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

Jack Goldsmith and Susan Hennessey Run Cover for Those Giving Jeff Sessions Unreviewable Authority to Criminalize Dissent

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I’m used to Susan Hennessey partnering with Ben Wittes to write apologies for NSA and FBI that ignore known facts. I’m a bit surprised that Jack Goldsmith did so in this defense of Democrats — like Adam Schiff and Nancy Pelosi and nineteen Democratic Senators — who have voted to give Jeff Sessions unreviewable authority to criminalize dissent using certain privacy tools.

NSA did not fix “abouts” problems before the issues became public

There are numerous problems with this post. The one that irks me the most, however, is the claim that the “system itself” identified and addressed problems with “abouts” collection before they became public.

We acknowledge that the program has raised hard legal questions as well as difficult compliance issues, primarily involving “abouts” collection. But these problems were identified by the system itself, long before the issues became public, and the practices were fixed or terminated.

This claim, one I’ve corrected Hennessey for on numerous occasions on Twitter, is false, and should be retracted.

I say that with great confidence, because I wrote about the problems on August 11, 2016, well before NSA failed to disclose the full extent of the problems in an October 4, 2016 hearing, which led the worst FISC judge ever, Rosemary Collyer, to complain about NSA’s institutional “lack of candor.”

At the October 26, 2016 hearing, the Court ascribed the government’s failure to disclose those IG and OCO reviews at the October 4, 2016 hearing to an institutional “lack of candor” on NSA’s part and emphasized that “this is a very serious Fourth Amendment issue.”

As a reminder, the problem (the FISC has) with “abouts” collection is not so much that it collected entirely domestic communications — that’s the complaint of the rest of us. It’s that NSA never ever complied with John Bates’ 2011 requirement that NSA not conduct back door searches on upstream collection, because it might result in searches of those entirely domestic communications. In my August 2016 post, I noted that reviewers kept discovering that NSA continued to do back door searches on upstream data in violation of that prohibition, and kept refusing to implement technical fixes to avoid them.

I also raised concerns about the oversight of 704/705(b), which is how the NSA first realized how badly non-compliant their upstream searches were, on May 13, 2016, That’s about when NSA first reported to DOJ “in May and June 2016” that “approximately eighty-five percent of” queries using a tool the NSA employs with 704/705b queries “were not compliant with the applicable minimization procedures.”

I’ll grant that I’m remarkably attentive to documents that get declassified years after the fact. But I’m nevertheless “the public.” If I’m identifying these problems — and NSA’s refusal to make the technical fixes to avoid them — before they get fully briefed to DOJ or FISC, then it is absolutely false to claim that “the system” fixed or terminated the problem long before they became public.

Again, Lawfare should issue a retraction for that claim.

Update, January 19: On Twitter yesterday, Hennessey claimed I misread this quote, and that her proof that the system works was that the NSA had gotten away with ignoring Bates’ orders for five years, but finally shut it down before the public learned that NSA had been ignoring FISC’s orders.

This is still factually false — as I responded to her, the NSA was still identifying problems for eight months after I wrote about the problems, even assuming it had found all of them by April 2017, which was the last declassified reporting on it. But her explanation actually makes the comment downright damning for the NSA. It suggests a lawyer who was at NSA during the period it was not in compliance believes that getting away with violating the Fourth Amendment for five years, but fixing it before documents released on a three year delay (and only because of Snowden) is a sign of a law-abiding agency.

A portrait of a guy who doesn’t know key details as a rigorous overseer

The fact that I was harping on the “abouts” problems before any overseers of the program managed to fully investigate and fix them by itself disproves the claims that Hennessey and Goldsmith make in their hagiography of Adam Schiff.

He is the ranking Democrat on the House intelligence committee and one of the most knowledgeable and informed members of Congress on intelligence matters. Schiff has not hesitated to be  when he sees fit. He has watched the 702 program up close over many years in classified settings in his oversight role. He knows well its virtues and its warts. We suppose it is possible that Schiff would vote to give the president, whose integrity he so obviously worries about, vast powers to spy on Americans in an abusive way. Given everything Schiff has publicly said and done over the last year, however, a much more plausible inference is that he knows not only how valuable the 702 program is but also how law-constrained and carefully controlled and monitored it is.

Plus, I’m not sure why they think that Schiff’s attempt to fix the Section 215 phone dragnet only after Edward Snowden made it public proves that Schiff “never hesitated to be critical of intelligence community practices.” On the contrary, it proves that he did hesitate to do so before excessive programs became public.

The distinction is utterly critical given something I’ve pointed out about this bill. The bill itself is an admission that the intelligence community is out of control, and that congressional overseers can’t get information they need to adequately oversee the program without demanding it in legislation. That’s because it requires the IC to provide information on two practices that Congress cannot be deemed competent to legislate on without having answers about first.

For example, the bill requires an IG Report on how FBI queries raw data.

(b) MATTERS INCLUDED.—The report under subsection (a) shall include, at a minimum, an assessment of the following:

(1) The interpretations by the Federal Bureau of Investigation and the National Security Division of the Department of Justice, respectively, relating to the querying procedures adopted under subsection (f) of section 702 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a(f)), as added by section 101.

[snip]

(6) The scope of access by the criminal division of the Federal Bureau of Investigation to information obtained pursuant to the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), including with respect to information acquired under subsection (a) of such section 702 based on queries conducted by the criminal division.

