeh and Ali as HSI agent and analyst respectively.

January 2022 (TBD) — Witness 5 moved out of apartment Taherzadeh had provided; Witness 5 saw Taherzadeh move “law enforcement and computer equipment” into the vacated apartment.

February 2, 2022 — Taherzadeh sent Witness 2 a photo claiming he was attending HSI training; investigation determined it was a stock photo.

March 14, 2022 — U.S. Postal Inspector (USPIS) began investigation into alleged assault of mail carrier; inspector was told Taherzadeh and Ali, believed to be DHS personnel, may have been witnesses.

TBD, 2022 — USPIS interviewed Taherzadeh and Ali who made claims they were DHS/HSI/”special police”/deputized/working on gangs and January 6 investigation.

April 6, 2022 — “A member of building management, Kelly Cianciola, sent a statement to Crossing DC tenants around 11:30 a.m. Thursday claiming that the 4:00 p.m. raid came after search warrants were presented to front desk staff due to an FBI investigation.” [Source] (Why the heads up?)

Carlson to McCarthy to Nunes: Obstruction or Worse?

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[NB: Note the byline, thanks. /~Rayne]

Before Axios’ scoop was published last evening and Marcy published her post this morning, I’d started a tick-tock of the events related to Tucker Carlson’s recent fauxtrage claiming the NSA was spying on him.

It sure looked like Carlson was doing more than his usual white rage whining.

28-JUN-2021 – Monday evening – Carlson claimed the National Security Agency (NSA) was spying on him.

More specifically, Carlson said,

It’s not just political protesters the government is spying on, yesterday, we heard from a whistleblower within the US government who reached out to warn us that the NSA, the National Security Agency, is monitoring our electronic communications and is planning to leak them in an attempt to take this show off the air.

It’s doubtful Carlson was expressing outrage on behalf of protesters since he doesn’t distinguish between BLM protesters demanding an end to police brutality or MAGA/Qanon rabidly denouncing the outcome of democratic elections.

Who the “we,” “us,” or “our” is to which Carlson referred to is nebulous. The screed was unhinged because there was no evidence provided, just a reference to a shadowy whistleblower who felt compelled to tell Carlson rather than file a complaint through normal channels.

29-JUN-2021 – On Tuesday, Fox News published a partial transcript of Carlson’s program from the previous evening; the network published zero investigative reporting about the alleged spying.

29-JUN-2021 – 8:00 pm ET – The same evening, the NSA tweeted a denial:


As noted in Axios’ and others’ reporting, the NSA pointedly says Carlson “has never been an intelligence target of the Agency” which leaves the possibility Carlson’s communications could have been picked up as incidental to a foreign target if Carlson was communicating with a target.

29-JUN-2021 – 8:46 pm ET – Shortly thereafter, CNN-Business’s Oliver Darcy updated his report including the NSA’s denial while noting that none of Carlson’s Fox News cohort reported on his claim.

30-JUN-2021 – 10:51 am ET – On Wednesday morning, NYU’s Jay Rosen noted Fox’s failure to report such a serious claim.

30-JUN-2021 – 5:07 pm ET – Later that day House minority leader Kevin McCarthy tweeted about Carlson’s allegation:

How convenient – a neat turnaround in less than 48 hours.

~ ~ ~

Note in the partial transcript of Carlson’s Monday fauxtrage this bit toward the end:

…Only Congress can force transparency on the intelligence agencies and they should do that immediately. Spying on opposition journalists is incompatible with democracy. If they are doing it to us, and again, they are definitely doing it to us, they are almost certainly doing it to others. This is scary and we need to stop it right away.

Emphasis mine.

Did Carlson actually demand Congress — meaning McCarthy — take action? Or did Carlson provide cover for McCarthy’s selection of Nunes?

If Fox News had investigated Carlson’s claim and found any credibility, one might believe McCarthy had adequate reason to engage Nunes. But without such investigative reporting and no documented formal whistleblower complaint, it’s purely political posturing on Carlson’s part last Monday which drove McCarthy’s action.

McCarthy’s engagement of Nunes itself is odd since McCarthy has resisted for nearly a decade doing anything to restrain the NSA’s surveillance. Why would he sic Nunes on the fruits of his own inaction?

Nunes’ role in the obstruction of the Special Counsel’s investigation suggests the reason why McCarthy would set Nunes loose, along with a slew of other sketchy and obstructive behavior including Nunes’ role in pressuring Ukraine for disinfo about Hunter Biden. With McCarthy’s blessing, Nunes may be continuing the obstruction both of the past investigation and now the Biden administration’s operation.

Marcy’s post earlier today lays out Nunes’ habit of sowing faux scandal; perhaps Nunes didn’t sow this one directly but indirectly through Carlson, laundered by McCarthy until the Axios’ report last evening.

But timing is everything as they say. The Carlson-McCarthy-Nunes sequence occurred roughly 10 weeks after the exit of one of Nunes’ flunkies, Michael Ellis; you’ll recall Ellis is under investigation for leaking classified info, as is fellow Nunes’ flunkie Kash Patel. Patel left his role with the Trump administration on January 20 along with another Nunes’ flunkie, Ezra Cohen-Watnick.

The Carlson-McCarthy-Nunes sequence also happened 12 weeks after yet another Nunes’ flunkie, Derek Harvey, had been sanctioned along with his attorney for filing a defamation lawsuit against CNN which the judge’s ruling said was filed in bad faith.

If we can account for these sources Nunes might have used in the past to obtain intelligence, assuming Nunes might have used Carlson to move McCarthy on his behalf, who was the “whistleblower within the US government who reached out to warn” him about his communications? This is a rather important question since the “whistleblower” leaked to Carlson about communications collection which may have been related to tracking an identified foreign agent; who is the mole?

Perhaps Nunes, a government employee, tipped Carlson himself, closing the feedback loop?

The tricky part about Carlson’s claim after Axios’ report: if Carlson had not made a good faith effort to request an interview with Putin between the period January 1, 2019 until June 28, 2021 as Carlson indicated in his FOIA to the NSA, is it possible that some or all of his content in his program on Fox has been on behalf of a foreign entity?

Has Fox News, by failing to investigate this matter and report on it as a legitimate news network should have, by failing to exercise adequate editorial oversight of its “talent” contacting foreign leaders, also been in the service of a foreign entity?

