After Years of Squealing about “FISA Abuse,” Trump’s DNI Nominee Won’t Rule Out Warrantless Wiretapping

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As I noted earlier, in his confirmation hearing to be Director of National Intelligence, John Ratcliffe made it crystal clear he will lie to protect Trump by stating that he believed Trump has always accurately conveyed the threat of COVID-19.

Ratcliffe made some other alarming comments. For example:

  • He repeatedly said that Russia had not changed any votes in 2016. The Intelligence Community did not review that issue and Ratcliffe has no basis to make that claim.
  • Ratcliffe also repeatedly refused to back SSCI’s unanimous conclusion that Russia intervened to help Trump.
  • He dodged when Warner asked him to promise to brief the committee even if Russia were trying to help Trump.
  • When asked whether he supported Inspectors General, Ratcliffe said that he supported Michael Horowitz when others attacked him but then suggested he disagreed with Horowitz’ “opinion,” making it clear he does not accept Horowitz’ conclusions that he found no evidence that bias affected the investigation into Trump’s flunkies.
  • Ratcliffe claimed he didn’t have enough information to address Michael Atkinson’s firing.
  • When Dianne Feinstein read his quotes about the Ukraine whistleblower to him, Ratcliffe pretended those quotes were about something they weren’t.
  • He might not provide intelligence on COVID-19 that showed how Trump blew it off.
  • He suggested that if only the IC had reviewed open source data, they might have warned of the dangers of COVID-19, which they did warn of using both OSINT and classified intelligence.
  • He refused to answer whether he thought there was a Deep State in the IC, and later suggested a few members of the IC were Deep State.
  • Ratcliffe refused to agree to release a report showing that Mohammed bin Salman had Jamal Khashoggi executed and chopped into bits, as required by last year’s Defense Authorization. He suggested that it might have been properly classified; as DNI, he would be the Original Classification Authority to make that decision.
  • He refused to answer clearly on whether Trump’s policies on North Korea and Iran have worked.
  • He later suggested he might not share intelligence if it were too sensitive, again ignoring that as OCA he gets to decide whether it’s really classified.
  • After saying he would appear for a Global Threats hearing, he then dodged when later asked whether he would appear before the committee generally.

Ratcliffe made several comments to make it clear he would side with expansive Unitary Executive interpretations holding that:

  • There are limits to whistleblower protection.
  • If torture were deemed legal it would okay to do it.
  • The executive can use warrantless wiretapping.

There were a few additional hints about stuff going on right now:

  • Mark Warner said that intelligence professionals have been pressured to limit information they share with Congress.
  • Warner also said that Ric Grenell was undermining the IC’s election security group.
  • Both Warner and Richard Burr seemed concerned that the DNI would not declassify their 1000-page Volume V of their Report on Russia’s 2016 election interference (I’m not sure whether this assess the Steele dossier or lays out whether and how Trump “colluded” during 2016).
  • Martin Heinrich made it clear that Grenell is reorganizing the IC, without any consultation or approval from Congress.

It’s not just unqualified, he’s a sycophant. But it seems like there’s so much that Grenell is already screwing up, Republicans on the committee, at least, prefer Ratcliffe.

Update: Here are Ratcliffe’s Questions for the Record. They’re particularly troubling on sharing with Congress.

He twice refused to say that he wouldn’t impose loyalty tests.

QUESTION 39: Personnel decisions can affect analytic integrity and objectivity. A. Would you consider an individual’s personal political preferences, to include “loyalty” to the President, in making a decision to hire, fire, or promote an individual?

Answer: Personnel decisions should be based on qualifications, skills, merit, and other standards which demonstrate the ability, dedication and integrity required to support the central IC mission of providing unvarnished intelligence to policymakers.

B. Do you commit to exclusively consider professional qualifications in IC personnel decisions, without consideration of partisan or political factors?

Answer: Personnel decisions should be based on qualifications, skills, merit, and other standards that demonstrate the ability, dedication and integrity required to support the central IC mission of providing unvarnished intelligence to policymakers.

He refused to promise to keep the Election Threats Executive Office open.

QUESTION 45: Would you commit to keep the Election Threats Executive Office in place to ensure continuity of efforts, and build on the successes of the 2018 midterms?

Answer: If confirmed, I will work with IC leaders and ODNI officials to ensure the IC is well-positioned to address the election security threats facing our Nation.

He refused to promise to notify Congress if Russia starts helping Trump again.

QUESTION 53: Do you commit to immediately notifying policymakers and the public of Russian attempts to meddle in U.S. democratic processes, to include our elections?

Answer: If confirmed, I would work with the Committee to accommodate its legitimate oversight needs while safeguarding the confidentiality interests of the Executive Branch, including the protection from unauthorized disclosure of classified intelligence sources and methods

He suggested he had no problem with Section 215 being used to access someone’s browsing records.

QUESTION 7: Do you believe that Section 215 of the USA PATRIOT Act should be used to collect Americans’ web browsing and internet search history? If yes, do you believe there are or should be any limitations to “digital tracking” of Americans without a warrant, in terms of length of time, the amount of information collected, or the nature of the information collected (e.g., whether particular kinds of websites raise special privacy concerns)?

Answer: I believe it is important for the Intelligence Community to use its authorities appropriately against valid intelligence targets. The amendments to Title V of FISA made by Section 215 of the USA PATRIOT Act expired on March 15, 2020 and, to date, have not been reauthorized.

Ratcliffe dodged several questions about whether FISA was exclusive means to collect

Extra-Statutory Collection

QUESTION 9: Title 50, section 1812 provides for exclusive means by which electronic surveillance and interception of certain communications may be conducted. Do you agree that this provision of law is binding on the President?

Answer: If confirmed, I would work with the Attorney General to ensure that IC activities are carried out in accordance with the Constitution and applicable federal law.

QUESTION 10: Do you believe that the intelligence surveillance and collection activities covered by FISA can be conducted outside the FISA framework? If yes, please specify which intelligence surveillance and collection activities, the limits (if any) on extra-statutory collection activities, and the legal authorities you believe would authorize those activities.

Answer: If confirmed, I would work with the Attorney General and the heads of IC elements, as well as the General Counsels throughout the IC, to ensure that intelligence activities are conducted in accordance with the Constitution and applicable federal law. As set forth in Section 112 of FISA, with limited exceptions, FISA constitutes the exclusive statutory means by which electronic surveillance, as defined in FISA, and the interception of domestic wire, oral, or electric communications for foreign intelligence purposes may be conducted.

QUESTION 11: What would you do if the IC was requested or directed to conduct such collection activities outside the FISA framework? Would you notify the full congressional intelligence activities?

Answer: Consistent with the requirements of the National Security Act, I would keep the congressional intelligence committees informed of the intelligence activities of the United States, including any illegal intelligence activities. As you know, not all intelligence activities are governed by FISA.