(7) The frequency and nature of the reviews conducted by the National Security Division of the Department of Justice and the Office of the Director of National Intelligence relating to the compliance by the Federal Bureau of Investigation with such querying procedures.

I have explained (and I know Hennessey regards this as a problem too) that since 2012, FBI has devolved its access to raw 702 data to field offices. The FBI already conducted far, far less oversight of the back door searches it conducts than NSA does. But because the DOJ/DNI 702 review teams visit only a fraction of the FBI field offices with each review, and because FBI’s querying system doesn’t collect enough information to do oversight remotely, it is possible that the offices that are least familiar with 702 requirements are — for the smaller number of 702 queries they conduct — getting the least oversight.

You can’t pass a bill that effectively blesses FBI’s use of back door searches on Americans about whom it has no evidence of any wrongdoing, while admitting you don’t know how FBI conducts those back door searches, and make any claim to conduct adequate oversight. Rather, the bill permits FBI to continue practices it has stubbornly refused to brief Congress on, rather than demanding that FBI brief Congress first, so Congress can impose any restrictions that might be necessary to adequately protect Americans.

The bill also requires a briefing within six months to explain how DOJ complies with FISA’s legally mandated notice requirements (because notice under 702 is treated as notice under 106(c), this covers 702 surveillance as well).

Not later than 180 days after the date of the enactment of this Act, the Attorney General, in consultation with the Director of National Intelligence, shall provide to the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives and the Committee on the Judiciary and the Select 10 Committee on Intelligence of the Senate a briefing with respect to how the Department of Justice interprets the requirements under sections 106(c), 305(d), and 405(c) of the Foreign Intelligence Surveillance Act of 1978 (50 14 U.S.C. 1806(c), 1825(d), and 1845(c)) to notify an aggrieved person under such sections of the use of information obtained or derived from electronic surveillance, physical search, or the use of a pen register or trap and trace device. The briefing shall focus on how the Department interprets the phrase ‘‘obtained or derived from’’ in such sections.

The public treatment of DOJ’s serial, obvious failures to give notice to defendants is a nifty trick. When DOJ fails to give notice, it clearly violates the law, but notice is not included in minimization procedure review, so therefore is not reviewed by the FISC. When surveillance boosters like Hennessey and Goldsmith say there have never been any willful violations of the law, they manage to ignore the notice violations that have allowed some pretty problematic practices to avoid judicial oversight only because by breaking the law DOJ ensures no court will find them to be breaking the law.

Catch 22: Heads legal violations never get reviewed by a court, tails surveillance boosters can claim the surveillance has a clean bill of health.

Again, this is a known, egregious problem with the implementation of 702.

But rather than do the obvious thing as part of what this post dubs “robust democratic deliberation,” which is to demand answers about how notice is (not) given and require DOJ to fix it as part of the bill, the bill instead simply requires DOJ to provide the information that Congress needs to do basic oversight six months after reauthorization, which effectively punts fixing the problem six years down the road.

How many Chinese-American scientists will be improperly prosecuted because FBI is technically inane in those 6 years, because a bunch of California legislators like Nancy Pelosi, Adam Schiff, and Dianne Feinstein chose to punt on basic oversight?

The most egregious example of this, however, involves the government’s obstinate refusal to explain how many US persons are affected by 702. This bill also did not incorporate an HJC proposal requiring a count of how many Americans got referred for criminal prosecution off of 702 collection.

Letting Jeff Sessions criminalize dissent

That refusal — the refusal to even legislatively require the government to report on the impact of 702 surveillance on Americans, via incidental collection and/or criminal referral — brings us to the problem with this bill that opponents are all raising, but about which Hennessey and Goldsmith are inexcusably silent: the codification of giving Jeff Sessions unreviewable authority to determine what counts as a “criminal proceeding [that] affects, involves, or is related to the national security of the United States.”

Here’s how Hennessey and Goldsmith describe the impact of this program on Americans.

As Lawfare readers know, Section 702 authorizes the intelligence community to target the communications of non-U.S. persons located outside the United States for foreign intelligence purposes. It does not permit the intelligence community to target a U.S. person anywhere in the world. But it does permit incidental collection on U.S. persons, subject to strict rules about minimization and use.

Their silence about how the bill doesn’t deal with back door searches is problematic enough.

But they predictably, but problematically, make no mention of the way the bill codifies the use of 702 in domestic law enforcement under the Tor/VPN exception.

As I have laid out, in 2014 FISC created an exception to the rule that NSA must detask from a facility as soon as they learn that Americans are also using that facility. That exception applies to Tor and (though I understand this part even less) VPN servers — basically the kinds of privacy tools that criminals, spies, journalists, and dissidents might use to hide their online activities. NSA has to sort through what they collect on the back end, but along the way, they get to decide to keep any entirely domestic traffic they find has significant foreign intelligence purpose or is evidence of a crime, among other reasons. The bill even codifies 8 enumerated crimes under which they can keep such data. Some of those crimes — child porn and murder — make sense, but others — like transnational crime (including local drug dealers selling imported drugs) and CFAA (with its well-known propensity for abuse) pose more potential for abuse.

But it’s the unreviewable authority for Jeff Sessions bit that is the real problem.

We know, for example, that painting Black Lives Matter as a national security threat is key to the Trump-Sessions effort to criminalize race. We also know that Trump has accused his opponents of treason, all for making critical comments about Trump.

