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The Sekulow Questions, Part Six: Trump Exacerbates His Woes

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In this series, it feels like time is marked by big Russian meetings and key firings.

I’m talking, of course, about my efforts to use the Mueller questions as imagined by Jay Sekulow to map out what the structure of the investigation (at least as it pertains to Trump personally) might be. Thus far, I’ve shown:

  • Russians, led by the Aras Agalarov and his son, cultivated Trump for years by dangling two things: real estate deals and close ties with Vladimir Putin.
  • During the election, the Russians and Trump appear to have danced towards a quid pro quo agreement, with the Russians offering dirt on Hillary Clinton in exchange for a commitment to sanctions relief, with some policy considerations thrown in.
  • During the transition period, Trump’s team took a series of actions that moved towards consummating the deal they had made with Russia, both in terms of policy concessions, particularly sanctions relief, and funding from Russian sources that could only be tapped if sanctions were lifted. The Trump team took measures to keep those actions secret.
  • Starting in January 2017, Trump came to learn that FBI was investigating Mike Flynn. His real reasons for firing Flynn remain unreported, but it appears he had some concerns that the investigation into Flynn would expose him personally to investigation.
  • After a failed attempt to quash the investigation into his Administration by firing Flynn, Trump grew increasingly angry that Jim Comey wouldn’t provide a quick exoneration without conducting an investigation first, leading to his firing.

May 10, 2017: What did you mean when you told Russian diplomats on May 10, 2017, that firing Mr. Comey had taken the pressure off?

Trump fired Comey just in time to report to Russian Ambassador Sergey Kislyak and Foreign Minister Sergey Lavrov in a meeting the next day that doing took the pressure off he felt because of Russia.

“I just fired the head of the F.B.I. He was crazy, a real nut job. I faced great pressure because of Russia. That’s taken off.” Remarkably, he also felt the need to reassure the Russians that, “I’m not under investigation.”

The reports that Trump’s lawyers need to have clearance because of the inclusion of this meeting in the list of questions suggests Mueller wants to learn more about the meeting beyond the public reports. That may include Trump’s sharing of classified information provided by the Israelis.

May 11, 2017: What did you mean in your interview with Lester Holt about Mr. Comey and Russia?

The day after meeting with the Russians, he told Lester Holt he was going to fire Comey regardless of what Rod Rosenstein recommended. [These are excerpts and a little rough; here’s a partial transcript that leaves out a lot of the Russian comments]

He’s a showboat, he’s a grand-stander, the FBI has been in turmoil, you know that. I know that. Everybody knows that. You take a look at the FBI a year ago, it was in virtual turmoil. Less than a year ago. It hasn’t recovered from that.

[in response to a question about Rosenstein’s recommendation] What I did was I was going to fire Comey. My decision. I was going to fire Comey. There’s no good time to do it, by the way. I was going to fire regardless of recommendation. [Rosenstein] made a recommendation, he’s highly respected. Very good guy, very smart guy. The Democrats like him. The Republicans like him. But regardless of recommendation I was going to fire Comey. Knowing there was no good time to do it.

And in fact when I decided to just do it, I said to myself, I said you know, this Russia thing with Trump and Russia is a made-up story, it’s an excuse by the Democrats for having lost an election that they should have won. And the reason they should have won it is the electoral college is almost impossible for a Republican to win. Very hard. Because you start off at such a disadvantage. So everybody was thinking, they should have won the election. This was an excuse for having lost an election.

I just want somebody that’s competent. I’m a big fan of the FBI. I love the people of the FBI.

As far as I’m concerned, I want that [investigation] to be absolutely done properly. When I did this now, I said I’ll probably, maybe confuse that. Maybe I’ll expand that, you know, lengthen the time because it should be over with, in my opinion, should have been over with a long time ago. ‘Cause all it is, is an excuse but I said to myself, I might even lengthen out the investigation, but I have to do the right thing for the American people.

[in response to question about why he put he was not under investigation in his termination letter] Because he told me that, I mean he told me that. I’ve heard that from others. I had a dinner him, he wanted to have dinner because he wanted to stay on, we had a very nice dinner at the White House very early on. [He asked to have dinner?] A dinner was arranged. I think he asked for the dinner. And he wanted to stay on as the FBI head. And I said, I’ll consider, we’ll see what happens. We had a very nice dinner. And at that time he told me you’re not under investigation. I knew anyway. First of all, when you’re under investigation, you’re giving all sorts of documents and everything. I knew I wasn’t under — and I heard it was stated at the committee, at some committee level, number one. Then during the phone call he said it, then during another phone call he said it. He said it at dinner, and then he said it twice during phone calls.

In one case I called him, in one case he called me.

I actually asked him, yes. I said, if it’s possible, would you let me know, am I under investigation? He said you are not under investigation. All I can tell you is that I know that I’m not under investigation. Personally. I’m not talking about campaigns, I’m not talking about anything else. I’m not under investigation.

[did you ask him to drop the investigation] No. Never. I want the investigation speeded up. Why would we do that? Iw ant to find out if there was a problem with an election having to do with Russia, or anyone else, any other country, I want it to be so strong and so good.

I want somebody that’s going to do a great job.

I think that looking into me and the campaign, I have nothing to do, his was set up by the Democrats. There’s no collusion between me and my campaign and the Russians. The other things is the Russians did not affect the vote.

If Russia hacked, If Russia had to anything to do with our election, I want to know about it. If Russia or anybody elseis trying to interfere with our elections I want to make sure that will never ever happen

[wiretapping] I was surprised [Comey said no spying] but I wasn’t angry. There’s a big thing going on right now, spying, to me that’s the big story.

I want a great FBI Director. I expect that [they will continue investigation].

[Flynn’s access to secrets] My White House Counsel it did not sound like an emergency. She didn’t make it sound that way either in the hearings the other day. It didn’t sound like it had to be done immediately. This man has served for many years. He’s a general. In my opinion a very good person. It would be very unfair to hear from someone we don’t even know to immediately run out and fire a general. We ultimately fired, but we fired for a different reason. Everything plays into it. We fired him because he said something to the Vice President that wasn’t true. He had clearance from the Obama Administration. I think it’s a very unfair thing that the media doesn’t talk about that.

I just sent a letter from one of the most prestigious law firms in the country that I have nothing to do with Russia, I have no investments in Russia, I don’t have property in Russia. I’m in total compliance in every way.

I had the Miss Universe Pageant in Moscow a long time ago. I have a certified letter. I’m not just saying that. I assume he’s gonna give the letter out. No loans, no nothing.

I never thought about it [optics of Lavrov meeting]. What difference does it make.

When I spoke with Putin he asked me whether I’d see Lavrov. I think we had a great discussion having to do with Syria, having to do with the Ukraine. Maybe that discussion will lead to peace.

Ultimately, Trump said several things here (aside from putting into the public record the meetings with Comey, though he got details that can almost certainly be proved wrong wrong). He differentiated between an investigation into himself personally and others, denied asking to halt the investigation into Flynn, provided his bogus self-exoneration claim of not having business ties with Russians. He also reiterated the claim he had been spied on.

May 12, 2017: What was the purpose of your May 12, 2017, tweet?

By this point, Trump and Comey were in a war of credibility. And Trump suggested that he might have tapes of his meetings with Comey.

The White House answers about whether there were tapes have dodged some, so it’s possible.