If confirmed, I would work with the Attorney General and the heads of IC elements, as well as the General Counsels throughout the IC, to ensure that intelligence activities are conducted in accordance with the Constitution and applicable federal law.

Senator Wyden asked a question about the IC purchasing stuff they otherwise would need a warrant for.

QUESTION 12: Do you believe the IC can purchase information related to U.S. persons if the compelled production of that information would be covered by FISA? If yes, what rules and guidelines would apply to the type and quantity of the information purchased and to the use, retention and dissemination of that information? Should the congressional intelligence committees be briefed on any such collection activities?

Answer: Elements of the IC are authorized to collect, retain, or disseminate information concerning U.S. persons only in accordance with procedures approved by the Attorney General. As you know, not all intelligence activities are governed by FISA, and it is my understanding that in appropriate circumstances elements of the IC may lawfully purchase information from the private sector in furtherance of their authorized missions. Nonetheless, any intelligence activity not governed by FISA would be regulated by the Attorney General-approved procedures that govern the intelligence activities of that IC element. Consistent with the requirements of the National Security Act, if confirmed, I would keep the congressional intelligence committees informed of the intelligence activities of the United States.

 

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John Ratcliffe Demonstrates How He’ll Politicize Intelligence by Claiming Trump Has Been Honest about COVID-19

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John Ratcliffe just had his confirmation hearing to be Director of National Intelligence.

I’ll have more to say about what we learned about the Intelligence Committee after I walk June Bug the Terrorist FosteX Dog. But the main takeaway from the hearing is entirely encapsulated in this exchange (my transcription):

Kamala Harris: Do you believe President Trump has accurately conveyed the threat of COVID-19 to the American people?

Ratcliffe: Are you saying, presently?

Harris: We are in the midst of the pandemic, presently correct.

Ratcliffe: Can you repeat the question? I guess I’m misunderstanding the question. I’m sorry. Has he accurately represented the status of the pandemic?

Harris: Conveyed the severity of the pandemic, yes, Has he accurately conveyed the severity of COVID-19 to the American people.

Ratcliffe: I believe so.

Harris asked a question which has just one true answer. The only objective answer to this question is that no, Trump has not accurately conveyed the seriousness of COVID-19.

Ratcliffe answered yes.

Ratcliffe was asked over and over again whether he’ll politicize intelligence and each time he dutifully delivered his rehearsed answer, no, he won’t. Both Politico and NBC reported those rehearsed answers as the “news” of the hearing. Neither mentioned the Harris exchange, where Ratcliffe answered far more clearly than in any yes or no questions that he will, in fact, lie to the American people to serve Trump (and there were other instances where he made it clear he will politicize intelligence, just not so clear cut).

It is a matter of life or death during a pandemic to separate false information from truth. Everyone should be doing that, and such truthful reporting is supposed to be the job of journalists. For political accountability on the pandemic to happen, it must be clear that Trump appointed a sycophant as Director of National Intelligence, someone who is unwilling to tell the truth about it. It must be clearly reported that Ratcliffe lied in this hearing about a clear factual issue. Hiding that fact by treating Ratcliffe’s false assurances as truthful contributes to the danger of the pandemic.

Ratcliffe will be confirmed DNI. He might even get some Democratic votes, from people who view him as a less awful alternative than the Twitter troll turned German Ambassador turned part time DNI he would replace. But it matters that it be accurately reported that it was clear going into it that Ratcliffe would lie to and for Trump.

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NY Times Finds Trump Administration Inserted Wuhan Cables Into The Aluminum Tubes Echo Chamber

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In my last two posts, I went into detail on what is known on the scientific front about the origin of SARS CoV-2, the virus responsible for the COVID-19 outbreak and then into what evidence Shi Zhengli of the Wuhan Institute of Virology (WIV) has offered to refute the rumors of the virus escaping from her lab. This post will set aside discussion of the science (other than to eventually provide a few quotes that have been provided by scientists addressing these issues) and will instead focus on what has been increasing evidence that there has been a concerted effort akin to an information operation to create acceptance of the idea that the virus escaped from WIV. Today, the New York Times confirmed these suspicions and indicated clearly who is behind the operation. Here’s a partial screen capture of the story by a team that includes Mark Mazzetti and Adam Goldman:

Although I was becoming convinced of an information operation, I wasn’t sure who was orchestrating it. This Times article leaves no doubts:

Senior Trump administration officials have pushed American spy agencies to hunt for evidence to support an unsubstantiated theory that a government laboratory in Wuhan, China, was the origin of the coronavirus outbreak, according to current and former American officials. The effort comes as President Trump escalates a public campaign to blame China for the pandemic.

Some intelligence analysts are concerned that the pressure from administration officials will distort assessments about the virus and that they could be used as a political weapon in an intensifying battle with China over a disease that has infected more than three million people across the globe.

Most intelligence agencies remain skeptical that conclusive evidence of a link to a lab can be found, and scientists who have studied the genetics of the coronavirus say that the overwhelming probability is that it leapt from animal to human in a nonlaboratory setting, as was the case with H.I.V., Ebola and SARS.

The article even goes on to name some of those pushing the link to an escape from the lab, including Mike Pompeo and Anthony Ruggiero. Who is Ruggiero, you might ask? Oh, that answer is full of rich irony:

And Anthony Ruggiero, the head of the National Security Council’s bureau tracking weapons of mass destruction, expressed frustration during one videoconference in January that the C.I.A. was unable to get behind any theory of the outbreak’s origin. C.I.A. analysts responded that they simply did not have the evidence to support any one theory with high confidence at the time, according to people familiar with the conversation.

Here we have officials working for Trump who are actively pushing an unsubstantiated theory that could be used to spark an international conflict. And one of those officials just happens to work on the issue of weapons of mass destruction. Gosh, it’s not like that topic has ever led to problems based on manipulating information from the intelligence community, is it? In fact, the article eventually gets there on how this is looking like a replay of Iraq:

A former intelligence official described senior aides’ repeated emphasis of the lab theory as “conclusion shopping,” a disparaging term among analysts that has echoes of the Bush administration’s 2002 push for assessments saying that Iraq had weapons of mass of destruction and links to Al Qaeda, perhaps the most notorious example of the politicization of intelligence.

The C.I.A. has yet to unearth any data beyond circumstantial evidence to bolster the lab theory, according to current and former government officials, and the agency has told policymakers it lacks enough information to either affirm or refute it. Only getting access to the lab itself and the virus samples it contains could provide definitive proof, if it exists, the officials said.

And the parallels go even deeper:

The Defense Intelligence Agency recently changed its analytic position to formally leave open the possibility of a theory of lab origin, officials said. Senior agency officials have asked analysts to take a closer look at the labs.

The reason for the change is unclear, but some officials attributed it to the intelligence analyzed in recent weeks. Others took a more jaundiced view: that the agency is trying to curry favor with White House officials. A spokesman for the agency, James M. Kudla, disputed that characterization. “It’s not D.I.A.’s role to make policy decisions or value judgments — and we do not,” he said.