This bill gives Sessions unreviewable authority to decide that a BLM protest organized using or whistleblowing relying on Tor, discovered by collection done in the name of hunting Russian spies, can be referred for prosecution. The fact that the underlying data predicating any prosecution was obtained without a warrant under 702 would — in part because this bill doesn’t add teeth to FISA notice — ensure that courts would never learn the genesis of the prosecution. Even if a court somehow managed to do so, however, it could never deem the domestic surveillance unlawful because the bill gives Jeff Sessions the unreviewable authority to treat dissent as a national security threat.

This is such an obviously bad idea, and it is being supported by people who talk incessantly about the threat that Trump and Sessions present. Yet, rather than addressing the issue head on (which I doubt Hennessey could legally do in any case), they simply remain silent about what is the biggest complaint from privacy activists, that this gives a racist, vindictive Attorney General far more authority than he should have, and does so without fixing the inadequate protections for criminal defendants along the way.

I mean, I get that surveillance boosters who recognize the threat Trump and Sessions pose want to absolve themselves for giving Trump tools that can so obviously be abused.

But this attempt does so precisely by dodging the most obvious reasons for which boosters should be held to account.

Update: Changed post to note that just Trump has accused FBI Agents of treason, not Sessions, and not (yet) journalists.

Update: Here’s the roll call of the 65-34 vote passage of the bill. Democrats who voted in favor are:

  1. Carper
  2. Casey
  3. Cortez Masto
  4. Donnelly
  5. Duckworth
  6. Feinstein
  7. Hassan
  8. Heitkamp
  9. Jones
  10. Klobuchar
  11. Manchin
  12. McCaskill
  13. Nelson
  14. Peters
  15. Reed
  16. Schumer
  17. Shaheen
  18. Stabenow
  19. Warner
  20. Whitehouse

 

The 702 Capitulations: a Real Measure of the “Deep State”

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There were two details of the Section 702 reauthorization in the House that deserve more attention, as the Senate prepares for a cloture vote today at 5:30.

First, in the Rules Committee hearing for the bill, Ranking House Judiciary Committee member Jerry Nadler revealed that the FBI stopped engaging with his staffers when the two sides reached a point on negotiations over the bill beyond which they refused to budge.

Effectively, FBI just used the dual HJC/House Intelligence jurisdiction over FISA to avoid engaging in the legislative process, to avoid making any concessions to representatives supposedly overseeing this program.

As a result, the final bill included only a sham warrant requirement — one that will give criminal suspects more protection against warrantless search than it gives people against whom the FBI has no suspicion — and provided an easy way for the NSA to turn “about” collection (which has been the source of repeated NSA violations of FISA over the years) back on.

Then there was the effort Nancy Pelosi made to use the President’s reactive FISA tweet to impose a few more limits on the warrant requirement. In a filibustering speech, she suggested that Trump’s tweet claiming his had been surveilled and abused under the law (in reality, Title I warrants were used during the campaign, but Section 702 has likely been part of the investigation as well) necessitated a motion to recommit instructing HPSCI to boost the protections for Americans.

Pelosi had to have know the motion would fail (it did, with just six of the most libertarian Republicans joining Democrats in support). She counts votes better than anyone.

What the vote was really about was an effort not to fix the real problems with the bill. Nor was it a meaningful effort to add anything but illusory protections to the bill. It was an effort to make a vote in support of the bill more politically palatable. Pelosi (and Adam Schiff, who worked closely with Pelosi on this front) appears to have known that there will be political costs for supporting this bill, perhaps especially in San Francisco where one-fifth of Pelosi’s constituents are Chinese-American, one of the groups most disproportionately affected by the spying program.

She knew she was going to have to vote for the bill, political cost and all, and was trying to use Trump’s tweet to minimize the costs of doing so.

These two events, in my opinion, show how dysfunctional legislation affecting the “Deep State,” the entrenched national security bureaucracy, is. There is a clear political recognition among the Democratic leaders cooperating in passing the bill that the bill goes too far. Probably, they worry about what will happen when we learn how Jeff Sessions will use the unreviewable authority to deem either warrantless back door searches for Americans’ names or retention of Tor and VPN domestic collection a “national security” issue to target Democratic constituencies.

But that recognition was not enough to muster the political will to oppose the bill.

Heads the “Deep State” wins, tails democratic oversight fails.

Did The Most Senior White House Official Lie to the NYT about the Content of the Comey Firing Letter?

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One week after conducting a “surprise” interview set up by Trump ally Christopher Ruddy (for which he was widely criticized), Mike Schmidt has a widely hailed story describing the evidence supporting an obstruction charges against Donald Trump.

Or maybe against Attorney General Jeff Sessions.

Most interestingly, it suggests that several days after Trump attacked Jeff Sessions while watching Jim Comey’s May 3 testimony to Congress, Sessions sent an aide to Congress to try to gin up a series of damning stories about Comey.

White House aides gave updates to Mr. Trump throughout, informing him of Mr. Comey’s refusal to publicly clear him. Mr. Trump unloaded on Mr. Sessions, who was at the White House that day. He criticized him for recusing himself from the Russia investigation, questioned his loyalty, and said he wanted to get rid of Mr. Comey.

[snip]

Two days after Mr. Comey’s testimony, an aide to Mr. Sessions approached a Capitol Hill staff member asking whether the staffer had any derogatory information about the F.B.I. director. The attorney general wanted one negative article a day in the news media about Mr. Comey, according to a person with knowledge of the meeting.