Has House minority leader McCarthy allowed himself to be manipulated by a foreign entity in responding to Carlson’s claim by engaging Nunes to investigate it, rather than asking the Department of Justice or the Office of the Inspector General to do so? What if any effort did McCarthy expend to validate Carlson’s claim before handing off the situation to Nunes? Did McCarthy make any effort at all to contact Speaker Pelosi and/or Rep. Adam Schiff, the chair of the House Intelligence Committee?

~ ~ ~

Marcy wrote, “If the FBI believes that Tucker really was pursuing a long-term relationship with Russian agents, then even Fox News might rethink giving him a platform,” based on the 30-month period of time in which Carlson had been in dialog with Russian agents, allegedly pursuing an interview with Putin.

I don’t think there is or will be any government-based effort to take the Tucker Carlson Tonight show off the air — hello, First Amendment, which Carlson clearly doesn’t understand. But I wouldn’t be surprised if the program or its network was eventually obligated to file paperwork under the Foreign Agents Registration Act.

Vicky and Rudy: The Subjects of Delay

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When I asked around last year what the net effect of Billy Barr and Jeffrey Rosen’s efforts to protect Rudy Giuliani would be, I learned that the net effect of refusing to approve searches on Rudy would only delay, but it would not change the outcome of, the investigation into the President’s lawyer.

That’s worth keeping in mind as you read SDNY’s response to Victoria Toensing and Rudy’s demand that they get to treat both the April warrants against them, as well as the 2019 warrants, like subpoenas. Effectively, SDNY seems to be saying, “let’s just get to the indictment and discovery phase, and then you can start challenging these searches.”

The filing several times speaks of charges hypothetically.

If Giuliani is charged with a crime, he will, like any other criminal defendant, be entitled to production of the search warrant affidavits in discovery, at which time he will be free to litigate any motions related to the warrants as governed by Federal Rule of Criminal Procedure 12. Conversely, if the Government’s grand jury investigation concludes without criminal charges, then the sealing calculus may be different, and Giuliani may renew his motion.

[snip]

If there is a criminal proceeding, the Government will produce the affidavits, warrants, and materials seized pursuant to those warrants, and at that time, the warrants’ legality can be litigated.

[snip]

Finally, Toensing will have both a forum and an opportunity to litigate any privilege issues if there is a criminal proceeding. As the Second Circuit has noted, in affirming the denial of a return-of-property motion, “If [the grand jury’s] inquiry results in indictment, the lawfulness of the seizure will be fully considered upon a motion to suppress, and any ruling adverse to the defendant will be reviewable upon appeal from a final judgment; if the grand jury declines to indict the movant, or adjourns without indicting it, its property will most likely be returned, and if not, it can initiate an independent proceeding for its return.” [my emphasis]

But the filing repeatedly makes clear that not just Rudy, but also Toensing (whose lawyer made much of being informed that Toensing was not a target of the investigation), are subjects of this investigation.

But the Government specifically chose not to proceed by subpoena in this case, for good reason, and there is no precedent for permitting the subjects of an investigation to override the Government’s choice in this regard.

None of the cases cited by Giuliani or Toensing supports their proposed approach. Toensing principally relies on United States v. Stewart, No. 02 Cr. 395 (JGK), 2002 WL 1300059, at *4-8 (S.D.N.Y. June 11, 2002), 4 but that case is readily distinguishable because it involved the seizure of documents from several criminal defense attorneys who were not subjects of the Government’s investigation and had many cases before the same prosecuting office

[snip]

Such concerns merely serve to highlight the many countervailing problems with Giuliani and Toensing’s proposal: under their approach, the subjects of a criminal investigation would have the authority to make unilateral determinations not only of what is privileged, but also of what is responsive to a warrant.

[snip]

Nevertheless, Giuliani argues that, quite unlike other subjects of criminal investigations, he is entitled to review the affidavits supporting the warrants, which would effectively give him the extraordinary benefit of knowing the Government’s evidence before even being charged with a crime.

[snip]

Her request is contrary to law and would effectively deprive the Government of its right to evidence in the midst of a grand jury investigation so that she, the subject of that investigation, may decide what is privileged and what is responsive in those materials.

[snip]

In other words, accepting Giuliani and Toensing’s argument about the impropriety of using a filter team to review covert search warrant returns would entitle subjects of a criminal investigation to notice of that investigation any time a warrant were executed that related to them, no matter if the investigation were otherwise covert and no matter if the approving Court had signed a non-disclosure order consistent with the law. [my emphasis]

SDNY correctly treats Rudy and Toensing’s demands to review this material before SDNY can obtain it as a delay tactic.

Giuliani and Toensing’s proposal to allow their own counsel to conduct the initial review of materials seized pursuant to lawfully executed search warrants, including making determinations of what materials are responsive to the warrants, on their own timeline is without any precedent or legal basis. The Government is aware of no precedent for such a practice, which has the effect of converting judicially authorized search warrants into subpoenas.

Indeed, their discussion of the Lynn Stewart precedent emphasizes their goal of obtaining this material expeditiously.

None of the cases cited by Giuliani or Toensing supports their proposed approach. Toensing principally relies on United States v. Stewart, No. 02 Cr. 395 (JGK), 2002 WL 1300059, at *4-8 (S.D.N.Y. June 11, 2002), 4 but that case is readily distinguishable because it involved the seizure of documents from several criminal defense attorneys who were not subjects of the Government’s investigation and had many cases before the same prosecuting office. (See infra at pp. 33-34). In any event, the Court appointed a special master in Stewart, as the Government seeks here. And the procedures adopted in Stewart illustrate why the Government’s proposed approach is preferable. In Stewart, the presiding judge initially believed that the special master’s review could be conducted expeditiously because the defendant’s counsel could quickly produce a privilege log (as Toensing seeks to do here). Id. at *8. But 15 months later, the judge lamented that the special master still had not produced a report on the seized materials. United States v. Sattar, No. 02 Cr. 395 (JGK), 2003 WL 22137012, at *22 (S.D.N.Y. Sept. 15, 2003), aff’d sub nom. United States v. Stewart, 590 F.3d 93 (2d Cir. 2009). That cumbersome process stands in stark contrast to that adopted by Judge Wood in Cohen, wherein the special master completed her review on an expedited basis in parallel to Cohen’s counsel, and set deadlines for Cohen’s counsel to object to any of her designations. (Cohen, Dkt. 39 at 1-2). In Cohen, the special master was appointed in April 2018, and her review was complete by August 2018. The Cohen search involved approximately the same number of electronic devices seized here, but also included significant quantities of hard copy documents, which are not at issue here. In sum, the Court should follow the model set forth in Cohen, which resulted in an efficient and effective privilege review. [my emphasis]

Likewise, the government also offered to pay the costs of the Special Master, so long as the Special Master follows the expeditious procedure conducted with Michael Cohen’s content.