So now we even have the remains of Cheney’s “Team B” within DIA, itching to make Trump happy. For those who may have forgotten, we have none other than that neocon himself, Eli Lake, talking glowingly of the Team B folks and DIA pushing back on CIA even before the invasion of Iraq:

THE CURRENT SCHISM has roots going back to the early ‘70s. In 1974 a collection of neoconservative foreign policy intellectuals on the President’s Foreign Intelligence Advisory Board began attacking the CIA-authored NIEs for the Soviet Union, accusing the Agency of cooking its books to defend Henry Kissinger’s policy of détente by underestimating Soviet military expenditures.

So the group—which included Harvard historian Richard Pipes; former arms control negotiator and ambassador-at-large under President Ronald Reagan, Paul H. Nitze; the retired director of the Defense Intelligence Agency (DIA), Daniel Graham; and a then-little-known staff member of the Arms Control and Disarmament Agency, Paul Wolfowitz—asked the CIA for access to the Agency’s files to create their own assessment of Soviet intentions and capabilities. In 1976 they received that access from then-CIA Director George H.W. Bush. That fall the group—which came to be known as Team B—produced an intelligence assessment for the president, contending that the Soviet Union’s military expenditures would not be curtailed by concerns over their potential impact on the ussr’s economic health. That conclusion became the cornerstone of Reagan’s policy for outspending the Soviet military in order to hasten the collapse of the Soviet economy.

Fast-forward to the current day. Wolfowitz, now deputy secretary of defense, still doesn’t trust the CIA—but this time the bone of contention is Iraq. As during his tenure on Team B, Wolfowitz finds himself amid a loose network of neocons inside and outside government—this time including his boss, Defense Secretary Donald Rumsfeld; Undersecretary of State for Arms Control and International Security John R. Bolton; Chairman of the Defense Policy Board Richard Perle; and Vice President Dick Cheney’s Chief of Staff and national security adviser I. Lewis “Scooter” Libby—arguing for an aggressive foreign policy posture. So, in a repetition of history, the neocons have devoted themselves to offering an alternative to what they see as the CIA’s timid and inaccurate intelligence assessments—assessments that downplayed the possibility of Al Qaeda sleeper cells in the United States prior to September 11; failed to predict India’s nuclear tests in 1998; and underestimated the speed with which the North Koreans would be able to test a multistage missile. The difference is that this time the neocons don’t have to ask the CIA’s permission to gain access to classified intelligence, because Wolfowitz and Rumsfeld already control between 85 percent and 90 percent of the U.S. intelligence budget, including the agencies responsible for signal intercepts, satellite surveillance, and the DIA. “This is a case of going in-house because [Rumsfeld] is not happy with the intelligence he’s gotten from the CIA,” says Melvin Goodman, a professor of international security at the National War College and a former CIA analyst.

Of course, as always, the neocons were dead wrong about the Iraq intelligence and were simply gaming it to get the war they longed for.

Another of the key bits of intelligence gaming came with the aluminum tubes story, “broken” by Michael Gordon and Judy Miller. In the retrospective in 2004, we find that there was in fact ample evidence showing the tubes were inadequate for uranium centrifuges and were in fact components for small artillery rockets.

Cheney and Miller have since been inextricably linked to this huge information operation, because Miller’s article was quickly followed up by multiple appearances by Cheney talking up this “intelligence” in the drumbeat for the Iraq war.  Marcy has noted how this history follows both Miller and Cheney.

If August 24 is seen as Aluminum Tube Day, then it seems likely that April 14 will become Wuhan Cable Day. And just as the aluminum tube story was catapulted nearly simultaneously by multiple people for maximum media impact, the same is true on the attacks on WIV.

The timing of April 14 is interesting, as the Times article today notes that on the 7th, a meeting of the intelligence community came to the conclusion that the origin of the outbreak is unknown:

Richard Grenell, the acting director of national intelligence, has told his agencies to make a priority of determining the virus’s origin. His office convened a review of intelligence officials on April 7 to see whether the agencies could reach a consensus. The officials determined that at least so far, they could not.

Just one week later, it looks like Team B has its ducks in a row and we suddenly have John Roberts of Fox News noting the 2018 State Department cables and asking an incredibly specific question about supposedly infected WIV personnel while pushing the lab as a source:

And the same day, we have Josh Rogin, who formerly worked with Eli Lake, putting out his column hawking the cables, claiming that they show officials being concerned that lax security at WIV at that time created a huge risk for a release of a dangerous virus. But his only actual quote from the cable he says he saw was one that just talks about a shortage of trained personnel. He then grudgingly admits the cables were sent as a plea for help in getting more training for the lab.

I had missed until yesterday this terrific takedown of Rogin and his April 14 column by Max Blumenthal. Blumenthal notes that virologist Angela Rasmussen also finds the cable excerpt not to be a smoking gun:

Dr. Angela Rasmussen, a virologist and associate research scientist at the Center of Infection and Immunity at the Columbia University School of Public Health, pointed out that the cable “argues that it’s important to continue working on bat CoVs because of their potential as human pathogens, but doesn’t suggest that there were safety issues specifically relating to WIV’s work on bat CoVs capable of using human ACE2 as a receptor.”

Ultimately, Josh Rogin was forced to admit that there was no evidence to support his insinuations, conceding in the penultimate paragraph of the article, “We don’t know whether the novel coronavirus originated in the Wuhan lab.”

Of note also is that Blumenthal found Rasmussen calling out Rogin on Twitter. Among several exchanges between the two was Rasmussen asking for Rogin to release the entire cable and Rogin refusing.

And just because the Iraq parallels never end, Blumenthal also found the 2020 version of Curveball, a regime-change agitator posing as someone in possession of important technical information:

Instead of discussing issues surrounding WIV with scientific experts, Rogin attempted to bolster his claims by relying on the speculation of anonymous Trump administration officials and Xiao Qiang, an anti-Chinese government activist with a long history of US government funding.

Rogin referred to Xiao merely as a “research scientist,” dishonestly attempting to furnish academic credibility for the professional political dissident. In fact, Xiao has no expertise in any science and teaches classes on “digital activism,” “internet freedom,” and “blogging China.” Revealingly, Rogin completely omitted the real record of Xiao Qiang as an anti-Chinese government activist.

For over 20 years, Xiao has worked with and been funded by the National Endowment for Democracy (NED), the main arm of US government regime-change efforts in countries targeted by Washington. The NED has funded and trained right-wing opposition movements from Venezuela to Nicaragua to Hong Kong, where violent separatist elements spent much of 2019 agitating for an end to Chinese rule.