A Justice Department spokeswoman said the incident did not occur. “This did not happen and would not happen,” said the spokeswoman, Sarah Isgur Flores. “Plain and simple.”

Hmmm. I don’t think Sessions has honored his recusal.

He may have also ordered up Rod Rosenstein to suggest Comey needed firing.

Earlier that day, Rod J. Rosenstein, the deputy attorney general, had pulled one of Mr. McGahn’s deputies aside after a meeting at the Justice Department. Mr. Rosenstein told the aide that top White House and Justice Department lawyers needed to discuss Mr. Comey’s future. It is unclear whether this conversation was related to the effort to dig up dirt on Mr. Comey.

The following weekend, Trump went to Bedminster to have Stephen Miller write up a letter firing Comey. It’s this detail I’m most interested in.

In interviews with The Times, White House officials have said the letter contained no references to Russia or the F.B.I.’s investigation. According to two people who have read it, however, the letter’s first sentence said the Russia investigation had been “fabricated and politically motivated.” [my emphasis]

Remember, Schmidt has just had a rather celebrated interview with one particular White House official. Er, The White House Official. Half of the off-the-record comments omitted from the NYT transcript of the interview clearly pertain to the Russian investigation.

TRUMP: Everybody knows the answer already. There was no collusion. None whatsoever.

_________

TRUMP: Maybe I’ll just say a little bit of a [inaudible]. I’ve always found Paul Manafort to be a very nice man. And I found him to be an honorable person. Paul only worked for me for a few months. Paul worked for Ronald Reagan. His firm worked for John McCain, worked for Bob Dole, worked for many Republicans for far longer than he worked for me. And you’re talking about what Paul was many years ago before I ever heard of him. He worked for me for — what was it, three and a half months?

[snip]

TRUMP: What I’ve done is, I have absolute right to do what I want to do with the Justice Department. But for purposes of hopefully thinking I’m going to be treated fairly, I’ve stayed uninvolved with this particular matter.

_________

TRUMP: For purposes of the Justice Department, I watched Alan Dershowitz the other day, who by the way, says I, says this is a ridiculous —

SCHMIDT: He’s been very good to you.

TRUMP: He’s been amazing. And he’s a liberal Democrat. I don’t know him. He’s a liberal Democrat. I watched Alan Dershowitz the other day, he said, No. 1, there is no collusion, No. 2, collusion is not a crime, but even if it was a crime, there was no collusion. And he said that very strongly. He said there was no collusion. And he has studied this thing very closely. I’ve seen him a number of times. There is no collusion, and even if there was, it’s not a crime. But there’s no collusion. I don’t even say [inaudible]. I don’t even go that far.

_________

TRUMP: So for the purposes of what’s going on with this phony Russian deal, which, by the way, you’ve heard me say it, is only an excuse for losing an election that they should have won, because it’s very hard for a Republican to win the Electoral College. O.K.?

This last break in the transcript picks up right where the information these White House officials lying to the NYT leave off: with the claim that this is a “fabricated and politically motivated” investigation.

Particularly given that Schmidt has been working this aspect of the story for months, what are the chances that the most senior White House official lied to Schmidt about what he had written to justify firing Jim Comey?

What Explains Trump’s Focus on Manafort?

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As I noted yesterday on Twitter, the transcript of NYT’s interview with Donald Trump reads like this:

collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion

23 times Trump either denied any evidence of collusion between his campaign and Russia or alleged collusion between Hillary and … I’m not entirely clear who she was supposed to have colluded with.

Whatever else this interview was, it was also a testament to Trump’s continued obsession with trying to deny any guilt.

Which is why I’m so interested in both the form and the singular focus on Trump’s denial of Paul Manafort.

SCHMIDT: What’s your expectation on Mueller? When do you —

TRUMP: I have no expectation. I can only tell you that there is absolutely no collusion. Everybody knows it. And you know who knows it better than anybody? The Democrats. They walk around blinking at each other.

SCHMIDT: But when do you think he’ll be done in regards to you —

TRUMP: I don’t know.

SCHMIDT: But does that bother you?

TRUMP: No, it doesn’t bother me because I hope that he’s going to be fair. I think that he’s going to be fair. And based on that [inaudible]. There’s been no collusion. But I think he’s going to be fair. And if he’s fair — because everybody knows the answer already, Michael. I want you to treat me fairly. O.K.?

SCHMIDT: Believe me. This is —

TRUMP: Everybody knows the answer already. There was no collusion. None whatsoever.

_________

TRUMP: Maybe I’ll just say a little bit of a [inaudible]. I’ve always found Paul Manafort to be a very nice man. And I found him to be an honorable person. Paul only worked for me for a few months. Paul worked for Ronald Reagan. His firm worked for John McCain, worked for Bob Dole, worked for many Republicans for far longer than he worked for me. And you’re talking about what Paul was many years ago before I ever heard of him. He worked for me for — what was it, three and a half months?

SCHMIDT: A very short period of time.

TRUMP: Three and a half months. [Inaudible] So, that’s that. Let’s just say — I think that Bob Mueller will be fair, and everybody knows that there was no collusion.

The interview started with a discussion of Jeff Sessions’ recusal, which led Trump to claim he won because he campaigned better than Hillary, but then Mike Schmidt returned to Russia, which returned Trump to his “no collusion” line.