This Court should not permit Giuliani and Toensing to stall the investigation of their conduct in this manner, particularly where the Government’s proposal will allow them to conduct the same review in parallel with a special master. The Government’s proposal to appoint a special master to review the seized materials is the only proposal that is fair to all parties, respects the unique privilege issues that the 2021 Warrants may implicate, and will ensure that Government’s investigation proceeds without undue delay.6

6 In the Cohen matter before Judge Wood, the Government and Cohen split the costs associated with the special master’s privilege review. Here, because the Government made the initial request of the Court and considers the appointment of a special master appropriate in this matter, the Government is willing to bear the costs of the review insofar as the special master follows the procedures adopted by Judge Wood in the Cohen matter, namely to review the seized materials for potential privilege in parallel with counsel for Giuliani and Toensing. To the extent the Court adopts the proposals advanced by Giuliani and Toensing, including that the special master also conduct a responsiveness review of those same materials—which the Government strongly opposes for the reasons set forth above—Giuliani and Toensing should solely bear any costs associated with a responsiveness review, any review beyond the initial privilege review, or any cost-enhancing measures traceable to Giuliani and Toensing. [my emphasis]

I’m mindful, as I review the schedule laid out above, that Cohen was charged almost immediately after the Special Master review was completed, in August 2018. In addressing the partial overlap between the 2019 searches and the April ones, the government notes that, “the Government expects that some, but not all, of the materials present on the electronic devices seized pursuant to the Warrants could be duplicative of the materials seized and reviewed pursuant to the prior warrants.”

The government already knows what they’re getting with these warrants (and if they don’t get it, they’re likely to be able to charge obstruction because it has been deleted). They’re calling for a Special Master not because it provides any more fairness than their prior filter review (indeed, they speak repeatedly of the “perception of fairness”), especially since investigators are about to obtain the materials from the 2019 search, but because it ensures they can get this material in timely fashion, especially since, as it stands now, they’re going to have to crack the passwords on seven of the devices seized from Rudy.

The remaining seven devices belonging to Giuliani and his business cannot be fully accessed without a passcode, and as such the Government has advised Giuliani’s counsel that the devices can be returned expeditiously if Giuliani were to provide the passcode; otherwise, the Government does not have a timeline for when those devices may be returned because the FBI will be attempting to access those devices without a passcode, which may take time.

Yes, Rudy and Toensing are trying to get an advance look at how bad the case against them is. But they’re also hoping to delay, possibly long enough to allow a Republican to take over again and pardon away their criminal exposure.

Which suggests that all the hypotheticals about Rudy and Toensing being able to challenge these searches if they are indicted are not all that hypothetical. SDNY is just trying to get to the place where they can indict.

Peter Debbins, Shrink-Wrapped Spy

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Update: Debbins was sentenced to 188 months, slightly less than the government had requested. 

Peter Debbins, the former Special Forces guy who pled guilty to spying for GRU through 2011 last November, will be sentenced today at 10AM ET. Because the sentencing hearing will be in person in the press-stifling Eastern District of VA, there will be scant coverage of the hearing. So I wanted to make an observation beforehand, in case it’s useful for anyone who does show up to EDVA.

The government’s sentencing memo, which was entirely unredacted, basically gave Debbins some credit for cooperating, while at the same time suggesting that they didn’t really believe he had stopped spying at precisely the moment, in 2011, when a renewed TS/SCI clearance would have made him more useful as a spy.

Debbins’ sentencing memo basically argued that evil Russians exploited his same-sex attraction to psychologically torture him, which is why he spied.

Mr. Debbins is extremely self-reflective, recognizing that he had “excellent work performance, high social standing, many friends, and a happy family,” but that on the inside, “with all this psychological and physiological torture” all he wanted was to “unload these racing thoughts to pass my polygraph, without considering the legal ramifications.” Id. Looking back, Mr. Debbins “regrets going to Russia” because he should have known better how “its nefarious government regards people as an expendable commodity, ubiquitous with no intrinsic value and I was especially vulnerable.” Id. More powerfully, Mr. Debbins “regrets not confronting my mental illness earlier and am so heartbroken for all the pain and suffering it caused my family and country.” Id. In his final paragraphs, Mr. Debbins exclaims that the “the Russian GRU ruined my honor and potential as an American,” and asks this Court for its leniency to “restore to me what the Kremlin stole from me, my integrity as an American,” so that “Americans who wish to escape a similar situation are not hopelessly trapped.”

He submitted a declaration describing the symptoms of the “insanity” that caused him to spy.

I descended into insanity unable to distinguish between reality and fantasy, and from 2014 until my arrest, I experienced the following:

  • Suffered from insomnia which gave me 3 hours of sleep a night
  • Had bizarre dreams, night terrors, and hallucinations of meeting with the GRU. I even thought they were in my house and I removed the smoke detectors believing they were surveillance devices.
  • Crossed moral boundaries
  • Was always in a manic state of high energy
  • My mind would race constantly
  • Conducted trances to enter into the “subconscious universe”
  • Believed I could communicate via telepathy and dreams
  • Excessively used caffeine, alcohol, and sleeping medication
  • Believed in signs and omens
  • Was paranoid of the GRU and loved ones. I thought my wife and daughter were working for the GRU, which may explain why I didn’t pass the 2019 FBI polygraph. The FBI didn’t believe me when I told them that I had no post-2010 contacts
  • Believed the souls of my aunts and uncles who perished from Stalin’s famines were living through me
  • Created fantasies of past misdeeds needing atonement
  • Had delusions of becoming a double agent
  • As a CI professional, I was becoming that what I gazed upon and demonized myself as having affinity to Russia.