Xiao served as the executive director of the New York-based NGO Human Rights in China from 1991 to 2002. As a long-time grantee of the NED, he served as vice-chairman of the steering committee of the World Movement for Democracy, an international “network of networks” founded by the NED and “for which the NED serves as the secretariat.” Xiao is also the editor-in-chief of China Digital Times, a publication that he founded in 2003 and that is also funded by the NED.

It’s truly remarkable how these folks have been using the same playbook for nearly 50 years. But because tossing out bogus information and then firing up the echo chamber to repeat it endlessly has worked for them so many times, they’ll just keep doing it until we stop them or at least impose some real consequences once the truth comes out. I suppose we can take some solace in the fact that this time these actions are being called out in real time, but I still don’t hold out a lot of hope for Team B being prevented from inciting more violence before this is all over.

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The Costs of Letting Trump Believe His Authoritarian Buddies Instead of His Intelligence Community

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WaPo has a story confirming something that has long been implicit (based on Trump’s treatment, for a period, of COVID-19 briefings as classified). The intelligence community was tracking and briefing on the COVID-19 outbreak long before it rose to public attention.

U.S. intelligence agencies were issuing ominous, classified warnings in January and February about the global danger posed by the coronavirus while President Trump and lawmakers played down the threat and failed to take action that might have slowed the spread of the pathogen, according to U.S. officials familiar with spy agency reporting.

[snip]

Intelligence agencies “have been warning on this since January,” said a U.S. official who had access to intelligence reporting that was disseminated to members of Congress and their staffs as well as to officials in the Trump administration, and who, along with others, spoke on the condition of anonymity to describe sensitive information.

[snip]

The warnings from U.S. intelligence agencies increased in volume toward the end of January and into early February, said officials familiar with the reports. By then, a majority of the intelligence reporting included in daily briefing papers and digests from the Office of the Director of National Intelligence and the CIA was about covid-19, said officials who have read the reports.

The money line repeats one the CIA used to describe how George Bush ignored warnings about 9/11: the system was blinking red.

“Donald Trump may not have been expecting this, but a lot of other people in the government were — they just couldn’t get him to do anything about it,” this official said. “The system was blinking red.”

What’s key though (and, because of editing decisions, doesn’t get a lot of focus in the story) is one reason why Trump didn’t heed the warnings of his briefers: because he believed Xi Jingpeng more than he believed the US intelligence community.

The intelligence reports didn’t predict when the virus might land on U.S. shores or recommend particular steps that public health officials should take, issues outside the purview of the intelligence agencies. But they did track the spread of the virus in China, and later in other countries, and warned that Chinese officials appeared to be minimizing the severity of the outbreak.

[snip]

Robert Kadlec, the assistant secretary for preparedness and response — who was joined by intelligence officials, including from the CIA — told committee members that the virus posed a “serious” threat, one of those officials said.

Kadlec didn’t provide specific recommendations, but he said that to get ahead of the virus and blunt its effects, Americans would need to take actions that could disrupt their daily lives, the official said. “It was very alarming.”

Trump’s insistence on the contrary seemed to rest in his relationship with China’s President Xi Jingping, whom Trump believed was providing him with reliable information about how the virus was spreading in China, despite reports from intelligence agencies that Chinese officials were not being candid about the true scale of the crisis.

We all pay for Robert Kadlec to make sure policymakers get warnings about such things. And yet, Trump refused to believe those warnings because someone he trusted more — Xi — told him differently.

Trump has been permitted to believe his authoritarian buddies over the intelligence community on all manner of things. It derives from two things: first, his own innate fondness for authoritarians. But also, his need to believe Vladimir Putin’s assurances that Russia didn’t help him get elected.

The enabling of Trump’s fondness for dictators will end up being very costly for the United States.

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The Republican Party Is No Longer the Party of Personal Responsibility

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In a cynical speech that, if we’re lucky, will be an effort to deescalate militarily by imposing more sanctions on Iran (which is not a good thing but far better than the alternative), Trump just pre-blamed Barack Obama for the failures most experts predict and have correctly predicted will come from Trump’s Iran policy. He suggests, falsely, that the current escalation is the result of Obama’s peace deal, rather than the demonstrable result of his suspension of it.

Iran’s hostilities substantially increased after the foolish Iran nuclear deal was signed in 2013, and they were given $150 billion, not to mention $1.8 billion in cash. Instead of saying “thank you” to the United States, they chanted “death to America.” In fact, they chanted “death to America” the day the agreement was signed.

Then, Iran went on a terror spree, funded by the money from the deal, and created hell in Yemen, Syria, Lebanon, Afghanistan, and Iraq. The missiles fired last night at us and our allies were paid for with the funds made available by the last administration. The regime also greatly tightened the reins on their own country, even recently killing 1,500 people at the many protests that are taking place all throughout Iran.

The very defective JCPOA expires shortly anyway, and gives Iran a clear and quick path to nuclear breakout. Iran must abandon its nuclear ambitions and end its support for terrorism. The time has come for the United Kingdom, Germany, France, Russia, and China to recognize this reality.

I’ll leave it to others to unpack how dishonest this claim, both with respect to what JCPOA did and what has led to the increase in tension since Trump reversed our commitment to it.

But it exists in a larger context in which the Trump’s supporters are both refusing to take responsibility for their own actions, including but not limited to their support for Trump, but also doing so by pre-blaming Democrats.

This has been going on for the entirety of the Trump Administration (indeed, arguably it has been going on for at least 15 years). But with respect to Iran, it has consisted of:

  • Blaming Obama’s successful peace deal for the effects of Trump’s own rejection of it
  • Claiming Trump couldn’t brief Democrats on the Soleimani assassination because otherwise they would leak
  • Suggesting that Democrats’ past impeachment of Trump will have a future effect on his ability to respond to the crisis he created with the assassination

Let me be clear: I don’t think Trump assassinated Soleimani to distract from impeachment. I think he assassinated Soleimani because he’s a narcissist who responds to slights by lashing out, and his top advisors Mark Esper and Mike Pompeo are committed to Raytheon, Rapture, and a dangerously escalatory Iran policy, and so in this case did not rein in the natural result of arming someone with Trump’s narcissism, which is to use force where diplomacy would be more effective.

But here we are, with a dead Iranian general and fewer allies in the Middle East and few adults running policy, which may well be a recipe for disastrous things to come.

Trump (and his supporters’) refusal to take responsibility for their own actions is particularly toxic in this context because his policies and incompetent implementation of them are highly likely to fail, and the only way Trump can sustain support while presiding over obvious and foreseeable failures is to blame some other entity, which in this case includes Democrats and Iranians. And the only way for him to continue failing policies even while it’s clear they are failing is to pretend they’re not the cause of the failure.