Then Schmidt permits Trump to go off the record about … something. Then the interview goes back on the record with Trump apparently deciding to offer up details after all. He offers the following defense of Manafort:

  • He’s a nice, honorable man
  • Manafort worked for other Republicans too
  • Manafort didn’t work (on the campaign) for Trump long at all
  • Trump never heard of the man who lived in Trump Tower and had had a firm with Trump’s buddy Roger Stone

Having already had two people flip on him and agree to cooperate with prosecutors, Trump starts by flattering Manafort. He rightly reminds that Manafort has long been tolerated in the Republican party, even after Manafort’s fondness for working with thugs became widely known.

Trump then dismisses any Manafort taint based on time associated with the campaign (three and a half key months of the campaign, during the period when Russians were reaching out to provide dirt), not based on his actions for the campaign.

Finally, by falsely claiming he didn’t know Manafort, Trump absolves himself of any prior taint the lobbyist had.

As I said, I’m interested in this passage not just for Trump’s lame attempt at defending himself, but also that he did so. It’s only Manafort Trump feels the need to defend himself against, not Flynn (whom Trump reportedly is preparing to accuse of lying), not Papadopoulos, and not even Rick Gates (who, after all, hung around the campaign through the transition).

The Daily Beast did do an uninteresting piece suggesting Mueller’s team may get a superseding indictment against Manafort, but it doesn’t even imagine Mueller getting to the guts of the case, perhaps by indicting Manafort based on his ongoing reporting on the campaign to Oleg Deripaska via Konstantin Kilimnik, the latter of whom also served as a go-between in an effort to help Manafort write a self-defensive op-ed. Instead, it imagines only that Manafort will get a superseding indictment on tax charges.

Alternately, Schmidt may have said something during that off the record section that directly raised Manafort. Schmidt’s regular beat is the FBI, not Mar a Lago, so he may know something far more interesting than the Daily Beast does about where Mueller is going.

Whatever the reason, Trump seems far more worried about damage Manafort can do to him right now than any damage Flynn can.

Congress Should Revert to Section 702 as Passed in 2008, If That’s What the Spooks Want!

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Congress is passing a continuing resolution with an extension of Section 702 today, giving Congress one month to figure out how it will reauthorize the surveillance program.

But the Intelligence Community is making one more bid to talk Congress into passing some bill today. The same Intelligence Community that has opposed bills that offer even lip service reforms — most notably the House Judiciary Committee bill — insist that anything else than a new authorization will make the country less safe.

Reauthorizing Section 702 before it expires is vital to keeping the nation safe. Let us be clear: if Congress fails to act, vital intelligence collection on international terrorists and other foreign adversaries will be lost. The country will be less secure.

And (again, from an IC that has refused to engage with the HJC bill) the IC wants its reauthorization now, without the short term extension, because short term extension don’t provide certainty.

We also believe it is important that Congress reauthorize Section 702 before it expires on December 31, 2017.  Although the current Section 702 certifications do not expire until April 2018, the Intelligence Community would need to start winding down its Section 702 program well in advance of that date.  Winding down such a valuable program would force agencies to divert resources away from addressing foreign threats. Short-term extensions are not the long-term answer either, as they fail to provide certainty, and will create needless and wasteful operational complications. We urge Congress, therefore, to act quickly to reauthorize Section 702 in a manner that preserves the effectiveness of this critical national security law before it expires.

Where the release gets truly inexcusable, however, is how they flip their demand that this reauthorization codify certain dubious practices and not limit other ones. Congress is not required to make changes, the spooks say, without telling you that even the SSCI bill makes at least one reform, and most of the bills on the floor today make more serious ones. Those are the bills the IC prevented from passing.

To be clear – Congress is not required to make any changes to Section 702. The Intelligence Community conducts and uses 702 collection in a manner that protects the privacy and civil liberties of individuals.

The spooks pretend, as they have before, that the Ninth Circuit approved back door searches, which it didn’t.

Every single court that has reviewed Section 702 and queries of its data has found it to be constitutional.

They then take their emphasis on the word targeting a step further than normal to avoid telling you that their “targeted surveillance” of location-obscuring servers like Tor and VPNs actually collects on US persons, and the “oversight’ of that collection allows entirely domestic communications collected via such “targeted” collection to be used in criminal cases.

The Intelligence Community’s use of Section 702, which permits targeted surveillance only of foreign persons located outside the United States, is subject to extensive oversight and incorporates substantial protections to protect the privacy and civil liberties of individuals.

Here, the spooks don’t acknowledge how much has changed in between the various passage of these bills.

In short, we believe Congress got it right in 2008 when it passed Section 702 and in 2012 when Congress reauthorized it.

Consider: if the 702 on the table today were 702 as it existed in 2008, Congress would pass it gladly. That’s because no backdoor searches were permitted (though FBI was already doing them), to say nothing of the 2014 exception that permits the collection of US person location-obscured communications. And upstream “about” collection wasn’t affirmatively permitted either.

In other words, if Congress could have Section 702 as it passed in 2008, it’d be a vast improvement from a privacy perspective than the program as it exists right now (and also wouldn’t include a counterproliferation certificate or approval to target cybersecurity targets).

Note, too, the spooks don’t admit that most of Congress didn’t know about backdoor and other kinds of US person searches in 2012.