May 17, 2017: What did you think and what did you do in reaction to the news of the appointment of the special counsel?

In the wake of reporting that Comey had documented a request from Trump to halt the investigation into Flynn, on May 17, Rod Rosenstein appointed Robert Mueller to investigate any links between the Russian government and individuals associated with Trump’s campaign and “any matters that arose or may arise directly from the investigation.” The latter phrase made it clear that by firing Comey, Trump had put himself under investigation for obstructing the investigation in chief.

In the middle of a meeting with Sessions, Don McGahn, Mike Pence, and several others on replacing Comey, Rosenstein called McGahn and told him he had appointed Mueller. Trump took it out on Sessions, calling him an idiot and telling him he should resign. Sessions left and sent a resignation letter, but Pence, Steve Bannon, and Reince Priebus convinced him to hold off on accepting it. This piece describes Priebus’ side of that story.

May 31, 2017: Why did you hold Mr. Sessions’s resignation until May 31, 2017, and with whom did you discuss it?

Mueller has received testimony from most of the people who counseled Trump not to fire Sessions, including McGahn, Bannon, and Priebus (but not Pence). He has also gotten Sessions’ testimony on this point.

I’m particularly interested in whether Trump consulted with people not listed in the NYT story on this, such as Jared Kushner and Stephen Miller (who had counseled him to fire Comey in the first place). I also suspect that Trump had already reached out Flynn by this point to talk pardons.

June 8, 2017: What did you think about Mr. Comey’s June 8, 2017, testimony regarding Mr. Flynn, and what did you do about it?

On June 8, Comey testified to SSCI. The night before, he released a statement that reviewed much of what appeared in his memos. The hearing consisted of senators from each party trying to spin Comey’s report of being asked to drop the Flynn investigation, with little news  — though Comey did make clear the investigation covered false statements.

BLUNT: On the Flynn issue specifically, I believe you said earlier that you believe the president was suggesting you drop any investigation of Flynn’s account of his conversation with the Russian ambassador. Which was essentially misleading the vice president and others?

COMEY: Correct. I’m not going to go into the details but whether there were false statements made to government investigators, as well.

Comey refuted Trump’s claim that he didn’t ask him to stop the investigation into Flynn.

KING: In his press conference May 18th, the president responded, quote, no, no, when asked about asking you to stop the investigation into general Flynn. Is that a true statement?

COMEY: I don’t believe it is.

Comey said he viewed the Flynn investigation and the Russian one as touching, but separate, though raised the possibility of flipping Flynn.

KING: Back to Mr. Flynn. Would the — would closing out the Flynn investigation have impeded the overall Russian investigation?

COMEY: No. Well, unlikely, except to the extent — there is always a possibility if you have a criminal case against someone and squeeze them, flip them and they give you information about something else. But I saw the two as touching each other but separate.

Comey also revealed that he had shared memos memorializing his conversations with Trump with a friend.

BLUNT: You said something earlier and I don’t want to fail to follow up on, you said after dismissed, you gave information to a friend so that friend could get that information into the public media.

COMEY: Correct.

BLUNT: What kind of information was that? What kind of information did you give to a friend?

COMEY: That the — the Flynn conversation. The president had asked me to let the Flynn — forgetting my exact own words. But the conversation in the Oval Office.

Much of the hearing covered Sessions’ non-involvement. Comey deferred a number of questions to the closed session.

Trump used the Comey hearing — and his confirmation that at the time he left the president wasn’t under investigation — to have Marc Kasowitz make a statement claiming Trump never impeded the investigation and never demanded loyalty.

I am Marc Kasowitz, Predisent Trump’s personal lawyer.

Contrary to numerous false press accounts leading up to today’s hearing, Mr. Comey has now finally confirmed publicly what he repeatedly told the President privately: The President was not under investigation as part of any probe into Russian interference. He also admitted that there is no evidence that a single vote changed as a result of any Russian interference.

Mr Comey’s testimony also makes clear that the President never sought to impede the investigation into attempted Russian interference in the 2016 election, and in fact, according to Mr. Comey, the President told Mr. Comey “it would be good to find out” in that investigation if there were “some ‘satellite’ associates of his who did something wrong.” And he did not exclude anyone from that statement. Consistent with that statement, the President never, in form or substance, directed or suggested that Mr. Comey stop investigating anyone, including suggesting that that Mr. Comey“let Flynn go.” As he publicly stated the next day, he did say to Mr. Comey, “General Flynn is a good guy, he has been through a lot” and also “asked how is General Flynn is doing.”

Admiral Rogers testified that the President never “directed [him] to do anything . . . illegal, immoral, unethical or inappropriate” and never “pressured [him] to do so.” Director Coates said the same thing. The President likewise never pressured Mr. Comey. .

The President also never told Mr. Comey, “I need loyalty, I expect loyalty” in form or substance. Of course, the Office of the President is entitled to expect loyalty from those who are serving in an administration, and, from before this President took office to this day, it is overwhelmingly clear that there have been and continue to be those in government who are actively attempting to undermine this administration with selective and illegal leaks of classified information and privileged communications.

Kasowitz also accused Comey of leaking in order to lead to a special counsel investigation.

Mr. Comey has now admitted that he is one of these leakers. Today, Mr. Comey admitted that he unilaterally and surreptitiously made unauthorized disclosures to the press of privileged communications with the President. The leaks of this privileged information began no later than March 2017 when friends of Mr. Comey have stated he disclosed to them the conversations he had with the President during their January 27, 2017 dinner and February 14, 2017 White House meeting. Today, Mr. Comey admitted that he leaked to friends his purported memos of these privileged conversations, one of which he testified was classified. He also testified that immediately after he was terminated he authorized his friends to leak the contents of these memos to the press in order to “prompt the appointment of a special counsel.” Although Mr. Comey testified he only leaked the memos in response to a tweet, the public record reveals that the New York Times was quoting from these memos the day before the referenced tweet, which belies Mr. Comey’s excuse for this unauthorized disclosure of privileged information and appears to entirely retaliatory. We will leave it the appropriate authorities to determine whether this leaks should be investigated along with all those others being investigated. .

In sum, it is now established that there the President was not being investigated for colluding with the or attempting to obstruct that investigation. As the Committee pointed out today, these important facts for the country to know are virtually the only facts that have not leaked during the long course of these events.

This sort of kicked off the official campaign to discredit Comey and those who would back his story.

June 12, 2017: What did you think and do in reaction to the news that the special counsel was speaking to Mr. Rogers, Mr. Pompeo and Mr. Coats?

Public reports date Rogers and Coats’ interviews with Mueller to the week of June 12, 2017, so Pompeo’s must have been around that same time. Rogers and Coats, at least, testified that Trump tried to get them to state publicly that there was no collusion. They said the interaction was odd and uncomfortable, but that he did not order them to interfere.

Clearly, Trump responded to public reports of their being called as witnesses, though we don’t know what the response was. It’s possible that’s when Trump threatened to fire Mueller, only to back off when Don McGahn threatened to quit.

July 7, 2017: What involvement did you have in the communication strategy, including the release of Donald Trump Jr.’s emails?

I’ve laid out that I believe the evolving June 9 story is a limited hangout orchestrated by Agalarov lawyer Scott Balber. The strategy would have begun when Jared Kushner wrestled with the need to disclose the meeting, both in response to congressional investigations and for his clearance. Manafort, too, turned over emails backing the event about a month before the story came out publicly. This post talks about the response the weekend of the G-20 in Hamburg, including Ivanka sitting in on a meeting so Trump could strategize, and Hope Hicks suggesting the emails would never come out.