The government’s response to Debbins’ submission, which was heavily redacted, basically called bullshit on Debbins’ explanations, laying out with a declaration from one of the FBI Agents who interviewed Debbins over a series of meetings from July to December 2019 how Debbins’ current claims to be motivated by shame about his same-sex attraction conflicts with his comments throughout 2019, when Debbins said he spied out of loyalty to Russia.

During the last interview conducted on December 20,2019, I asked Debbins, “what was the biggest thing … that you think they used, overtly, covertly, implicitly, to encourage the relationship?” Debbins answered, “They just let me feel validated. You know … my meaning … was as a loyal son of Russia. Uhm, I felt, you know, encouragement from them.” Debbins explained, “my mother being Russian, … they … help[ed] reinforce that self-image. “

I assumed, as I know several other people tracking this case assumed, that the large redactions in the government filing were — as most redactions in EDVA are — about national security. I assumed that the boilerplate in the motion to seal the government response would, like most boilerplate in EDVA, discuss the need to seal for national security purposes.

But it doesn’t. It reveals that those sealed sections address Debbins’ confidential health information, his psychiatric diagnosis.

The United States seeks to file the Government’s Response Brief under seal because it contains information from two filings that the Court recently sealed at the request of the defense. See Order (May 10, 2021) (Dkt. No. 52). As the defense explained in its motion to seal, those filings contained confidential health information regarding the defendant.

Sure, the government cheated in one redaction in their footnote 3, which probably rebuts Debbins’ claim to have been fully cooperative with the FBI. But otherwise, we should assume the large swaths of redacted material address Debbins’ psychiatric evaluation.

That’s important, because Debbins is relying on a psychiatric assessment by David Charney.

This behavior from years ago corroborates Dr. Charney’s psychiatric assessment of Mr. Debbins as it relates to his [redacted]

[snip]

This Court is extremely familiar with other such espionage cases, like that of Robert Hanssen, whose espionage activities led to both the imprisonment and deaths of Americans. Another individual, Aldrich Ames, compromised more highly classified CIA assets than any other spy in history, until Robert Hanssen came along. Both Hanssen and Ames received life sentences. Earl Pitts, with whom Dr. Charney is intimately familiar, sold secrets to the Soviets and received hundreds of thousands of dollars for his information. Mr. Pitts received a twenty-seven (27) year sentence. Brian Regan wrote letters to Saddam Hussein, Libya, and China offering to sell information for millions of dollars. He had downloaded tens of thousands of classified documents and was arrested on a plane to Switzerland with the documents. He was sentenced to life in prison after being found guilty by a jury.

[snip]

As such, considering these facts and the psychiatric assessment by Dr. Charney, Mr. Debbins is deserving of a sentence significantly below the low-end of the guidelines.

David Charney is a psychiatrist who worked with the defense teams of Earl Pitts, Robert Hanssen, and Brian Regan — several of those spies that, Debbins is arguing, he is not as bad as. Charney has a non-profit pitching an alternative approach for insider threats, reconciliation, which involves lowering the costs of spies turning themselves in.

Charney alluded to working with Debbins in a December Spy Talk piece in which he argued that rather than the obvious motivations (in Debbins’ case, that he’s loyal to Russia), people actually spy for subconscious reasons only accessible with the help of a shrink.

Trying to understand the psychology of a mole is tougher than it first appears. The acronym MICE is bandied about in intelligence community circles because it seems to cover all the bases of why trusted people turn coat: Money, Ideology, Compromise, Ego. From my experience with year-long interviews of three caught spies, including the notorious Robert Hanssen, and lately with a fourth spy I cannot yet name, I believe the acronym MICE does not suffice.

Human beings are far more complex than the limits of the acronym. There are deeper layers that, in fact, may be far more important. Those may not be fully clear even to the spies themselves: They are subconscious. To simplify things for themselves, disaffected spies try to apply a veneer to their motivations that seems internally plausible. They will seize upon rationalizations that elevate their motivations to appear to serve higher purposes, which is when ideology comes into play. Ideology provides a seemingly coherent higher purpose to their life choices, a morally glorious dimension to their decisions to cross the line. [my emphasis]

Charney’s theory (which he’s pitching to the IC) argues that if only spies can turn themselves in early in their career without the risk of prison time, it’ll lead more spies to do so when they first come to regret their decision.

When someone decides to step over the line to become an insider spy, he or she now find themselves stuck and trapped. It dawns on them that they have no way out. They come to realize it’s unthinkable to beg to be released from their handler because too many bad things can happen. Think of the Mafia.

By the same token, to turn themselves in to their home agency’s security office offers no better prospects. The insider spy cannot expect to be welcomed back. More likely, they spy will face severe punishments leading to career termination and everyone in the intelligence community knows this.

Being stuck in this no-win situation causes the insider spy to resign to stay put, take their chances, and hope for the best. Lacking any viable alternatives, they are forced deeper into the arms of the hostile intelligence service that owns them. And the damages they inflict on our national security accumulate year by year.

What if there were a way out? What if there were an alternative pathway (reconciliation) so an insider spy could voluntarily turn himself or herself in? What if there were a recognized, safe, government-sanctioned exit mechanism? Imagine such a thing.

If reconciliation were made available, what could possibly motivate an insider spy to consider it? The single most important motivator would be that he will not be sentenced to prison. From the perspective of an insider spy, prison would be a deal-breaker. [emphasis original]

Charney may well be right that the US government’s draconian approach to national security crimes ends up doing as much harm as good. But Charney has at the very least a predisposition — and possibly a significant financial incentive — to tell a story about Debbins that blames The Closet for his spying rather than ego, rather than the pride in being Russian that Debbins used to explain his spying before Charney got involved. And Debbins’ lawyer has an incentive to blame The Closet rather than Russian nationalism as well, if only to explain away lingering government concerns that there’s no way Debbins would have stopped spying just when the spying became really useful to Russia, when he got his TS/SCI clearance.

As the government notes in their response, however, Charney’s theory doesn’t apply here because Debbins only turned himself in after failing a polygraph.

There’s another problem with applying Charney’s theories to Debbins. Debbins is right that he’s different than those others in Charney’s comparison set: Pitts, Regan, and (especially) Hanssen. Debbins was not recruited at a time when he was disillusioned with his career, like Hanssen was. Rather, Debbins was recruited from a young age and most of the things he did before 2011 — before he got his TS/SCI restored — were largely grooming activities, grooming activities that largely governed the decisions that put Debbins in a national security position in the first place.