All that said, even after saying that Congress had it right in 2008, the spooks return to the coded demands that Congress not do a single thing to limit the spying on Americans that has gotten added to the program since 2008.

Nevertheless, the Intelligence Community continues to be open to reasonable reforms to Section 702 to further enhance the already-substantial privacy protections contained in the law, but we simply cannot support legislation that would impede the operational efficacy of this vital authority.

There were many “reasonable reforms to … further enhance the already-substantial privacy protections contained in the law.” Those were the bills the IC refused to let pass, which is why we’re here on one of the last legislative days of the year, punting this legislation for a month.

Trump Transition Team Outraged To Be Treated as Transition Team!!

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This is a general post on the GOP claim Mueller improperly obtained emails from ~13 Transition officials, updated as new news comes available. This post explains what is really going on: the Transition appears to have withheld emails — including the KT McFarland one referring to the election as having been “thrown” — and Mueller obtained proof they were withholding things. 

Both Fox News and Axios have pieces reflecting the outrage!!! among Trump people that they got asked questions about emails they thought they had hidden from Mueller’s investigation. Axios reveals that Mueller obtained the full contents of 12 accounts (Reuters says 13), one including 7,000 emails, from people on the “political leadership” and “foreign-policy team;” it says it includes “sensitive emails of Jared Kushner.”

Fox reveals that a transition lawyer wrote Congress today claiming that it was unlawful for government employees to turn over emails hosted on government servers for a criminal investigation.

A lawyer for the Trump presidential transition team is accusing Special Counsel Robert Mueller’s office of inappropriately obtaining transition documents as part of its Russia probe, including confidential attorney-client communications and privileged communications.

In a letter obtained by Fox News and sent to House and Senate committees on Saturday, the transition team’s attorney alleges “unlawful conduct” by the career staff at the General Services Administration in handing over transition documents to the special counsel’s office.

Officials familiar with the case argue Mueller could have a problem relating to the 4th Amendment – which protects against unreasonable searches and seizures.

Kory Langhofer, the counsel to Trump for America, wrote in the letter that the the GSA “did not own or control the records in question.”

But, Langhofer says, Mueller’s team has “extensively used the materials in question, including portions that are susceptible to claims of privilege.”

And Axios explains that the Trump people actually sorted through this stuff. “The sources say that transition officials assumed that Mueller would come calling, and had sifted through the emails and separated the ones they considered privileged.”

I’m really looking forward to hearing the full story about this, rather than just this partisan spin. For example, I’m interested in whether Mueller realized via some means (perhaps from someone like Reince Priebus or Sean Spicer — update, or George Papadopoulos) that the White House had withheld stuff that was clearly responsive to his requests, so he used that to ask GSA to turn over the full set.

I’m also interested in how they’ll claim any of this was privileged. The top 13 political and foreign policy people on the Trump team might include (asterisks mark people confirmed to be among those whose accounts were obtained):

  1. Pence
  2. Bannon
  3. Jared*
  4. Flynn*
  5. KT McFarland
  6. Spicer
  7. Priebus
  8. Nunes
  9. Sessions
  10. Seb Gorka
  11. Stephen Miller
  12. Hope Hicks
  13. Ivanka
  14. Don Jr
  15. Rebekah Mercer
  16. Kelly Anne Conway
  17. Rudy Giuliani
  18. Steven Mnuchin
  19. Rick Gates
  20. Corey Lewandowski
  21. Tom Bossert

Just one of those people — Sessions — is a practicing lawyer (and he wasn’t, then), and he wasn’t playing a legal role in the transition (though both Sessions and Nunes may have been using their congressional email, in which case Mueller likely would show far more deference; update: I’ve added Rudy 911 to the list, and he’d obviously qualify as a practicing lawyer). Though I suppose they might have been talking with a lawyer. But I would bet Mueller’s legal whiz, Michael Dreeben, would point to the Clinton White House Counsel precedent and say that transition lawyers don’t get privilege.

Furthermore, Trump wasn’t President yet! This has come up repeatedly in congressional hearings. You don’t get privilege until after you’re president, in part to prevent you from doing things like — say — undermining existing foreign policy efforts of the actually still serving President. So even if these people were repeating things Trump said, it wouldn’t be entitled to privilege yet.

Finally, consider that some of these people were testifying to the grand jury months and months ago. But we’re only seeing this complaint today. That’s probably true for two reasons. One, because Mueller used the emails in question (most notably, the emails between McFarland and Flynn from December 29 where they discussed Russian sanctions) to obtain a guilty plea from Flynn. And, second, because Republicans are pushing to get Trump to fire Mueller.

Update: I’ve added Pence, Don Jr., Ivanka, Hope Hicks, Kelly Anne Conway, Rudy Giuliani, Steven Mnuchin back in here.

Update: Here’s more from Reuters.

Langhofer, the Trump transition team lawyer, wrote in his letter that the GSA’s transfer of materials was discovered on Dec. 12 and 13.

The FBI had requested the materials from GSA staff last Aug. 23, asking for copies of the emails, laptops, cell phones and other materials associated with nine members of the Trump transition team response for national security and policy matters, the letter said.

On Aug. 30, the FBI requested the materials of four additional senior members of the Trump transition team, it said.

The GSA transfer may only have been discovered this week (probably as a result of Congress’ investigation). But the witnesses had to have known these emails went beyond the scope of what the transition turned over. And the request date definitely is late enough for Mueller to have discovered not everything got turned over, perhaps even from George Papadopoulos, who flipped in late July.