As a reminder, on the same day Trump had a second hour long meeting with Putin, he dictated Putin’s propaganda line that the meeting pertained to adoptions. Importantly, he hid what I’ve suggested was the quo in the quid pro quo, sanctions relief. Mueller undoubtedly would like to know if Putin helped him come up with that message, which would be really damning.

Mueller also wants to know about the decision to leak Don Jr’s emails. Bannon suspects that a Jared aide leaked the emails (his then lawyer Jamie Gorelick would cut back her work with him shortly thereafter). But remember: in a DM, Assange proposed that he give Wikileaks the email.

There’s clearly far more back story to the leaked email we don’t know yet.

If Trump’s involvement here involves coordination with Russians (like the Agalrovs, to say nothing of Putin) or Assange, it would provide damning evidence not of obstruction, but of collusion, an effort to coordinate a story about a key meeting. Trump’s lawyers have always suggested questions about Trump’s role in this statement are improper, which is itself a telling indicator that they don’t understand (or want to spin) the risk of the original June 9 meeting.

July 20, 2017: After the resignations, what efforts were made to reach out to Mr. Flynn about seeking immunity or possible pardon?

Mike Flynn tried to get Congressional immunity in March 2017, with Trump’s backing the effort in a tweet.

Mueller’s question seems to suggest even at that earlier period, someone from Trump’s camp reached out and discussed immunity with Flynn. Shortly before April 25, Trump also sent Flynn a message to “stay strong.” (h/t TC)

On July 20, the WaPo reported that Trump’s team was researching pardons. The NYT report first revealing that Trump offered pardons to Mike Flynn (and Manafort, who is curiously not mentioned in this question) describes it happening after John Dowd took over, in the wake of the revelation of the June 9 meeting and the Kasowitz firing. Dowd denied any such thing was happening on July 21, which is probably a good sign such discussions were taking place.

July 25, 2017: What was the purpose of your July 2017 criticism of Mr. Sessions? What discussions did you have with Reince Priebus in July 2017 about obtaining the Sessions resignation? With whom did you discuss it?

In late July, 2017, Trump accused Sessions of several sins: failing to crack down on leaks, failing to prosecute Hillary, and failing to fire Andrew McCabe. That must be the same time when Trump ordered Priebus to get Sessions’ resignation, which he dodged by stalling, which probably answers the “what was the purpose” question: to lay predicate to fire Sessions.

I’m particularly interested in the question about who Trump discussed this with, particularly given the provocative timing — the days before George Papadopoulos’s July 26 arrest and Paul Manafort’s July 27 condo search (using a warrant that, unlike a warrant from a May 27 storage unit search, invoked the June 9 meeting). It’s possible Trump had advance knowledge of this stuff (which would be alarming), but likely it’s a coincidence.

In any case, Mueller clearly has reason to believe Trump learned something about the investigation and discussed it with people that led him to try, again, to stop it by firing someone.

What was the purpose of the September and October 2017 statements, including tweets, regarding an investigation of Mr. Comey?

On September 1, Trump responded to reports that because Comey had a declination written before interviewing Hillary, he rigged the outcome of the investigation. In mid-October, in the wake of the Manafort indictment and George Papadopoulos plea, Trump returned to this attack. Rudy Giuliani has renewed this attack in recent days, which is presumably an attempt to undercut Comey’s credibility.

What discussions did you have regarding terminating the special counsel, and what did you do when that consideration was reported in January 2018?

The NYT report that Trump tried to fire Mueller in June 2017 made it clear that Mueller had received testimony about it (presumably from McGahn and others). Clearly, Mueller has reason to know that Trump did something else in response. Note that this report came out in the wake of the Michael Wolff book, which would give Mueller an excuse to call several of the relevant witnesses (such as Mark Corallo and Steve Bannon) as witnesses. This time period also closely follows the increasingly aggressive response in Congress.

What is the reason for your continued criticism of Mr. Comey and his former deputy, Andrew G. McCabe?

The assumption is that Trump continues to attack Comey and McCabe because doing so might harm their credibility with regards to an obstruction investigation, and that’s surely true (made all the worse by McCabe’s firing and his criminal referral).

But I increasingly believe (particularly given that the other contemporaneous witnesses to Comey’s concerns, like James Baker, are not named) that’s not the only reason Trump is doing this. My guess is it’s an attempt to undermine their decision to investigate Flynn. We now know, for example, that McCabe set up the interview with Flynn on Comey’s direction. So in addition to discrediting key witnesses against him, it seems possible that Trump is also trying to discredit the decision, at a time when  FBI was about to close a counterintelligence investigation into Flynn, to instead interview him, leading to the exposure of Trump’s efforts to undermine US policy during the transition period.

RESOURCES

These are some of the most useful resources in mapping these events.

Mueller questions as imagined by Jay Sekulow

CNN’s timeline of investigative events

Majority HPSCI Report

Minority HPSCI Report

Trump Twitter Archive

Jim Comey March 20, 2017 HPSCI testimony

Comey May 3, 2017 SJC testimony

Jim Comey June 8, 2017 SSCI testimony

Jim Comey written statement, June 8, 2017

Jim Comey memos

Sally Yates and James Clapper Senate Judiciary Committee testimony, May 8, 2017

NPR Timeline on Trump’s ties to Aras Agalarov

George Papadopoulos complaint

George Papadopoulos statement of the offense

Mike Flynn statement of the offense

Internet Research Agency indictment

Text of the Don Jr Trump Tower Meeting emails

Jared Kushner’s statement to Congress

Erik Prince HPSCI transcript

THE SERIES

Part One: The Mueller Questions Map Out Cultivation, a Quid Pro Quo, and a Cover-Up

Part Two: The Quid Pro Quo: a Putin Meeting and Election Assistance, in Exchange for Sanctions Relief

Part Three: The Quo: Policy and Real Estate Payoffs to Russia

Part Four: The Quest: Trump Learns of the Investigation

Part Five: Attempting a Cover-Up by Firing Comey

2018 Senate Intelligence Global Threat Hearing Takeaways

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Today was the annual Senate Intelligence Committee Global Threat Hearing, traditionally the hearing where Ron Wyden gets an Agency head to lie on the record.

That didn’t happen this time.

Instead, Wyden gave FBI Director Christopher Wray the opportunity to lay out the warnings the FBI had given the White House about Rob Porter’s spousal abuse problems, which should have led to Porter’s termination or at least loss of access to classified information.

The FBI submitted a partial report on the investigation in question in March. And then a completed background investigation in late July. That, soon thereafter, we received request for follow-up inquiry. And we did that follow-up and provided that information in November. Then we administratively closed the file in January. And then earlier this month we received some additional information and we passed that on as well.

That, of course, is the big takeaway the press got from the hearing.

A follow-up from Martin Heinrich shortly after Wyden’s question suggested he had reason to know of similar “areas of concern” involving Jared Kushner (which, considering the President’s son-in-law is under investigation in the Russian investigation, is not that surprising). Wray deferred that answer to closed session, so the committee will presumably learn some details of Kushner’s clearance woes by the end of the day.