Trump’s excuses for not briefing the Gang of Eight are particularly worrisome. It’s bad enough he didn’t do so, both for Constitutional and practical reasons. Even Richard Burr or Mitch McConnell might have advised Trump to take a more moderate approach. And had Trump briefed Nancy Pelosi, Adam Schiff, or Chuck Schumer, any one of them might have said something to make it clear that if he did this and it blew up in his face, they would make it clear to the public that he had made the decision against their advice. Our system of briefing the Gang of Eight on covert operations is a terrible way to vet military and intelligence operations (not least because you don’t get in those positions unless you’re a hawk). But in this instance, it might have made Trump worry about being shamed if he ignored the advice. It also would have offered Trump the ability — one George Bush used aggressively to survive his scandalous embrace of torture and illegal wiretapping — to claim there was bipartisan awareness of the actions, which might make it more likely to craft a bipartisan response if things do start to go south.

But Trump doesn’t like the humiliation of hearing advice he doesn’t like, and so he didn’t brief  the Gang of Eight beforehand.

He owns this decision, and all its consequences, because he chose to make the decision without following the norm that would allow him to share the blame.

But that raises the stakes for him to find scapegoats. It’s a feedback loop, where his refusal to listen to competent advice increases the likelihood of stupid decision and his defensiveness about admitting all that, thereby raising the stakes on having scapegoats still further.

And that, in turn, raises the aggressiveness he needs to direct at his scapegoats. Democrats (and Iranians and NATO) must not be wrong. They must be disloyal or traitors or Jew-ridden socialist countries or terrorists. Indeed, that’s likely one of the reasons why Trump so readily adopts inflammatory slurs with no basis in fact: because he has to dehumanize his scapegoats, to make sure no one thinks too much about what function that scapegoating plays.

It’s all a recipe for increasing violence.

And at the core, on the Soleimani assassination, the case that Trump is responsible is not just obvious — best embodied by his refusal to brief the Gang of Eight even while telegraphing his attack to his cronies at Mar-a-Lago — but a root cause of why he wants to build his scapegoats in from the start.

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A Few Thoughts On Carter Page Warrants, Franks v. Delaware and Michael Horowitz

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Marcy Wheeler did a giant post on the Page warrants and the Horowitz report, one she just updated significantly this morning. I did a comment on there, but since this is pretty much my hobby horse from long before the Horowitz IG Report was released, I decided it needed at least a short standalone post.

This concerns the Franks v. Delaware standards for warrant affidavit review, how it should apply to Carter Page’s series of four warrants signed by four different experienced and sober judges, and the complete ignoring of said standards by the typical Michael Horowitz’s attempt to validate his own work and time.

First, there are two types of identifiable errors in warrant affidavits for Franks v. Delaware challenge purposes. The first is what I call the error of commission, i.e. affirmatively inserting materially false information, and the second is error of omission, i.e. leaving out materially critical information. Courts are generally much more loathe to grant relief on omission claims than commission claims. This is important as to the caterwauling about Page having talked to the CIA (long ago as Marcy notes) claim. Sorry, that is so old, stale and meaningless as to be completely irrelevant for these purposes. Nobody would ever get dinged for that nonsense. It is not like the IC was running Page as a asset, this is just nonsense. But that is what uninformed howlers like Page, Nunes and Chuck Ross roll with.

Secondly, when Marcy says “Franks challenges require the defendant to prove that false statements in a warrant application are false, were knowing, intentional, or reckless false statements, and were necessary to the finding of probable cause”, that is true. But it has to be established that the actual affiant knew that as opposed to some diffuse other government agent or person may have known. And the actual affiant gets every benefit in the world of “good faith” in this regard. Always. Darn near impossible to overcome. So, that isn’t going to work either for the reasons Marcy lays out.

Third. It is infuriating that Horowitz did not address one lick of any of this. In 435 pages of his “report” Horowitz could not find just a few to address the actual standards he should have been reviewing under. Not once. Couldn’t even be bothered to mention it in passing. And it has not entered many, if at all, other post hoc discussions, either, short of at this blog. That is just laziness.

Lastly, for now, I would suggest the law review article Marcy linked to above, specifically pps. 443-449. It is not the most complex dissertation of Franks v. Delaware law and review standards, but it is one easily understandable by the lay person, especially if you read the footnotes carefully too.

I have been successful on a couple of Franks attacks in days gone by….out of a LOT attempted. Very few defense attorneys can claim even that. I cannot possibly tell you how difficult it is. But I can, without any reservation, tell you I think there is about little to no chance that the Page affidavits would not stand up with sufficient probable cause if subjected to such a review. Since Page would have never gotten there, it was derelict of Horowitz to have not done so.

It is not that Horowitz did not identify some error, whether of commission or omission, in the Page applications, he did. But he very much overplayed how significant they are under extant warrant law. Now, the argument that FBI, and other law enforcement entities, ought to tighten up their policies for submission of affidavits, whether under FISA or Title III, is well taken. They should. All defendants and surveillance targets deserve that. But under the applicable law at the time, the thought that the Page affidavits would not stand up under the mere ex-parte probable cause standard is ridiculous. Of course they would have.

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Horowitz

Crossfire Hurricane Glossary

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Even before it went live yesterday, I was looking through Marcy’s incredibly awesome timeline on Crossfire Hurricane. It is a stunningly important and good thing, not only for those here, but those everywhere. I read things day and night, and have seen many timelines on this subject, but none that approach that which Marcy has produced. That said, if even I have to do double takes on what some of the names and acronyms are, I thought a guide was in order.

So, I thought an enduring glossary would help not even now, but going forward. What follows will be what appears appropriate now, and this post may be supplemented lated as necessary. I hope it helps. Maybe at some point I’ll come back an make it alphabetical, but for now I am just going from front to back in order of appearance.

Some are patently obvious and need no explanation, e.g. “CIA” for instance. As to the rest though, away we go:

ASAC: Assistant Agent In Charge, typically of an FBI Field Office.

Zainab Ahmad: Is a seriously kick ass former member of DOJ. Ahmad was a prosecutor with the DOJ who long specialized in investigating and prosecuting terrorism. She served as an AUSA in the Eastern District of New York until 2017, successfully prosecuting several high-profile terrorism cases. In 2017, she was reassigned to the Special Counsel for the United States Department of Justice team. After Mueller closed up shop, Zainab landed as a white collar and cyber security specialist at the NY office of Gibson Dunn.

Evgeny Burykov: A convicted Russian spy. He was arrested on January 26, 2015, charged with, and pleading guilty to, spying on the United States for the Russian Foreign Intelligence Service (SVR). Buryakov was a New York-based Deputy Representative of Vnesheconombank, Russia’s state-owned national development bank.

CHS-3: In addition to Steele (CHS-1) and Halper (CHS-2) there was another FBI informant who spoken on a number of occasions with George Papadopoulos. The person’s identity is unknown. Papadopoulos told him a version of the Joseph Mifsud in fall 2016.

Anne Conway: Conway is a GHW Bush nominated judge to the Middle District of Florida, and who serves on the FISC, since being do designated by John Roberts in 2016. Judge Conway approved a 2017 FISA Court warrant for Carter Page, a former adviser to the 2016 Trump Campaign.