I assume the government makes some of these points in the redacted sections. So the hidden stuff is fairly explainable, once you realize that this is largely about Charney’s arguments about spying.

It’s the unredacted stuff in the government’s response that is still inexplicable. When someone reneges on a statement of responsibility, the government never blows that off in sentencing filings. When Mike Flynn reneged on responsibility for lying to the FBI, for example, prosecutors got all of DOJ to buy off on a much harsher sentencing memo, even though it would have no impact on Flynn’s sentencing guidelines.

Here, however, the government basically argues Debbins’ attempts to back out of things he said when he pled in November will all get accounted for in the sentence they requested before he disclaimed responsibility.

The Government submits that Debbins’s failure to accept responsibility for his conduct and false statements support a guidelines sentence of seventeen years.1

1 The Government does not request that the Court revise the guidelines calculation to take away the 3-level reduction that the probation officer credited Debbins for his timely plea under U.S.S.G. § 3E1.1. Instead, the Government asks the Court to consider Debbins’s failure to accept responsibility and false statements in imposing a substantial sentence within the guidelines range, pursuant to 18 U.S.C. § 3553(a).

Effectively, the government is doing the unheard of thing of having someone dismiss the damage he did to national security concerns with no cost imposed. In EDVA, no less!

The debate at EDVA today may be about Charney’s theories (though I would be shocked if Judge Claude Hilton buys any of this — I wouldn’t be surprised if he sentenced Debbins to more than the 17 years the government is requesting). But the real drama, in my opinion, has to do with why the government is acting so uncharacteristically forgiving.

Will the GOP Demand Ron Johnson Be Stripped of Committee Assignments for Ignoring a Defensive Briefing?

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There’s been a lot of attention on this WaPo story, which had to retract a report that Rudy Giuliani had gotten a defensive briefing long after the time he helped get Marie Yovanovich fired (which is reportedly what he is being investigated for), but well before he continued to peddle Russian disinformation even after Treasury sanctions would have made it legally problematic to do so (indeed–that may be the implication of this NBC story on the decision not to give him a briefing). I mean, Rudy’s right to be pissed that WaPo claimed that he had a specific warning on top of the zillion other warnings that were in plain sight, but it’s not clear it helps him legally in the least.

There’s been less consideration of the implications of Ron Johnson’s admission that he did get a defensive briefing, but he blew it off.

The FBI last summer also gave what is known as a defensive briefing to Sen. Ron Johnson (R-Wis.), who ahead of the election used his perch as chairman of the Senate Homeland Security and Governmental Affairs Committee to investigate Biden’s dealings with Ukraine while he was vice president and his son Hunter Biden held a lucrative seat on the board of a Ukrainian energy company.

Johnson, a staunch Trump ally, recalled receiving a vague warning from FBI briefers in August, but he said Thursday that there was no substance to their cautionary message and that he did not view the meeting as a “defensive briefing” on his oversight of the Biden family’s foreign business ventures.

“Regarding reports that I received an FBI briefing warning me that I was a target of Russian disinformation, I can confirm I received such a briefing in August of 2020,” Johnson said in a statement to The Washington Post. “I asked the briefers what specific evidence they had regarding this warning, and they could not provide me anything other than the generalized warning. Without specific information, I felt the briefing was completely useless and unnecessary (since I was fully aware of the dangers of Russian disinformation).

“Because there was no substance to the briefing, and because it followed the production and leaking of a false intelligence product by Democrat leaders, I suspected that the briefing was being given to be used at some future date for the purpose that it is now being used: to offer the biased media an opportunity to falsely accuse me of being a tool of Russia despite warnings.”

Remember that for months, Republicans have been attacking Eric Swalwell because, before he was on the House Intelligence Committee, he got a defensive briefing about a woman who, the FBI informed him, was recruiting for China. He stopped talking to the woman and cooperated with the FBI, doing precisely what you’re supposed to do after getting a defensive briefing.

Nevertheless, the GOP has repeatedly used the story to call for Swalwell to be removed from HPSCI. Kevin McCarthy, after a briefing on the matter, narrowly danced with leaking information while judging that Swalwell should not be on HPSCI. Devin Nunes (whose ties to Rudy’s legal woes may soon get rather interesting) suggested Swalwell’s focus on Russia was done at the behest of China. The two staged a vote to throw him off HPSCI that failed.

And even Ron Johnson got in the act, claiming (though the timeline makes no sense) that the Chinese got Swalwell appointed to HPSCI and claiming that China was grooming Swalwell.

Johnson launched that attack in December 2020, months after he had been warned that Russia was grooming him the same way.

Only, unlike Swalwell, Johnson blew off that warning.

According to the GOP standard, shouldn’t Johnson be stripped of his Committee positions, particularly Homeland Security and Foreign Relations?

Public domain

Poor Donald Trump Got Dumped

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h/t rocksunderwater (public domain)

Poor Donald Trump.

He’s been having a terrible, horrible, no good, very bad day, every day for about the last six weeks. He lost the election, then in his battle to overturn things in court he lost and lost and lost and lost some more, each time more bigly than that last. But the worst day, the most terrible horrible no good very bad day of them all, had to be last Sunday, when the Russian electronic spying operation using Solar Wind to hack into highly sensitive government and corporate networks became public.

There has been a lot written about the potential damage of the Solar Wind mess, both in terms of national security and corporate secrets, most of which is speculation. But there is one bit of enormous damage that is obvious, not at all speculative, but is getting no attention at all from anyone.

Along with the rest of the world, Donald Trump just learned that he got dumped by Vladimir Putin.

We almost made it up where they are
But losing your love
Brought me down hard
Now I’m just hanging, just getting by
Where expectations aren’t that high, but

Here on cloud 8
A lotta nothing’s going on
I’m just drifting day to day
Out here on my own
While up on cloud 9
I hear ’em party all the time
They don’t hear my heart break
Down here on cloud 8

Poor Donald. He just learned that Putin has been doing stuff behind his back, all while Putin has been telling him that he’s Putin’s BFF. It’s been almost a week, and poor Donald still can’t come to grips with it.