Wray twice described the increasing reliance on “non-traditional collectors” in spying against the US, the second time in response to a Marco Rubio question about the role of Chinese graduate students in universities. Rubio thought the risk was from the Confucius centers that China uses to spin Chinese culture in universities. But not only did Wray say universities are showing less enthusiasm for Confucius centers of late, but made it clear he was talking about “professors, scientists, and students.” This is one of the reasons I keep pointing to the disproportionate impact of Section 702 on Chinese-Americans, because of this focus on academics from the FBI.

Susan Collins asked Mike Pompeo about the reports in The Intercept and NYT on CIA’s attempts to buy back Shadow Brokers tools. Pompeo claimed that James Risen and Matt Rosenberg were “swindled” when they got proffered the story, but along the way confirmed that the CIA was trying to buy stuff that “might have been stolen from the US government,” but that “it was unrelated to this idea of kompromat that appears in each of those two articles.” That’s actually a confirmation of the stories, not a refutation of them.

There was a fascinating exchange between Pompeo and Angus King, after the latter complained that, “until we have some deterrent capacity we are going to continue to be attacked” and then said right now there are now repercussions for Russia’s attack on the US.

Pompeo: I can’t say much in this setting I would argue that your statement that we have done nothing does not reflect the responses that, frankly, some of us at this table have engaged in or that this government has been engaged in both before and after, excuse me, both during and before this Administration.

King: But deterrence doesn’t work unless the other side knows it. The Doomsday Machine in Dr. Strangelove didn’t work because the Russians hadn’t told us about it.

Pompeo: It’s true. It’s important that the adversary know. It is not a requirement that the whole world know it.

King: And the adversary does know it, in your view?

Pompeo: I’d prefer to save that for another forum.

Pompeo later interjected himself into a Kamala Harris discussion about the Trump Administration’s refusal to impose sanctions by suggesting that the issue is Russia’s response to cumulative responses. He definitely went to some effort to spin the Administration’s response to Russia as more credible than it looks.

Tom Cotton made two comments about the dossier that Director Wray deferred answering to closed session.

First, he asked about Christopher Steele’s ties to Oleg Deripaska, something I first raised here and laid out in more detail in this Chuck Grassley letter to Deripaska’s British lawyer Paul Hauser. When Cotton asked if Steele worked for Deripaska, Wray said, “that’s not something I can answer.” When asked if they could discuss it in a classified setting, Wray said, “there might be more we could say there.”

Cotton then asked if the FBI position on the Steele dossier remains that it is “salacious and unverified” as he (misleadingly) quoted Comey as saying last year. Wray responded, “I think there’s maybe more we can talk about this afternoon on that.” It’s an interesting answer given that, in Chuck Grassley’s January 4 referral, he describes a “lack of corroboration for [Steele’s dossier] claims, at least at the time they were included in the FISA applications,” suggesting that Grassley might know of corroboration since. Yet in an interview by the even better informed Mark Warner published 25 days later, Warner mused that “so little of that dossier has either been fully proven or conversely, disproven.” Yesterday, FP reported that BuzzFeed had hired a former FBI cybersecurity official Anthony Ferrante to try to chase down the dossier in support of the Webzilla and Alfa bank suits against the outlet, so it’s possible that focused attention (and subpoena power tied to the lawsuit) may have netted some confirmation.

Finally, Richard Burr ended the hearing by describing what the committee was doing with regards to the Russian investigation. He (and Warner) described an effort to bring out an overview on ways to make elections more secure. But Burr also explained that SSCI will release a review of the ICA report on the 2016 hacks.

In addition to that, our review of the ICA, the Intel Committee Assessment, which was done in the F–December of 06, 16–we have reviewed in great detail, and we hope to report on what we found to support the findings where it’s appropriate, to be critical if in fact we found areas where we found came up short. We intend to make that public. Overview to begin with, none of this would be without a declassification process but we will have a public version as quickly as we can.

Finally, in the last dregs of the hearing, Burr suggested they would report on who colluded during the election.

We will continue to work towards conclusions  on any cooperation or collusion by any individual, campaign, or company with efforts to influence elections or create societal chaos in the United States.

My impression during the hearing was that this might refer to Cambridge Analytica, which tried to help Wikileaks organize hacked emails — and it might well refer to that. But I wonder if there’s not another company he has in mind.

Eleven (or Thirteen) Senators Are Cool with Using Section 702 to Spy on Americans

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The Senate Intelligence Committee report on its version of Section 702 “reform” is out. It makes it clear that my concerns raised here and here are merited.

In this post, I’ll examine what the report — particularly taken in conjunction with the Wyden-Paul reform — reveals about the use of Section 702 for domestic spying.

The first clue is Senator Wyden’s effort to prohibit collection of domestic communications — the issue about which he and Director of National Intelligence Dan Coats have been fighting about since June.

By a vote of four ayes to eleven noes, the Committee rejected an amendment by Senator Wyden that would have prohibited acquisition under Section 702 of communications known to be entirely domestic under authority to target certain persons outside of the United States. The votes in person or by proxy were as follows: Chairman Burr—no; Senator Risch—no; Senator Rubio—no; Senator Collins—no; Senator Blunt—no; Senator Lankford—no; Senator Cotton—no; Senator Cornyn—no; Vice Chairman Warner—no; Senator Feinstein—aye; Senator Wyden—aye; Senator Heinrich— aye; Senator King—no; Senator Manchin—no; and Senator Harris—aye.

It tells us that the government collects entirely domestic communications, a practice that Wyden tried to prohibit in his own bill, which added this language to Section 702.

(F) may not acquire communications known to be entirely domestic;

This would effectively close the 2014 exception, which permitted the NSA to continue to collect on a facility even after it had identified that Americans also used it. As I have explained is used to collect Tor (and probably VPN) traffic to obtain foreigners’ data. I suspect that detail is what Wyden had in mind when, in his comments in the report, he said the report itself “omit[s] key information about the scope of authorities granted the government” (though there are likely other things this report hides).

I have concerns about this report. By omitting key information about the scope of authorities granted the government, the Committee is itself contributing to the continuing corrosive problem of secret law

As the bill report lays out, Senators Burr, Risch, Rubio, Collins, Blunt, Lankford, Cotton, Cornyn, Warner, King, and Manchin are all cool using a foreign surveillance program to spy on their constituents, especially given that Burr has hidden precisely the impact of that spying in this report.

Any bets on whether they might have voted differently if we all got to know what kind of spying on us this bill authorized.

That, of course, is only eleven senators who are cool with treating their constituents (or at least those using location obscuring techniques) like foreigners.

But I’m throwing Feinstein and Harris in with that group, because they voted against a Wyden amendment that would have limited how the government could use 702 collected data in investigations.

By a vote of two ayes to thirteen noes, the Committee rejected an amendment by Senator Wyden that would have imposed further restrictions on use of Section 702-derived information in investigations and legal proceedings. The votes in person or by proxy were as follows: Chairman Burr—no; Senator Risch—no; Senator Rubio—no; Senator Collins—no; Senator Blunt—no; Senator Lankford—no; Senator Cotton—no; Senator Cornyn—no; Vice Chairman Warner—no; Senator Feinstein—no; Senator Wyden— aye; Senator Heinrich—aye; Senator King—no; Senator Manchin— no; and Senator Harris—no.