Update: One more thing. Remember that there were worries that transition officials were copying files out of a SCIF. That, by itself, would create an Insider Threat concern that would merit FBI obtaining these emails directly.

Update: Here’s a report dated June 15 on a transition lawyer instructing aides and volunteers to save anything relating to Russia, Ukraine, or known targets (Flynn, Manafort, Page, Gates, and Stone).

Update: AP reports that Flynn was (unsurprisingly) among those whose email was obtained.

Update: Here’s the letter. I unpacked it here. It’s a load of — I believe this is the technical term — shite. First, it stakes everything on PTT not being an agency. That doesn’t matter at all for a criminal investigation — Robert Mueller was no FOIAing this stuff. It then later invokes a bunch of privileges (the exception is the attorney client one) that only come with the consequent responsibilities. It then complains that Mueller’s team didn’t use a taint team.

Perhaps the craziest thing is they call for a law that would only permit someone to access such emails for a national security purpose — as if an espionage related investigation isn’t national security purpose!

Update: Chris Geidner got GSA’s side of the story. Turns out they claim the now dead cover up GC didn’t make the agreement the TFA lawyer says he did. In any case, GSA device users agreed their devices could be monitored.

“Beckler never made that commitment,” he said of the claim that any requests for transition records would be routed to the Trump campaign’s counsel.

Specifically, Loewentritt said, “in using our devices,” transition team members were informed that materials “would not be held back in any law enforcement” actions.

Loewentritt read to BuzzFeed News a series of agreements that anyone had to agree to when using GSA materials during the transition, including that there could be monitoring and auditing of devices and that, “Therefore, no expectation of privacy can be assumed.”

Update: Mueller’s spox, Peter Carr, issued a statement saying, “When we have obtained emails in the course of our ongoing criminal investigation, we have secured either the account owner’s consent or appropriate criminal process.”

How Does the Strzok Text Dump Differ from Jim Comey’s July 5, 2016 Speech?

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I’m a bit bemused by the response to DOJ’s release of the texts between Peter Strzok and Lisa Page. As Rod Rosenstein testified before HJC yesterday, the release came after notice to Strzok and Page through their lawyers. The release of the texts came with the approval of DOJ IG Michael Horowitz — who says the investigation into the underlying conduct may last through spring. And Rosenstein strongly implied he wanted them released, taking responsibility for it (while claiming not to know whether Jeff Sessions had a role in their release).

As he explained to Trey Gowdy — who, like a number of Republicans, claimed to be at a loss of what to say to constituents who asked “what in the hell is going on with DOJ and the FBI” — the release of the texts proves that any wrongdoing will be met with consequences.

Gowdy: What happens when people who are supposed to cure the conflict of interest have even greater conflicts of interests than those they replace? That’s not a rhetorical question. Neither you nor I nor anyone else would ever sit Peter Strzok on a jury, we wouldn’t have him objectively dispassionately investigate anything, knowing what we now know. Why didn’t we know it ahead of time, and my last question, my final question — and I appreciate the Chairman’s patience — how would you help me answer that question when I go back to South Carolina this weekend?

Rosenstein: Congressman, first of all, with regard to the Special Counsel, Mr. Strzok was already working on the investigation when the Special Counsel was appointed. The appointment I made was of Robert Mueller. So what I’d recommend you tell your constituents is that Robert Mueller and Rod Rosenstein and Chris Wray are accountable and that we will ensure that no bias is reflected in any actions taken by the Special Counsel or any matter within the jurisdiction of the Department of Justice. When we have evidence of any inappropriate conduct, we’re going to take action on it. And that’s what Mr. Mueller did here as soon as he learned about this issue — he took action — and that’s what I anticipate the rest of our prosecutors, the new group of US Attorneys, our Justice Department appointees. They understand the rules and they understand the responsibility to defend the integrity of the Department. If they find evidence of improper conduct, they’re going to take action.

So Congressman, that’s the best assurance I can give you. But actually, there’s one other point, which is you should tell your constituents that we exposed this issue because we’re ensuring that the Inspector General conducts a thorough and effective investigation, and if there is any evidence of impropriety, he’s going to surface it and report about it publicly.

I actually think Rosenstein did a much better job than others apparently do, yesterday, at distinguishing between the Strzok texts (which apparently were on DOJ issued cell phones and, in spite of having Hillary investigation subject lines may not have been logged into Sentinel) and the political views of Andrew Weissmann or the past representation of Jeannie Rhee. Furthermore, he repeatedly said he would only fire Mueller for cause, and made it clear there had been no cause. Several times he talked about how closely he has worked with Mueller, such as on the scope of what gets included in his investigation (even while defending the charges against Manafort as appropriately included).

That said, I wonder how Rosenstein distinguishes, in his own mind, what he did in approving the release of the texts from an ongoing investigation and what Jim Comey did on July 5, 2016, when he gave a press conference about why Hillary Clinton had not been charged. While Rosenstein’s biggest complaint in his letter supporting the firing of Comey was that he substituted his decision for that of prosecutors, he also argued that the Department shouldn’t release derogatory information gratuitously.

Compounding the error, the Director ignored another longstanding principle: we do not hold press conferences to release derogatory information about the subject of a declined criminal investigation. Derogatory information sometimes is disclosed in the course of criminal investigations and prosecutions, but we never release it gratuitously. The Director laid out his version of the facts for the news media as if it were a closing argument, but without a trial. It is a textbook example of what federal prosecutors and agents are taught not to do.