He’s tweeted about getting the COVID-19 vaccines out (“Yay Me!”) He’s tweeted about the “fact” that he actually won the election and condemned everyone who has failed to have his back (Brian Kemp, he’s looking at you). He’s tweeted about bizarre public health theories (“masks and lockdowns don’t work!”). He’s tweeted about vetoing the defense bill in order to defend 19th century traitors. He’s tweeted about Senator-to-be Tommy Tuberville, on whom he’s pinning his hopes of overturning the election when the electoral college vote gets to Congress. He’s tweeted against Mitch McConnell for arguing against this. But despite this flood of tweets, the one thing he can’t bear to tweet about is being dumped.

And it’s not just that he got dumped. It’s that Putin cheated on him.

He cheated on Trump for months, privately whispering sweet nothings in his ear in their special phone calls, while working behind Trump’s back. Worst of all, in Trump’s mind the hack tells Trump that Putin believed that Trump would lose, and Putin needed to take advantage of Trump’s blindness while he could.

And it’s not just that Putin cheated on him and didn’t believe in him. It’s that everyone knows that Putin cheated on him

Angela Merkel knows. Boris Johnson knows. Emmanuel Macron knows. Justin Trudeau knows. Xi Jinping knows. Kim Jong Un knows. Jacinda Ardern knows. Even Andrés Manuel López Obrador knows about it, and Trump is sure that everyone in Mexico is laughing at him. Even the nobodies who rule those shithole countries know, and they’re laughing too. Putin made him look like a fool in front of everyone in the whole cafeteria world, and they’re all laughing at him.

And it’s not just that Putin made him look like a fool. It’s that there’s not a damn thing that Trump can do about it.

Everyone knows that Trump has been played, bigly. Trump can’t run a PR operation to deflect things. He can’t deny that it ever happened. He can’t say that he dumped Putin and not the other way around. He can’t pretend it doesn’t hurt. And he can’t keep everyone in the whole damn world from talking about it, and from laughing about him behind his back.

While up on cloud 9
I hear ’em party all the time
They don’t hear my heart break
Down here on cloud 8
They don’t hear my heart break
Down here on cloud 8

And before you think this is all a good laugh, and that Trump got what’s been coming to him, I’ve got two words for you: John Hinckley. Something tells me that Trump does not take well to being dumped, being cheated on, and being held up before the world as a fool.

And that scares me.

Creative Commons Attribution 2.0 Generic

A Most Ordinary Passing of A Most Extraordinary Writer

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John Le Carré, giving a speech at the German Embassy in London [Creative Commons Attribution 2.0 Generic]

I don’t remember when I first read John Le Carré – sometime in the late 70s or early 80s, probably after watching the BBC miniseries of his novel Tinker, Tailor, Soldier, Spy when it was shown on PBS. The genre was ostensibly a spy thriller, but it was not like other spy thrillers then in circulation.

Consider the central character of George Smiley, whom Le Carré introduces like this:

Mr. George Smiley was not naturally equipped for hurrying in the rain, least of all at dead of night. . . Small, podgy and at best middle-aged, he was by appearance one of London’s meek who do not inherit the earth. His legs were short, his gait anything but agile, his dress costly, ill-fitting and extremely wet. His overcoat, which had a hint of widowhood about it, was of that black, loose weave which is designed to retain moisture. Either the sleeves were too long or his arms too short for, . . . when he wore his mackintosh, the cuffs all but concealed the fingers. For reasons of vanity he wore no hat, believing rightly that hats made him ridiculous. “Like an egg cosy,” his beautiful wife had remarked not long before the last occasion on which she left him, and her criticism as so often had endured. Therefore the rain had formed in fat, unbanishable drops on the thick lenses of his spectacles, forcing him alternately to lower or throw back his head as he scuttled along the pavement which skirted the blackened arcades of Victoria Station.

Not to put too fine a point on it, but George Smiley is not James Bond, Jack Ryan, or Jason Bourne.

To my great delight, Le Carré wrote characters who are so delightfully ordinary, grappling with concerns and issues equally ordinary, even while dealing with concerns and issues that were extraordinary in the extreme. Yes, he wrote of the secret world of spies and the not-so-secret world in which they do their spying, but there were shades of gray all over the place, making his writing much more engaging than folks like Fleming or Clancy. Le Carré’s novels, set in the cold war and post-cold war world, explored loyalty and betrayal, failure and success, enemies and allies (and associates who are neither), and human frailty and strength, and I loved the way he made me explore those very same things.

John Le Carré passed away last night from pneumonia at age 89 – a most ordinary passing of a most extraordinary writer.

One of the things that grabbed me initially in his writing is the utter absence of over-the-top James Bond-ish spy gadgets that appear at just the right moment to rescue the hero or the mission. Similarly, his novels are not filled with physically strong and athletic heroes like Jason Bourne, but ordinary folks with bad backs, heart problems, and old injuries that slow them down. Most of all, the stories explore notions of empire (lost ones, struggling ones, and ones looking to emerge) and individuals, unafraid to ask difficult questions about one’s own nation or self, and face the flaws that emerge with the answers.

Another thing that drew me in was the manner in which he described the world of government. I had just finished serving as an intern at the State Department, and the world of Tinker, Tailor rang true. Yes, the government of which he wrote was English, not American, and most of the people in the stories were in the secret services, not the diplomatic service, but nevertheless, the way he described them fit my limited but at that time very fresh experiences in DC. Here were government employees who had to worry about their budgets, who had to negotiate (or fight) bureaucratic battles with other departments, who had to wrestle with how much (or how little) to tell their bosses or their allies, and who had to deal with the Ordinary Stuff of life while also dealing with Very Important Stuff at work.

But most of all, Le Carré was a great storyteller. One indication, from his obituary at The Guardian: “The world of “ferrets” and “lamplighters”, “wranglers” and “pavement artists” was so convincingly drawn that his former colleagues at MI5 and MI6 began to adopt Le Carré’s invented jargon as their own.” When the spies themselves are so drawn in to the story you are telling about spies, you’re doing it right.

Le Carré is also indirectly responsible for drawing me to Emptywheel, many years ago.

In Tinker, Tailor, Le Carré spins a tale of the unmasking of a Russian mole embedded in the higher reaches of the British secret service known as “The Circus.” The Honourable Schoolboy is the sequel, in which Smiley and his colleagues have to deal with the aftermath of all the security breaches exposed in the earlier book. Near the opening, Smiley gathers the remains of the Circus leadership, and after displaying in excruciating detail the extent of the damage done to the Circus, Smiley points to the way forward:

The premise, said Smiley, when they had resettled, was that Haydon [the mole] had done nothing against the Circus that was not directed, and that direction came from one man personally: Karla [head of the Russian secret service].