While we don’t have the language of this amendment, I assume it does what this language in Wyden’s bill does, which is to limit the use of Section 702 data for purposes laid out in the known certificates (foreign government including nation-state hacking, counterproliferation, and counterterrorism — though this language makes me wonder if there’s a Critical Infrastructure certificate or whether it only depends on the permission to do so in the FBI minimization procedures, and the force protection language reminds me of the concerns raised by a recent HRW FOIA permitting the use of 12333 language to do so).

(B) in a proceeding or investigation in which the information is directly related to and necessary to address a specific threat of—

(i) terrorism (as defined in clauses (i) through (iii) of section 2332(g)(5)(B) of title 18, United States Code);

(ii) espionage (as used in chapter 37 of title 18, United States Code);

(iii) proliferation or use of a weapon of mass destruction (as defined in section 2332a(c) of title 18, United States Code);

(iv) a cybersecurity threat from a foreign country;

(v) incapacitation or destruction of critical infrastructure (as defined in section 1016(e) of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 (42 U.S.C. 5195c(e))); or

(vi) a threat to the armed forces of the United States or an ally of the United States or to other personnel of the United States Government or a government of an ally of the United States.

Compare this list with the one included in the bill, which codifies the use of 702 data for issues that,

“Affects, involves, or is related to” the national security of the United States (which will include proceedings used to flip informants on top of whatever terrorism, proliferation, or espionage and hacking crimes that would more directly fall under national security) or involves,

  • Death
  • Kidnapping
  • Serious bodily injury
  • Specified offense against a minor
  • Incapacitation or destruction of critical infrastructure (critical infrastructure can include even campgrounds!)
  • Cybersecurity, including violations of CFAA
  • Transnational crime, including transnational narcotics trafficking
  • Human trafficking (which, especially dissociated from transnational crime, is often used as a ploy to prosecute prostitution; the government also includes assisting undocumented migration to be human trafficking)

[snip]

Importantly, the bill does not permit judicial review on whether the determination that something “affects, involves, or is related to” national security. Meaning Attorney General Jeff Sessions could decide tomorrow that it can collect the Tor traffic of BLM or BDS activists, and no judge can rule that’s an inappropriate use of a foreign intelligence program.

The bill report’s description of this section makes it clear that — in spite of its use of the word “restriction,” — this is really about providing affirmative “permission.”

Section 6 provides restrictions on the Federal Bureau of Investigation’s (FBI’s) use of Section 702-derived information, so that the FBI can use the information as evidence only in court proceedings [my emphasis]

That is, Wyden would restrict the use of 702 data to purposes the FISC has affirmatively approved, rather than the list of 702 purposes expanded to include the most problematic uses of Tor: all hacking, dark markets, and child porn.

So while Feinstein and Harris voted against the use of 702 to collect known domestic communications, they’re still okay using domestic Tor commuincations they say they don’t want to let NSA collect to prosecute Americans (which is actually not surprising given their past actions on sex workers).

Again, they’re counting on the fact that the bill report is written such that their constituents won’t know that this is going on. Unless they read me.

Look, I get the need to collect on Tor traffic to go after its worst uses. But if you’re going to do that, stop pretending this is a foreign surveillance bill, and instead either call it a secret court bill (one that effectively evades warrant requirements for all Tor wiretapping in this country), or admit you’re doing that collection and put review of it back into criminal courts where it belongs.

Senate Intelligence Committee Tried to Say WikiLeaks Constituted — Not Just Resembled — A Spy

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The bill report for the Intelligence Authorization is out. Among other things, it provides more details on the Senate Intelligence Committee’s efforts to get WikiLeaks treated as a non-state hostile intelligence service. It reveals that the original language of the bill

By voice vote, the Committee adopted a second-degree amendment by Senator King to an amendment by Senator Wyden that would have stricken Section 623 of the bill. Section 623 originally provided a Sense of Congress that WikiLeaks and its senior leadership constitute a non-state hostile intelligence service.

By a vote of 13 ayes to 2 noes, the Committee adopted the amendment by Senator Wyden that would have stricken Section 623 of the bill, as modified by the second-degree amendment by Senator King, to provide a Sense of Congress that WikiLeaks and its senior leadership resemble a non-state hostile intelligence service. The votes in person or by proxy were as follows: [my emphasis]

Chairman Burr–aye;

Senator Risch–aye;

Senator Rubio–aye;

Senator Collins–aye;

Senator Blunt–aye;

Senator Lankford–aye;

Senator Cotton–aye;

Senator Cornyn–aye;

Vice Chairman Warner–aye;

Senator Feinstein–aye;

Senator Wyden–no;

Senator Heinrich–aye;

Senator King–aye;

Senator Manchin–aye;

Senator Harris–no.

As you can see, Kamala Harris is the only one, besides Ron Wyden, who voted against this troubling amendment.

Here’s her statement from the report:

In particular, I have reservations about Section 623, which establishes a Sense of Congress that WikiLeaks and the senior leadership of WikiLeaks resemble a non-state hostile intelligence service. The Committee’s bill offers no definition of “non-state hostile intelligence service” to clarify what this term is and is not. Section 623 also directs the United States to treat WikiLeaks as such a service, without offering further clarity.

To be clear, I am no supporter of WikiLeaks, and believe that the organization and its leadership have done considerable harm to this country. This issue needs to be addressed. However, the ambiguity in the bill is dangerous because it fails to draw a bright line between WikiLeaks and legitimate journalistic organizations that play a vital role in our democracy.

I supported efforts to remove this language in Committee and look forward to working with my colleagues as the bill proceeds to address my concerns.

What a Difference a Day Makes to the Privileges of a King

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As part of his testimony today, Jim Comey revealed he gave some or all of the nine memos he wrote documenting his interactions with President Trump to a friend, since confirmed to be Columbia Professor Dan Richman, who in turn shared one with the press.

COLLINS: Finally, did you show copies of your memos to anyone outside of the department of justice?

COMEY: Yes.

COLLINS: And to whom did you show copies?

COMEY: I asked — the president tweeted on Friday after I got fired that I better hope there’s not tapes. I woke up in the middle of the night on Monday night because it didn’t dawn on me originally, that there might be corroboration for our conversation. There might a tape. My judgement was, I need to get that out into the public square. I asked a friend of mine to share the content of the memo with a reporter. Didn’t do it myself for a variety of reasons. I asked him to because I thought that might prompt the appointment of a special counsel. I asked a close friend to do it.

COLLINS: Was that Mr. Wittes?

COMEY: No.

COLLINS: Who was it?

COMEY: A close friend who is a professor at Columbia law school.

The fact that Comey released the memo through Richman formed part of Trump lawyer Marc Kasowitz’s pushback after the hearing.

Of course, the Office of the President is entitled to expect loyalty from those who are serving in an administration, and, from before this President took office to this day, it is overwhelmingly clear that there have been and continue to be those in government who are actively attempting to undermine this administration with selective and illegal leaks of classified information and privileged communications. Mr. Comey has now admitted that he is one of the leakers.

Today, Mr. Comey admitted that he unilaterally and surreptitiously made unauthorized disclosures to the press of privileged communications with the President. The leaks of this privileged information began no later than March 2017 when friends of Mr. Comey have stated he disclosed to them the conversations he had with the President during their January 27, 2017 dinner and February 14, 2017 White House meeting. Today, Mr. Comey admitted that he leaked to his friends his purported memos of these privileged conversations, one of which he testified was classified. He also testified that immediately after he was terminated he authorized his friends to leak the contents of these memos to the press in order to “prompt the appointment of a special counsel.” Although Mr. Comey testified he only leaked the memos in response to a tweet, the public record reveals that the New York Times was quoting from these memos the day before the referenced tweet, which belies Mr. Comey’s excuse for this unauthorized disclosure of privileged information and appears to [sic] entirely retaliatory.