Raymond Dearie: Is a well respected Senior United States District Court Judge from EDNY originally nominated by Reagan, and served on FISX between July 2012 and July 2019, after appointment by Chief Justice John Roberts.

Oleg Deripaska (Oligarch 1): Paul Manafort’s one-time paymaster, and also the client of a lawyer employing Christopher Steele in 2016. In that role, Steele repeatedly offered to broker a meeting at which Deripaska could provide derogatory information on Manafort. FBI belatedly considered whether Deripaska was a source of disinformation for the dossier.

Alexander Downer: Former Australian High Commissioner (ambassador) to the UK (2014-18), former leader of the Australian Liberal Party (1994-95), and former Australian Minister for Foreign Affairs (1996-2007). Definitely not a coffee boy, but met with one over a few drinks in London.

For bmaz, I note that he is a fan of V8 motor racing and has a CMAS racing license. (h/t EH)

Stu Evans: Stuart Evans, deputy assistant attorney general of DOJ’s National Security Division. He’s the person who insisted on adding a footnote alerting the FISC of Steele’s potential bias.

FIFA: The international governing body of soccer. A body Chris Steele gave work and information on to not just US authorities but worldwide ones too.

Michael Gaeta (Handling Agent 1): An FBI agent, previously an attache in Rome and one time handler of Christopher Steele. A specialist in Eastern European organized crime including in the Republic of Georgia, Russia, and Ukraine.

Taushina Gauhar: Is a (former) Deputy Assistant Attorney General (DAAG) in the Department of Justice National Security Division (NSD) and FISA lawyer specialist.

JD Gordan: Gordan is an American communications and foreign policy advisor, who served as a Pentagon spokesman during the Bush Administration and later a National Security Advisor to Donald Trump. He is also a crackpot gadabout on forums such as One America News Network, Fox News, Sky News, The Daily Caller, The Hill, and The Washington Times. He’s the guy who ensured that the Republican platform did not incorporate lethal aid to Ukraine.

Stefan Halper (Source 2): Ooof, this could go on even longer, but per Wiki, Halper is an American foreign policy spy and Senior Fellow at the University of Cambridge where he is a Life Fellow at Magdalene College. He served as a White House official in the Nixon, Ford, and Reagan administrations, and was reportedly in charge of the spying operation by the 1980 Ronald Reagan presidential campaign that became known as “Debategate”. Through his decades of work for the CIA, Halper has had extensive ties to the Bush family. Through his work with Sir Richard Dearlove he also has ties to the British Secret Intelligence Service MI6. For purposes here, Halper acted as an FBI informant for its investigation into Russian interference in the 2016 United States elections.

Kathleen Kavalec: Former Deputy Assistant Secretary of State who met with Chris Steele in October 2016.

Mary McCord: McCord was the Acting Assistant Attorney General for National Security at the U.S. Department of Justice from 2016 to 2017 and Principal Deputy Assistant Attorney General for the National Security Division from 2014 to 2016. She now teaches at Georgetown and contributes at Lawfare.

Sergei Millian (Person 1): A Belarus born businessman knee deep in everything Russia and a putative source for Chris Steele. He was also the subject of a counterintelligence investigation during 2016-17. Much still not necessarily clear about Millian.

NYFO: New York Field Office of the FBI.

OGC: Office Of General Counsel at the Department of Justice.

OI: The Office of Intelligence at DOJ. They’re in charge of writing FISA applications.

Bruce and Nellie Ohr: Bruce Ohr is a United States Department of Justice official. A former Associate Deputy Attorney General and former director of the Organized Crime Drug Enforcement Task Force (OCDETF). He is an expert on transnational organized crime and has spent most of his career overseeing gang and racketeering-related prosecutions, including Russian organized crime. Nellie is Bruce’s wife, and a longtime expert on all things Russian. She worked at one point for Fusion GPS as a contractor between October 2015 and September 2016.

Victor Podobnyy: An Russian SVR (foreign intelligence) officer worked under the cover as a banker who was recruiting Carter Page in 2013.

SSA: Supervisory Special Agent.

Scott Schools: Scott Schools was the “highest-ranking career civil servant at the United States Department of Justice”, serving as Associate Deputy Attorney General. For those who have been around long enough, he was, for a while, the “new” David Margolis. Schools, a putatively decent chap, is gone now, having been replaces by a Jeff Sessions designated mope named Bradley Weinsheimer.

Glenn Simpson: Former journalist for the Wall Street Journal and co-founder of Fusion GPS.

Paul Singer: An American billionaire hedge fund manager, activist, investor, vulture capitalist, and philanthropist. A hard line Republican promoter and shill, but also a longtime supporter of LGBTQ rights.

Bruce Swartz: Deputy Assistant Attorney General for International Affairs. Key to the story because of a purported effort by Kurt Volker to get Swartz to officially ask Ukraine to investigate the Bidens. He would have been in the loop in any normal requests between the US and Ukraine. Still a lot of questions open as to Swartz.

UCE: An FBI employee working undercover. A woman working under the pseudonym Azra Turk accompanied Stefan Halper on his interviews with George Papadopoulos.

Sally Yates: Former US Attorney for Northern District of Georgia, Deputy Attorney General, and Acting AG.

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Alexander Vindman Proves That Working Within System Works Even While Derek Harvey Works To Destroy It

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Jim here.

Last night, two very remarkable stories were published that, taken together, illustrate an extreme chasm in our defense community that receives far too little attention. To set the stage, it is necessary to go back to the early 2000’s for a development that has mostly been erased from our collective memory but has had an indelible and particularly harmful and lingering effect. As the George W. Bush Administration executed its pivot from the war in Afghanistan to the invasion of Iraq, it became necessary for the Bush folks to craft a set of intelligence “facts” supporting and then sustaining the action in Iraq. A primary tool used in this effort was create a separate intelligence apparatus, since the existing intelligence agencies did not produce analyses supporting the invasion.

A huge impact of this illegal war was that it devastated morale within the military at all ranks. Sadly, many of our highest ranking–and most ethical–officers chose retirement rather than to serve while an illegal war was being waged. With the Defense Secretary, Vice President and President clearly leading the charge for the war, it seems obvious that these officers realized that their analyses showing that the invasion was not justified were falling on deaf ears and that they would never be able to inject a dose of reality into the artificial reality on which the whole war effort rested. The result, as they had to be able to foresee, was that the Iraqi people and our enlisted forces suffered unnecessary and devastating losses, with impact continuing into the present even after “end” of US action in Iraq.