The premise was that in briefing Haydon, Karla was exposing gaps in Moscow Centre’s knowledge; that in ordering Haydon to suppress certain intelligence that came the Circus’ way, in ordering him to downgrade or distort it, to deride it, or even to deny it circulation altogether, Karla was indicating which secrets he did not want revealed.

“So we can take back-bearings, can’t we, darling?” murmured Connie Sachs [the ancient head of the Russian desk at the Circus], whose speed of uptake put her, as usual, a good length ahead of the field.

“That’s right, Con. That’s exactly what we can do,” said Smiley gravely. “We can take the back-bearings.” He resumed his lecture, leaving Guillam [another senior spook], for one, more mystified than before.

By minutely charting Haydon’s path of destruction (his pug marks, as Smiley called them); by exhaustively recording his selection of files; by reassembling — after aching weeks of research, if necessary — the intelligence culled in good faith by Circus outstations, and balancing it, in every detail, against the intelligence distributed by Haydon to the Circus’s customers in the Whitehall market-place, it would be possible to take back-bearings (as Connie so rightly called them), and establish Haydon’s, and therefore Karla’s, point of departure. Said Smiley.

Once a correct back-bearing had been taken, surprising doors of opportunity would open, and the Circus, against all likelihood, would be in a position to go over to the initiative — or, as Smiley put it, “to act, and not merely to react.”

Call me crazy, but isn’t that a perfect description of what Marcy does here at Emptywheel, supported by other frontpagers and the EW commentariat? Read the documents, read between the lines of the documents, compare these documents with those documents, look at what is said and what is not said, build the timelines, and pretty soon you’ll see what someone doesn’t want you to see.

After years of being enthralled by Le Carré, how could I not get drawn in to this place?

*raising a glass*

To a most extraordinary writer, at his most ordinary passing.

*ding*

Republicans Push to Punish Eric Swalwell because He Didn’t Sell Out the Country Like They Did

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I’d like to tell a story about how six different men responded when law enforcement approached them about possible compromise by foreign spies.

Carter Page knowingly shares non-public information with known Russian spies

When Carter Page learned that he had been named in an indictment of Russian spies, he called up a Russian minister at the UN to tell him, in the spirit of openness, he was the guy identified as the recruiting target in the indictment. When the FBI interviewed him about his relationships with those foreign spies, Page admitted he had called the Russian minister, but explained that his relationship with the Russian intelligence officer was positive for him. He later explained that sharing non-public information with people he knew to be foreign spies helped both the US and Russia. Page enthusiastically took a trip to Moscow to give two speeches that — witnesses observed — normally featured far more prominent speakers than Page. Page came back from that trip bragging about the “open checkbook” he had been offered to start a pro-Russian think tank. When Page was asked a year later whether he could see why people thought he was being recruited, he disagreed and — according to an FBI 302 — backed off his prior admission to the FBI that he had reached out to the Russian minister.

For three years, the GOP has claimed that Carter Page is a maligned victim of FBI overreach.

George Papadopoulos refuses to explain the back channel meeting with Putin he tried to schedule

When the FBI first interviewed George Papadopoulos about the suspicious job offers Sergei Millian offered him — an offer to pay him so long as he also worked at the White House, asked how he learned in advance that the Russians had dirt on Hillary that they planned to release to help Trump get elected, and told him they thought he was being recruited, he lied. Among other things, Papadopoulos hid his entire relationship with one Russian national, Ivan Timofeev, whom he had interacted with. After the interview, Papadopoulos called Trump’s personal lawyer and told him of the interview. As others did, Papadopoulos crafted a false statement to share with Congress. In subsequent interviews, even after he agreed to cooperate, Papadopoulos hid the existence of a phone he used to interact with Joseph Mifsud. When asked about notes planning a back channel meeting with Putin’s people in London in September that ultimately didn’t happen, Papadopoulos claimed he couldn’t read his notes to explain the plans.

The GOP not only claimed that Papadopoulos was a maligned hero, the Attorney General of the United States assigned a US Attorney, in part, to fly around the world chasing Papadopoulos’ conspiracy theories in an attempt to substantiate his denials that these were Russian assets trying to cultivate Papadopoulos.

Mike Flynn gets a defensive briefing then hides his Turkish clients

Shortly after the FBI sat down with Donald Trump and Mike Flynn to warn them, generally, about how foreign intelligence services would increase their focus on the two and those around them, Mike Flynn went back to his business partner and the go-between with his Turkish clients, and adopted a new name for the project for Turkey — Confidence rather than Truth — and a payment vehicle that would hide the true client, attempting to sever the prior discussions directly with Turkey’s ministers from the half-million dollar deal that resulted.

Trump just pardoned Flynn for his efforts to hide those ties.

Rather than cooperating with the FBI about Flynn’s suspect Russian calls, Trump fires them

When DOJ came to the White House on January 26, 2017 and told White House counsel Don McGahn that Mike Flynn — seemingly without any approval from Donald Trump himself and clearly without notifying the Vice President — had called up the Ambassador from Russia and, in a conversation where the Ambassador was addressing other issues, raised sanctions imposed to punish Russia and asked the Ambassador not to respond in kind, and then lied about that publicly, McGahn assigned lawyer John Eisenberg to figure out whether Flynn could be prosecuted. Chief of Staff Reince Priebus tried to find out what kind of surveillance Flynn had been and was under. Trump first asked the head of the FBI for loyalty, then asked him to let the investigation of Flynn go, and then fired him to end the investigation.

Trump just pardoned Mike Flynn claiming that it was wrong for the FBI to try to figure out why Flynn had secretly undermined sanctions and then lied about it.

Trump calls Paul Manafort “very brave” for hiding details about his Russian intelligence officer partner

When the government entered into a cooperation agreement with Paul Manafort in 2018, in part to learn what Manafort knew about his business partner Konstantin Kilimnik’s ties to Russian intelligence, and particularly to learn why Manafort had swapped campaign polling data and the campaign’s strategy to win swing states with a discussion of carving up Ukraine and payoffs from Ukranian and Russian oligarchs, the President’s defense attorney remained in regular contact with Manafort’s lawyer to learn about the interrogations. After prosecutors told Judge Amy Berman Jackson on November 26 that Manafort had been lying rather than cooperating — in significant part, it would become clear, to protect his Russian spy business partner — Rudy complained on the President’s behalf about “the un-American, horrible treatment of Manafort.” Not long later, Trump would call Manafort “very brave” for (among other things) lying to prosecutors to protect his Russian spy business partner.