Kasowitz gets a lot wrong here. Comey said one memo was classified, but that’s the memo that memorialized the January 6 meeting, not the ones described here. And the NYT has already corrected the claim that the shared memos preceded the tweet.

And, as a number of people (including Steve Vladeck) have noted, even if this information were covered by executive privilege, even if that privilege weren’t waived with Trump’s tweet, it’s not a crime to leak privileged information.

Nevertheless, Kasowitz’ focus on purportedly privileged documents is all the more interesting given the pathetic conduct of Director of National Intelligence Dan Coats and NSA Director Mike Rogers at yesterday’s 702 hearing. After a great deal of obfuscation from both men about why they couldn’t answer questions about Trump’s request they intervene in the FBI’s Mike Flynn investigation, Angus King finally got Rogers to admit that he and Coats never got a conclusive answer about whether the White House was invoking privilege.

King: I think you testified, Admiral Rogers, that you did discuss today’s testimony with someone in the White House?

Rogers: I said I asked did the White House intend to invoke executive privilege with respect to interactions between myself and the President of the United States.

King: And what was the answer to that question?

Rogers: To be honest I didn’t get a definitive answer. Both myself and the DNI are still talking–

King: So then I’ll ask both of you the same question. Why are you not answering these questions? Is there an invocation by the President of the United States of executive privilege? Is there or not?

Rogers: Not that I’m aware of.

King: Then why are you not answering the question?

Rogers: Because I feel it is inappropriate, Senator.

King: What you feel isn’t relevant Admiral. What you feel isn’t the answer. The question is why are you not answering the questions. Is it an invocation of executive privilege? If there is, then let’s know about it, and if there isn’t answer the questions.

Rogers: I stand by the comments I’ve made. I’m not interested in repeating myself, Sir. And I don’t mean that in a contentious way.

King: Well I do mean it in a contentious way. I don’t understand why you’re not answering our questions. When you were confirmed before the Armed Services Committee you took an oath, do you solemnly swear to give the committee the truth, the full truth and nothing but the truth. You answered yes to that.

Rogers: I do. And I’ve also answered that those conversations were classified. It is not appropriate in an open forum to discuss those classified conversations.

King: What is classified about a conversation about whether or not you should intervene in the FBI investigation?

Rogers: Sir I stand by my previous comments.

King: Mr. Coats? Same series of questions. What’s the basis for your refusal to answer these questions today?

Coats: The basis is what I’ve previously explained, I do not believe it is appropriate for me to–

King: What’s the basis? I’m not satisfied with I do not believe it is appropriate or I do not feel I should answer. I want to understand a legal basis. You swore that oath to tell us the truth, the whole truth, and nothing but the truth, and today you are refusing to do so. What is the legal basis for your refusal to testify to this committee?

Coats: I’m not sure I have a legal basis.

In other words, these men admit they had no legal basis (they’re not classified, no matter what Rogers claimed) to dodge the Committee’s question. But nevertheless they’re invoking things like their feelings to avoid testifying.

Clearly, the White House is playing a game here, invoking loyalty rather than law to compel silence from its top officials.

Kasowitz’ claims are, on their face, bogus. But taken in conjunction with the dodges from Coats and Rogers, they’re all the more problematic.

 

Seven Democrats Write Obama Asking Him to Declassify More Information on Russian Involvement in the Election

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Ron Wyden, five other Democrats, and Dem caucusing Independent Angus King just wrote Obama a cryptic letter. The entire body of the letter reads:

We believe there is additional information concerning the Russian Government and the U.S. election that should be declassified and released to the public. We are conveying specifics through classified channels.

Thank you for your attention to this important matter.

Aside from the fact that this suggests (as Wyden’s cryptic letters always d0) there is something meaty that we really ought to know, I find the list of signers rather curious. In addition to Wyden, the following Senators signed the letter:

  • Jack Reed
  • Mark Warner
  • Barb Mikulski
  • Martin Heinrich
  • Angus King
  • Mazie Hirono

That is, every Democratic SSCI member except current Chair Dianne Feinstein, plus Senate Armed Services Chair Jack Reed, signed the letter. So every Democrat except DiFi and Majority Leader Harry Reid signed the letter, suggesting it is something that got briefed to the full Senate Intelligence Committee as well as the Ranking Members of SASC (the latter of which suggests NSA or CYBERCOM may be involved).

I’m as interested in the fact that DiFi and Reid didn’t sign as that the others did sign. It can’t be that Reid is retiring and DiFi is heading to SJC (it’s still unclear whether she’ll remain on SSCI or not). After all, Mikulski is retiring as well.

Plus, Harry Reid wrote a far more explicit letter last month to Jim Comey — apparently following up on a non-public letter send months earlier — alluding to direct coordination between Trump and Russia.

In my communications with you and other top officials in the national security community, it has become clear that you possess explosive information about close ties and coordination between Donald Trump, his top advisors, and the Russian government – a foreign interest openly hostile to the United States, which Trump praises at every opportunity. The public has a right to know this information. I wrote to you months ago calling for this information to be released to the public. There is no danger to American interests from releasing it. And yet, you continue to resist calls to inform the public of this critical information.

Finally, what to make of the fact that not even John McCain signed onto this letter? Reed’s inclusion makes it clear that McCain, too, must have been briefed. He has been outspoken about Trump’s moves to cozy up to Putin. If he has seen — and objects to — such coordination, why not sign onto this letter and give it the patina of bipartisanship?

Mitch McConnell and Richard Burr’s Authoritarian Power Grab Fails

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Last night, Mitch McConnell dealt himself a humiliating defeat. As I correctly predicted a month before events played out, McConnell tried to create a panic that would permit him and Richard Burr to demand changes — including iMessage retention, among other things — to USA F-ReDux. That is, in fact, what Mitch attempted to do, as is evident from the authoritarian power grab Burr released around 8:30 last night (that is, technically after the Administration had already missed the FISA Court deadline to renew the dragnet).

Contrary to a lot of absolutely horrible reporting on Burr’s bill, it does not actually resemble USA F-ReDux.

As I laid out here, it would start by gutting ECPA, such that the FBI could resume using NSLs to do the bulky Internet collection that moved to Section 215 production in 2009.

It also vastly expanded the application of the call record function (which it very explicitly applied to electronic communications providers, meaning it would include all Internet production, though that is probably what USA F-ReDux does implicitly), such that it could be used against Americans for any counterterrorism or counterintelligence (which includes leaks and cybersecurity) function, and for foreigners (which would chain onto Americans) for any foreign intelligence purpose. The chaining function includes the same vague language from USA F-ReDux which, in the absence of the limiting language in the House Judiciary Committee bill report, probably lets the government chain on session identifying information (like location and cookies, but possibly even things like address books) to do pattern analysis on providers’ data. Plus, the bill might even permit the government to do this chaining in provider data, because it doesn’t define a key “permit access” term.