By 2006, some of these retired officers even began to speak out, calling for the resignation of Donald Rumsfeld. In a normal world, where the system of checks and balances within the military and with legislative and executive oversight functions operating properly, these officers would not have needed to retire, but instead would have been key factors in rejecting the invasion as unnecessary and based only on a set of political objectives rather than an actual need for military action to stave off harm to the region. As a trained geneticist, my feeling was that this event served as a sort of genetic selection within the military, where the population of those remaining and advancing through the ranks was enriched for those who bought into distorted politics of the invasion and a willingness to shape “facts” around a desired outcome. Our only hope, I felt, was that at least some would desire to stay within the system anyway and continue to work for the ideals of their oath to the Constitution administered when they joined the military.

So, fast forward to last night. The New York Times article on Alexander Vindman illustrates that Vindman is indeed just that sort of person I hoped would continue to stay and work within the system. His work as the senior Ukraine analyst on the National Security Council put him into position to see the illegal plan that the Trump Administration was carrying out force Ukrainian President Volodymyr Zelensky to investigate Hunter Biden in return for the release of essential Ukraine aid that Trump had frozen. Vindman’s response was by the book: document the crime and then report it up the chain of command:

“I did not think it was proper to demand that a foreign government investigate a U.S. citizen, and I was worried about the implications for the U.S. government’s support of Ukraine,” Colonel Vindman said in his statement. “I realized that if Ukraine pursued an investigation into the Bidens and Burisma it would likely be interpreted as a partisan play which would undoubtedly result in Ukraine losing the bipartisan support it has thus far maintained.”

/snip/

“This would all undermine U.S. national security,” Colonel Vindman added, referring to Mr. Trump’s comments in the call.

 

Vindman then went on to report his concerns:

“I did convey certain concerns internally to national security officials in accordance with my decades of experience and training, sense of duty, and obligation to operate within the chain of command,” he plans to say.

He will testify that he watched with alarm as “outside influencers” began pushing a “false narrative” about Ukraine that was counter to the consensus view of American national security officials, and harmful to United States interests. According to documents reviewed by The Times on the eve of his congressional testimony, Colonel Vindman was concerned as he discovered that Rudolph W. Giuliani, the president’s personal lawyer, was leading an effort to prod Kiev to investigate Mr. Biden’s son, and to discredit efforts to investigate Mr. Trump’s former campaign chairman, Paul Manafort, and his business dealings in Ukraine.

Vindman made not one, but two reports to the top lawyer in the NSC, John Eisenberg. Were it not for the whistleblower report and the impeachment inquiry stemming from it, the sad reality is that Vindman’s heroic actions might have ended with his reports to Eisenberg, as Eisenberg has been shown to have been working to quash the efforts to expose Trump’s illegal actions. But now that the House of Representatives has finally rediscovered the real duty of oversight (we already miss you, Elijah Cummings!), Vindman today has the opportunity provide a deposition to the three committees carrying out the impeachment investigation.  Vindman’s testimony seems likely to seal Trump’s fate, as it is nearly impossible to see how at least one article of impeachment won’t arise from the facts Vindman lays out. Whether Senate Republicans will also find their duty to truth rather than manufactured reality, of course, seems less likely, but at the very least it will be valuable to watch them squirm when the decision is laid squarely in their laps.

At almost the same time the Vindman article came out in the Times, Daily Beast detailed how a retired military officer, Derek Harvey, is working outside proper channels to disclose the identity of the whistleblower, endangering this individual and making future whistleblowers less likely to expose corruption. Harvey seems to be a poster child for exactly the type of officer who flourished after the mass exodus of those with a conscience. Here is how Daily Beast described his background:

Derek Harvey’s career has been extraordinary. As a Defense Intelligence Agency analyst, he played an important role in the 2007-8 troop surge in Iraq. David Petraeus kept Harvey aboard for an intelligence billet at U.S. Central Command. Harvey aligned with another member of the counterinsurgency coterie, DIA Director Mike Flynn, and followed Flynn onto Trump’s White NSC. From there, Harvey became a crucial aide to Nunes, a pivotal Flynn and Trump ally. There is no reasonable definition of Deep State that excludes Derek Harvey from elite membership.

So Harvey accelerated his military career, and career after retiring but staying within military intelligence, by joining forces with the Petraeus effort to craft “facts” around the Iraq surge–a cataclysmic failure that Petraeus always claimed as a stunning success–and then eventually joined Mike Flynn both in DIA and the NSC. One stop in Harvey’s career not on that list is detailed in Bob Woodward’s “Obama’s Wars” [quoted here]:

Based on what Harvey reported to General Petraeus, according to Woodward’s book, Petraeus “decided to create his own intelligence agency inside CentCom” (pg. 78, “Obama’s War”) to offset the shortcomings of the DNI, CIA, NSA, DIA and other US intelligence gathering agencies in gathering information about the Afghanistan-Pakistan region. He asked Harvey to draft plans for an agency modeled on Harvey’s approach. Reports Woodward, “Soon, Harvey was appointed director of the new Afghanistan-Pakistan Center of Excellence based at CentCom headquarters in Tampa, Florida.”

According to Woodward, Petraeus moved over $100 million into this project with Congress unaware of that move for several months. Harvey’s analysis that he gave to Petraeus: “the war could be won, but the U.S. government would have to make monumental long-term commitments for years that might be unpalatable with voters” (p. 79).

So Harvey clearly is essentially a ratfucker for hire, being willing to craft an intelligence set of “facts” to serve whatever master is paying him to do so. Although Woodward paints a rather admiring picture of Harvey’s diligence in approaching his intelligence gathering, comparing it to that of a homicide detective, historical context tells us that Petraeus simply didn’t like what he was getting from the existing agencies and needed his own “intelligence” to continue on his chosen path.

But, as you see above, Harvey is now working for Devin Nunes (R-Cow) and that is an especially devious team. From Daily Beast:

Derek Harvey, who works for Nunes, the ranking Republican on the House intelligence committee, has provided notes for House Republicans identifying the whistleblower’s name ahead of the high-profile depositions of Trump administration appointees and civil servants in the impeachment inquiry. The purpose of the notes, one source said, is to get the whistleblower’s name into the record of the proceedings, which committee chairman Adam Schiff has pledged to eventually release. In other words: it’s an attempt to out the anonymous official who helped trigger the impeachment inquiry.

Mark Zaid explained to Daily Beast the horrible implications of what Harvey is doing:

“Exposing the identity of the whistleblower and attacking our client would do nothing to undercut the validity of the complaint’s allegations,” said Mark Zaid, one of the whistleblower’s attorneys. “What it would do, however, is put that individual and their family at risk of harm. Perhaps more important, it would deter future whistleblowers from coming forward in subsequent administrations, Democratic or Republican.”

It’s hard to imagine two more polar opposites than Alexander Vindman and Derek Harvey. Vindman is a patriot committed to the security of the US and working within the system while Harvey is willing to sell out US security to whatever wingnut is willing to pay him and to bypass every safeguard built into the system.

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Was The Trump Phone Call With Zelensky Paused For Discussion On US Side?

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It’s Jim here.