Eric Swalwell cooperates with the FBI and cuts off the Chinese intelligence officer trying to recruit him

According to a recent Axios piece witten without context, when the FBI approach Eric Swalwell and told him a woman volunteering with his campaign was a Chinese spy, he cooperated with the FBI and cut off all contact with her.

A statement from Swalwell’s office provided to Axios said: “Rep. Swalwell, long ago, provided information about this person — whom he met more than eight years ago, and whom he hasn’t seen in nearly six years — to the FBI. To protect information that might be classified, he will not participate in your story.”

What happened: Amid a widening counterintelligence probe, federal investigators became so alarmed by Fang’s behavior and activities that around 2015 they alerted Swalwell to their concerns — giving him what is known as a defensive briefing.

Swalwell immediately cut off all ties to Fang, according to a current U.S. intelligence official, and he has not been accused of any wrongdoing.

For this, GOP Majority Leader Kevin McCarthy and others argue, Swalwell should be kicked off the House Intelligence Committee.

McCarthy, however, is demanding answers from Pelosi and Rep. Adam Schiff, chair of that committee, after Swalwell said they knew about the report.

“This is a national security threat,” McCarthy said. “Now we have Eric Swalwell, who’s been swindled by the Chinese, but what’s even more interesting here is why did he attack the American Director of Intelligence John Ratcliffe’s report talking about the expansion of China spying throughout … just last week. He attacked … Ratcliffe defending China.”

“This man should not be in the intel committee. He’s jeopardizing national security,” he doubled down, adding, “When did Nancy Pelosi know of this and why did she maintain him on the committee? Adam Schiff, who has spent four years as chair worried about the foreign intervention into our country, knowingly keep an individual on the committee, if he knew, as Swalwell says, that he was with a Chinese individual who was a spy, who helped him run for Congress?”

I can only assume that McCarthy thinks that Swalwell cooperated too much with the FBI and should have lied or fired people instead.

 

Peter Debbins Pleads

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Peter Debbins — who was charged with spying for Russia in August — pled guilty today. The statement of facts he pled to almost exactly maps his indictment, with two main additions. The statement explains the EDVA venue I was so so interested in.

From in or around December 1996 to in or around January 2011, in an offense begun and committed outside of the jurisdiction of any particular State or district of the United States, the defendant, also known as “Ikar Lesnikov,” who after the conduct required for the offense occurred was arrested in and first brought to the Eastern District of Virginia, and whose last known address is in the Eastern District of Virginia, did unlawfully and knowingly conspire with others to communicate, deliver, and transmit to a foreign government, to wit: the Russian Federation (hereinafter, “Russia”), and representatives, officers, agents, employees, subjects, and citizens thereof, directly and indirectly, documents, writings, and information relating to the national defense of the United States, with the intent and reason to believe that such documents, writings, and information were to be used to the injury of the United States and to the advantage of a foreign government, namely, Russia.

Thanks for explaining that, DOJ! Debbins was in the UK when they first started this investigation, which gave the government the choice to land him in the least friendly venue for spies and leakers.

In addition, there’s several paragraphs that seem inconsistent with the fact that the information he admitted sharing was classified Secret.

2. As of 2008, Executive Order 12958 signed on April 17, 1995, as amended by Executive Order 13292 signed on March 25, 2003, governed the system for classifying, safeguarding, and declassifying national security information.’ Under that Executive Order, national security information was classified as “TOP SECRET,” “SECRET,” or “CONFIDENTIAL.” National security information was information owned by, produced by, produced for, and under the control of the U.S. Government, and that was classified as follows:

a. Information was classified as TOP SECRET if its unauthorized disclosure reasonably could be expected to cause exceptionally grave damage to the national security that the original classification authority was able to identify and describe.

b. Information was classified as SECRET if its unauthorized disclosure reasonably could be expected to cause serious damage to the national security that the original classification authority was able to identify and describe.

c. Information was classified as CONFIDENTIAL if its unauthorized disclosure reasonably could be expected to cause damage to the national security that the original classification authority was able to identify and describe.

3. Access to national security information classified at any level could be further restricted through compartmentation in Sensitive Compartmented Information (SCI) categories. Only individuals possessing both the appropriate security clearance and specific, additional permissions could have authorized access to SCI.

That suggests there’s more he shared that was far more sensitive, information DOJ doesn’t want to lay out (unsurprisingly). If so, that’s covered by this boilerplate language.

This statement of facts includes those facts necessary to support the plea agreement between the defendant and the United States. It does not include each and every fact known to the defendant or to the United States, and it is not intended to be a full enumeration of all of the facts surrounding the defendant’s case.

That said, the plea itself emphasizes that the NDI he shared with Russia was classified Secret.

As set forth in the accompanying statement of facts, the national defense information that is the subject of this conspiracy and the terms of this plea agreement was, and is, classified at the Secret level.

While that still exposes him to a possible life sentence, the plea puts his guidelines at 39, with the possibility that he’ll get a two or three point admission of guilt reduction, which would put him in a 188 to 235 month range. But the government is giving him no guarantees at all.

The United States and the defendant have not agreed on any further sentencing issues, whether related to the Sentencing Guidelines or the factors listed in 18 U.S.C. § 3553(a), other than those set forth above or elsewhere in this Plea Agreement. Any stipulation on a Guidelines provision does not limit the parties’ arguments as to any other Guidelines provisions or sentencing factors under Section 3553(a), including arguments for a sentence within or outside the advisory Guidelines range found by the Court at sentencing.

The government included intentional incomplete testimony among the reasons it can breach the plea agreement at a preponderance of the evidence standard.

If the defendant withdraws from this agreement, or commits or attempts to commit any additional federal, state, or local crimes, or intentionally gives materially false, incomplete, or misleading testimony or information, or otherwise violates any provision of this agreement, then:

That may be boilerplate, but in this case it will ensure that Debbins honestly provides anything more sensitive about his relationship with Russia.

Again, none of that is surprising. It just suggests that if there’s something more here, DOJ isn’t going to reveal that.