Burr’s bill applies EO 12333 minimization procedures (and notice), not the stronger Section 215 ones Congress mandated in 2006; while USA F-ReDux data will already be shared far more widely than it is now, this would ensure that no defendant ever gets to challenge this collection. It imposes a 3-year data retention mandate (which would be a significant new burden on both Verizon and Apple). It appears to flip the amicus provision on its head, such that if Verizon or Apple challenged retention or any other part of the program, the FISC could provide a lawyer for the tech companies and tell that lawyer to fight for retention. And in the piece de la resistance, the bill creates its very own Espionage Act imposing 10 year prison terms for anyone who reveals precisely what’s happening in this expanded querying function at providers.

It is, in short, the forced-deputization of the nation’s communications providers to conduct EO 12333 spying on Americans within America.

Had Mitch had his way, after both USA F-ReDux and his 2-month straight reauthorization failed to get cloture, he would have asked for a week extension, during which the House would have been forced to come back to work and accept — under threat of “going dark” — some of the things demanded in Burr’s bill.

It didn’t work out.

Sure, both USA F-ReDux (57-42) and the short-term reauthorization (45-54) failed cloture votes.

But as it was, USA F-ReDux had far more support than the short-term reauthorization. Both McConnell and Rand Paul voted against both, for very different reasons. The difference in the vote results, however, was that Joe Donnelly (D), Jeff Flake (R), Ron Johnson (R), James Lankford (R), Bill Nelson (D), Tim Scott (R), and Dan Sullivan (R) voted yes to both. McConnell’s preferred option didn’t even get a majority of the vote, because he lost a chunk of his members.

Then McConnell played the hand he believed would give himself and Burr leverage. The plan — as I stated — was to get a very short term reauthorization passed and in that period force through changes with the House (never mind that permitting that to happen might have cost Boehner his Speakership, that’s what McConnell and Burr had in mind).

First, McConnell asked for unanimous consent to pass an extension to June 8. (h/t joanneleon for making the clip) But Paul, reminding that this country’s founders opposed General Warrants and demanding 2 majority vote amendments, objected. McConnell then asked for a June 5 extension, to which Ron Wyden objected. McConnell asked for an extension to June 3. Martin Heinrich objected. McConnell asked for an extension to June 2. Paul objected.

McConnell’s bid failed. And he ultimately scheduled the Senate to return on Sunday afternoon, May 31.

By far the most likely outcome at this point is that enough Senators — likely candidates are Mark Kirk, Angus King, John McCain, Joni Ernst, or Susan Collins — flip their vote on USA F-ReDux, which will then be rushed to President Obama just hours before Section 215 (and with it, Lone Wolf and Roving Wiretaps) expires on June 1. But even that (because of when McConnell scheduled it) probably requires Paul to agree to an immediate vote.

But if not, it won’t be the immediate end of the world.

On this issue, too, the reporting has been horrible, even to almost universal misrepresentation of what Jim Comey said about the importance of expiring provisions — I’ve laid out what he really said and what it means here. Comey cares first and foremost about the other Section 215 uses, almost surely the bulky Internet collection that moved there in 2009. But those orders, because they’re tied to existing investigations (of presumably more focused subject than the standing counterterrorism investigation to justify the phone dragnet), they will be grand-fathered at least until whatever expiration date they have hits, if not longer. So FBI will be anxious to restore that authority (or move it back to NSLs as Burr’s bill would do), especially since unlike the phone dragnet, there aren’t other ways to get the data. But there’s some time left to do that.

Comey also said the Roving Wiretap is critical. I’m guessing that’s because they use it to target things like Tor relays. But if that’s the primary secretly redefined function, they likely have learned enough about the Tor relays they’re parked on to get individual warrants. And here, too, the FBI likely won’t have to detask until expiration days on these FISA orders come due.

As for the phone dragnet and the Lone Wolf? Those are less urgent, according to Comey.

Now, that might help the Republicans who want to jam through some of Burr’s demands, since most moderate reformers assume the phone dragnet is the most important function that expires. Except that McConnell and others have spent so long pretending that this is about a phone dragnet that in truth doesn’t really work, that skittish Republicans are likely to want to appear to do all they can to keep the phone dragnet afloat.

As I said, the most likely outcome is that a number of people flip their vote and help pass USA F-ReDux.

But as with last night’s “debate,” no one really knows for sure.

American Hegemony: Delivering “Unpredictable Instability” the World Over

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I love Global Threat Hearings and curse you Richard Burr for holding the Senate Intelligence Committee’s hearing in secret.

At least John McCain had the courage to invite James Clapper for what might have been (but weren’t) hard questions in public in front of Senate Armed Services Committee Thursday.

Clapper started with a comment that was not prominent in (though it definitely underscored) his written testimony (Update: Here’s the transcript of his as-delivered statement.)

Unpredictable instability is the new normal.The year 2014 saw the highest rate of political instability since 1992. The most deaths as a result of state-sponsored mass killings since the early 1990s. And the highest number of refugees and internally displaced persons (or IDPs) since World War II. Roughly half of the world’s currently stable countries are at some risk of instability over the next two years.

It’s a damning catalog. All the more so given that the US has been the world’s unquestioned hegemon since that period in the early 1990s when everything has been getting worse, since that period when the first President Bush promised a thousand points of light.

And while the US can’t be held responsible for all the instability in the world right now, it owns a lot of it: serial invasions in the Middle East and the coddling of Israel account for many of the refugees (though there’s no telling what would have happened with the hundred thousand killed and millions of refugees in Syria had the second President Bush not invaded Iraq, had he taken Bashar al-Assad up on an offer to partner against al Qaeda, had we managed the aftermath of the Arab Spring differently).

US-backed neoliberalism and austerity — and the underlying bank crisis that provided the excuse for it — has contributed to instability elsewhere, and probably underlies those countries that Clapper thinks might grow unstable in the next year.

We’re already seeing instability arising from climate change; the US owns some of the blame for that, and more for squandering its leadership role on foreign adventures rather than pushing a solution to that more urgent problem (Clapper, by the way, thinks climate change is a problem but unlike Obama doesn’t consider it the most serious one).

There are, obviously, a lot of other things going on. Clapper talked admiringly of China’s modernization of its military, driven by domestically developed programs, an obvious development when a country becomes the manufacturing powerhouse of the world. But China’s growing influence comes largely in the wake of, and in part because of, stupid choices the US has made.

There was, predictably, a lot of discussion about cyberthreats, even featuring Senate Intelligence Committee member Angus King arguing we need an offensive threat (we’ve got one — and have been launching pre-emptive strikes for 9 years now — as he would know if he paid attention to briefings or read the Intercept or the New York Times) to deter others from attacking us with cyberweapons.

Almost everyone at the hearing wanted to talk about Iran, without realizing that a peace deal with it would finally take a step towards more stability (until our allies the Saudis start getting belligerent as a result).

Still, even in spite of the fact that Clapper started with this inventory of instability, there seemed zero awareness of what a damning indictment that is for the world’s hegemon. Before we address all these other problems, shouldn’t we focus some analysis on why American hegemony went so badly wrong?

The “DSOP Accommodation”

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In what may serve as the public transition moment from Dianne Feinstein to Richard Burr (in part because Saxby Chambliss was absent), the Senate Intelligence Committee considered the nomination of Nick Rasmussen to head National Counterterrorism Center yesterday. He’s long served as the Deputy anyway, so he’s very well qualified, and the hearing was one of those love affairs you often see (though in this case I’m not aware of any big flags that the Committee might soon regret, as I predicted during John Brennan’s confirmation).