Much has been made about the apparent discrepancy between the length of the rough transcript of the Donald Trump-Volodymyr Zelensky telephone call on July 25. The best analysis I’ve seen on this topic is in today’s Washington Post, where the number of words in a transcript and the reported duration of the corresponding call were compared for this call and for another conversation where interpreters were needed on both ends of the call:

The memorandum of Trump’s call with Zelensky appears remarkably different in speed and content from the full transcripts of calls between President Trump and foreign leaders The Washington Post obtained in 2017.

The transcript of a 24-minute call with Australian Prime Minister Malcolm Turnbull, in which both the participants spoke English, included roughly 3,200 words, or about 133 words per minute. A 53-minute call with then-Mexican President Enrique Peña Nieto, in which both Trump and the Mexican president spoke through interpreters, included roughly 5,500 words, or about 102 words per minute.

The White House summary of Trump’s 30-minute call with Zelensky — which included interpreters because Zelensky spoke Ukrainian while Trump spoke English — includes fewer than 2,000 words, or roughly 65 words per minute. That suggests that the rough transcript of the Zelensky call includes about half the number of words that would be expected if the call had proceeded at the same or similar pace as the previous calls.

The article also notes the presence of the ellipses and does a good job of tying each instance of the ellipses to the contexts where they appear. The first two are in Trump’s discussion of Crowdstrike and the third relates directly to Joe Biden.

The article also does a great job of debunking one White House theory put forward about the ellipses, claiming that they merely indicate that Trump’s voice trailed off. However, the article documents that past practice was to insert “[inaudible]” to mark such trailing off, so this doesn’t match what was done in the past.

Of course, the simplest explanation that many are going with here is that Trump may have said something so incriminating and outrageous that the White House simply couldn’t allow it to get out, and so they edited it out. But I began to wonder if there might be something else that happened here, in addition to eliding incriminating evidence.

Is it possible that intelligence agents monitoring the call heard something so improper that they put the call on the electronic equivalent of “hold” and communicated to Trump directly that he had gone over the line? Coupling that thought with the knowledge from the whistleblower complaint that there were other instances where Trump transcripts were hidden on the code-word server, I wondered if there had ever been a press report of a Trump phone call being briefly interrupted. Early in my searching, I hit on an article that fits into this idea incredibly well. It has the bonus that it applies to the first known phone call between Trump and Vladimir Putin. What I found was a Reuters article dated February 9, 2017:

In his first call as president with Russian leader Vladimir Putin, Donald Trump denounced a treaty that caps U.S. and Russian deployment of nuclear warheads as a bad deal for the United States, according to two U.S. officials and one former U.S. official with knowledge of the call.

When Putin raised the possibility of extending the 2010 treaty, known as New START, Trump paused to ask his aides in an aside what the treaty was, these sources said.

The article goes on to deliver what now seems to be an incredibly important tidbit in what would have been seen at the time as a meaningless aside from Sean Spicer:

The White House declined to comment on the details of the call. White House spokesman Sean Spicer said Trump knew what the New START treaty is but had turned to his aides for an opinion during the call with Putin. He said the notes from the call would not have conveyed that.

So, Spicer informs us that at least this once, a call was put on hold for discussions on the US side. More importantly, he states that such discussion would not have appeared in the notes from the call.

Is that what happened on July 25? Was the Trump-Zelensky call put on hold for the US side to speak privately with Trump? If so, it seems that such a discussion could account for at least part of length deficit for the rough transcript. It would also be something worthy of intense followup. Was the discussion primarily with political staff, as claimed by Spicer for the first Putin call, or were members of the intelligence community warning against where Trump had taken the conversation?

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ODNI GC Klitenic: President Has Sole Authority Over Security Clearances, But Is Not Member Of Intelligence Community

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Jim here again.

I want to go all the way back to September 13 in the Ukraine whistleblower saga. Recall that at this time, we strongly suspected but did not yet know that the complaint centered on President Trump. Congress was clamoring for the report from the Inspector General of the Intelligence Community to be released and for testimony from ICIG Michael Atkinson and/or Acting Director of National Intelligence Joseph Maguire. In response to those Congressional demands, the General Counsel of the Office of the Director of National Intelligence, Jason Klitenic, issued a letter in which he provided the rationale for his decision that Atkinson was not required to pass the complaint along to Congress even though Atkinson had come to the conclusion that the report was credible and represented an urgent concern that merited sharing with Congress. Because Trump eventually relented on the issue of the report and released it, the narrative has moved quickly beyond Klitenic’s actions. But let’s look at his primary justification for ruling that this report should not be disclosed:

Yesterday, Marcy went into the details of what transpired within DOJ in the Office of Legal Counsel during these deliberations, but here I want to concentrate just on how Klitenic relied on OLC’s interpretation to come to the conclusion that one of the two most important determining factors in stating that Atkinson could not forward the complaint to Congress was that it applied to “someone outside the Intelligence Community”. Knowing as we do now that the complaint did indeed focus on Trump’s words and actions, Klitenic is stating clearly that the President is outside the Intelligence Community. This is really rich coming from Klitenic, because just about two weeks before the Trump-Zelensky phone call, Klitenic had helped to shut down the Congressional investigation of the scandal surrounding the issuance of security clearances within the Trump White House.

I’ve not yet found Klitenic’s letter of July 10, 2019 that was sent in response to a letter from Senators Warner, Feinstein, Menendez and Reed on March 8, 2019 demanding that then-Director of National Intelligence Dan Coats and Atkinson “review compliance by the Executive Office of the President (EOP) with policies and procedures governing security clearances and access to secure compartmented information (SCI)”. Note that Klitenic’s response is well past the 60 day window the Senators granted for a response. Here is Atkinson on July 22, where he cites Klitenic’s letter and interpretation:

So, on July 10, 2019, Klitenic ruled that the President alone has authority of who is granted a security clearance and even who gets access to SCI. Recall that one of the central figures of this security clearance scandal was none other that Jared Kushner. His clearance was originally denied and Trump overruled the denial. One whistleblower on the security clearances, Tricia Newbold,was so incensed over Trump’s actions that she went public, as noted in this April 1 article in the Washington Post.

Lucky for Kushner that he still has SCI access since it appears that records of Trump conversation’s with Jared’s BFF Mohammad bin Salman have been stashed at that level of classification. It is even more lucky for Kushner that although his father-in-law is not a member of the Intelligence Community, many of his most important conversations live well-buried within it.

Finally, many of you know that I am a diehard fan of college baseball. So of course when I looked at Klitenic’s biography, I couldn’t help noticing that he claims to have been an All-American baseball pitcher in college. That claim does indeed check out, although in true trash talk fashion I would add the asterisk that Johns Hopkins competes in Division III in baseball. One can’t help wondering at this point when Chief Justice John Roberts, who at his confirmation stated his job is to “call balls and strikes” will be ruling on pitches made by Klitenic.

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