That said, I highly recommend Rasmussen’s Additional Prehearing Answers. Along with a really accessible (and welcome) description of many of NCTC’s functions, it includes (question 17) what appears to be his description of his role in developing the Drone Rule Book.

I wanted to also point to his discussion of the Directorate of Strategic Operational Planning (see questions 11 and 13). In 2012, DSOP was described as an important part of CT, but one Congress had largely neglected:

The Directorate of Strategic Operational Planning is supposed to be the mechanism for government-wide strategic operational planning and is half of NCTC’s mission, yet oversight is negligible.  The seeming importance of DSOP has been highlighted in testimony by NCTC leadership, yet relatively unchallenged by Congress in hearings.  In his statement to the Senate Select Committee on Intelligence as nominee for the Director of the NCTC, Adm. John Scott Redd called strategic operational planning “substantial, daunting and, I believe, very necessary.”[xii]  Through the years, SOP has been called “truly revolutionary”[xiii] as the government has “come together in ways…never seen during…decades of government service.”[xiv]  Despite caveats of strategic operational planning as “new to the US government,” [xv]SOP was called “foundational”[xvi] to counterterrorism efforts.  Succeeding NCTC Director Michael Leiter said he was “more convinced than ever that success against terrorism will only come through such coordinated and synchronized efforts—to include the full weight of our diplomatic, financial, military, intelligence, homeland security and law enforcement activities.” [xvii]  For such weighty importance, however, Congress hardly paid attention to DSOP.

Since then, however, it has become clear that one reason Congress hadn’t been paying attention is because the Executive wasn’t sharing details on it. In John Brennan’s prehearing questions, for example, the Committee hammered him a bit for withholding information.

Question 23: Please describe any involvement you have had in the Administration’s responses to the Committee’s requests for the strategies produced by the Directorate of Strategic Operational Planning, including whether you personally made any decision or recommendation regarding the Committee’s access to such strategies and, if so, providing the specific legal basis for your decision or recommendation.

A: In my capacity as Assistant to the President for Homeland Security and Counterterrorism, I have conferred with NCTC Director Matt Olsen on how to determine what elements of those NSS-led counterterrorism implementation plans that NCTC’s Directorate of Strategic Operational Planning (DSOP) has contributed to should be shared with the Committee. DSOP supports the NSS in helping to draft and coordinate some–not all–CT implementation plans and to compile related department and agency activities. These documents often contain policy-focused information from the NSS that is deliberative in nature; include information on non-intelligence-related activities that departments and agencies may be pursuing; and, in some cases, access to documents is limited by the NSS due to security sensitivities around the CT planning/implementation effort. I have worked with Director Olsen to share with the SSCI those plans or parts of plan that are not deliberative in nature and that involve intelligence activities. I have supported NCTC’s decision to respond to SSCI requests for briefings/information on the non-deliberative, intelligence-related aspects of particular plans and would support SSCI requests for briefings/information from other parts of the intelligence community, including CIA, as it relates to particularly plans.

The question on this topic addressed to Rasmussen is more circumspect.

Question 13: Historically, the Committee has had difficulty in obtaining the strategies that are produced by NCTC’s Directorate of Strategic Operational Planning. If confirmed, will you abide by the current accommodation that has been reached between the Committee and NCTC?

A: Yes. I am familiar with the accommodation that has been reached with the Committee with respect to the strategies that DSOP produces and, if confirmed,, I would continue to abide by it.

The response doesn’t really reveal whether the SSCI is actually learning what kind of schemes get considered during this strategic response to terrorism; it sure seems to be limited.

As it happens, two of the maybe 12 questions addressed to Rasmussen addressed the question as well.  Rising Chair Burr challenged Rasmussen what he — in this DSOP role — would do strategically to combat terrorism (I liked his emphasis that DSOP, not NSC, is actually the agency in charge).

Burr: What is NCTC as the Executive agent for our nation’s strategy gonna do about [the broad threat of terrorism]?

Rasmussen: [pauses] The role that NCTC plays in carrying out Strategic Operational Planning in support of the government is one that has us tied very closely to the National Security Council staff and the policy development process for pursuing strategies against–on counterterrorism. We work with the National Security Council staff to develop whole of government plans to address our counterterrorism concerns in each of the theaters around the world. Not just one single theater, for ex–as you would well expect, Senator. The efforts to develop strategies against ISIL is at a particularly energetic pace right now. But our Strategic Operational Planning capability is also brought to bear on the whole array of CT challenges we face, in Africa, in Asia, in South Asia, every region you can think of. And so I would consider our job at NCTC to make sure that we aren’t leaving any holes in that fabric of strategy as we look out across all of the different CT challenges that we face, while at the same time prioritizing where effort needs to be most energetically directed. And that of course right now would argue for a lot of effort to be directed at the challenges we’re facing in Syria and Iraq.

And Angus King askedwhy we don’t develop something akin to the Kennan containment strategy used against the Soviet Union.

Rasmussen: The strategies that we try to help produce at NCTC in support of the National Security Council staff — in my answer to Chairman Feinstein [sic] are typically whole of government strategies, not just relying on our intelligence capabilities or our military capabilities but also trying to take advantage of the abilities, the resources we have across the government to try to produce the conditions that would over time eat away at support for terrorism in some of these conflict locations, um, overseas. At the same time, we all go into it understanding well that those effort will ultimately take years if not decades to play out for us to reap the benefits of those kinds of strategies, and in the meantime, you’re left to manage a very difficult threat environment.

Note that, whatever Rasmussen’s commitment to the DSOP “accommodation” to share information with SSCI, he still seems to defer to NSC on this topic, even though the law says that NCTC should take the lead.

It may well be that the White House (properly, to a point) believes that strategic planning against terrorism is an inherent Executive function. But it doesn’t seem like the White House should be hiding all this — to whatever extent it is — from its Congressional overseers, particularly given how easily the fight against terrorism can turn into support for terrorism.

In Announcing Support for Declassifying Report, Susan Collins Uses Word “Torture”

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It is fairly big — and welcome — news that, along with Angus King, Susan Collins will support the release of the Senate Torture Report. Collins’ vote will give the report the patina of bipartisanship, which will therefore increase its legitimacy among the chattering classes.

Just as welcome, however, is the language the Maine Senators use to describe what CIA did.

We remain strongly opposed to the use of torture, believing that it is fundamentally contrary to American values. While we have some concerns about the process for developing the report, its findings lead us to conclude that some detainees were subjected to techniques that constituted torture. This inhumane and brutal treatment never should have occurred. Further, the report raises serious concerns about the CIA’s management of this program.

Our vote to declassify this report does not signal our full endorsement of all of its conclusions or its methodology. The report has some intrinsic limitations because it did not involve direct interviews of CIA officials, contract personnel, or other Executive branch personnel. It also, unfortunately, did not include the participation of the staff of Republican Committee members. We do, however, believe in transparency and believe that the Executive Summary, and Additional and Dissenting Views, and the CIA’s rebuttal should be made public with appropriate redactions so the American public can reach their own conclusions about the conduct of this program.

Torture is wrong, and we must make sure that the misconduct and the grave errors made in the CIA’s detention and interrogation program never happen again. [my emphasis]

Two of the last weathervanes of right-centrism have deemed it acceptable to use the word “torture” to describe what the CIA did, a word most of the nation’s press still refuses to use for fear it will affect their claim to objectivity.

If Susan Collins can use the word torture, then can the other institutions that aspire to be such measures of centrism also do so?