In response to skeptical question at a congressional hearing, the Director defended his remarks by saying that his “goal was to say what is true. What did we do, what did we find, what do we think about it.” But the goal of a federal criminal investigation is not to announce our thoughts at a press conference. The goal is to determine whether there is sufficient evidence to justify a federal criminal prosecution, then allow a federal prosecutor who exercises authority delegated by the Attorney General to make a prosecutorial decision, and then – if prosecution is warranted – let the judge and jury determine the facts. We sometimes release information about closed investigations in appropriate ways, but the FBI does not do it sua sponte.

In some ways this is worse because of the off chance that Inspector General Michael Horowitz finds that these texts don’t merit some kind of response; the investigation is not finished yet.

That said, I actually do think there’s a difference: Strzok and Page are department employees, rather than subjects of an external investigation. DOJ exercises awesome power, and usually DOJ is releasing the texts of private citizens in this kind of embarrassing way.

Even former clearance holders seem surprised that these texts were discovered. It is unbelievable to me how few people understand the great liberty that counterintelligence investigators like Strzok can have in obtaining the communications of investigative targets like he has now become, particularly during leak or insider threat investigations. That may not be a good thing, but it is what other targets have been subjected to. So I think it reasonable to have FBI’s own subject to the same scrutiny, for better and worse.

I do think it worthwhile for DOJ to show that it will hold people accountable for improper actions.

Plus, aside from one August comment — which we may obtain more context on when Horowitz does finish this investigation — about an “insurance” policy against Trump, the texts simply aren’t that damning (though they do raise questions about Strzok’s role in the investigation). Strzok agrees with Rex Tillerson, after all, that Trump is an idiot.

So as far as that goes, I’m actually okay with Rosenstein’s release of these texts.

Except I worry about something else.

I actually worry less about Mueller getting fired than just about every other Trump opponent on the planet. Rosenstein seems intent to let him do his work, and (notably at several times during the hearing) seems to agree with the gravity of the investigation. Trump can’t get to Mueller without taking out Rosenstein (and Rachel Brand). And I actually think Rosenstein has thus far balanced the position of a Republican protecting a Republican from Republican ire fairly well. I expect the next shoes Mueller drops — whenever that happens — will change the tone dramatically.

What bothers me most about the release of these texts, however, is that they are a response to the same pressure that Comey was responding to (and which he thought he was smart enough to manage, just as Rosenstein surely thinks he can handle it here).

They are a response — from the same people who ran the Benghazi investigation then ignored DOJ’s prosecution of the Benghazi mastermind — to a willingness to challenge the very core of DOJ functionality, all in a bid to politicize it.

Perhaps Rosenstein is right to bide his time — to create space for Mueller to drop the next few shoes — with the release of the Strzok texts.

But at some point, Republicans need to start calling out Republicans for the damage they’re doing to rule of law with this constant playing of the refs, this demand for proof that Democrats aren’t getting some advantage through the rule of law. If those next shoes don’t have the effect I imagine, it may be too late.

Maybe Stephen Miller’s Discussions with George Papadopoulos Are Why Jeff Sessions Can’t Recall Any Email Discussions?

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Over the weekend, the NYT published the best reported piece yet on the George Papadopoulos plea. I’m most intrigued by the description of how a young Russian intern turned Joseph Mifsud into a Russian expert in 2014. But the most important detail in the story is that the loathsome Stephen Miller is the Senior Policy Adviser described in the plea.

The day before he learned about the hacked emails, Mr. Papadopoulos emailed Mr. Miller, then a senior policy adviser to the campaign, saying Mr. Trump had an “open invitation” from Mr. Putin to visit Russia. The day after, he wrote Mr. Miller that he had “some interesting messages coming in from Moscow about a trip when the time is right.”

Those emails were described in court papers unsealed Oct. 30 disclosing that Mr. Papadopoulos had pleaded guilty to lying about his contacts to the F.B.I. But the documents did not identify Mr. Miller by name, citing only a “senior policy adviser.” Neither he nor his lawyer responded on Friday to requests for comment.

During interviews with Mr. Mueller’s investigators, former campaign officials now working at the White House have denied having advance knowledge of the stolen emails, according to an official familiar with those discussions. Mr. Miller was among those recently interviewed.

The NYT hints at what I laid out explicitly: FBI charged Papadopoulos for his lies because they were designed to hide whether he told the campaign about the emails Mifsud told him about. And given the timing, it seems highly likely Papadopoulos’ reference in his April 27 email (the government cites just one line from the email, so it may not be the most exciting detail) to “interesting messages coming in from Moscow,” those interesting messages included discussion about the “dirt” Russia had on Hillary in the form of emails.

That is, it seems highly likely that on April 27 (or whenever Papadopoulos was next in DC), Miller learned that Russia had some kind of emails from Hillary.

Miller, recall, is Jeff Sessions’ close aide, his installment in the Administration. The NYT makes clear that Miller was interviewed by Mueller’s team recently, which means he was one of the people the government planned to interview just after locking in Papadopoulos’ plea.

Which makes this exchange from Jeff Sessions’ most recent congressional appearance, on October 18, all the more interesting. First, Patrick Leahy got the Attorney General to admit that there was a difference between not recalling something and affirmatively denying something. Leahy then pointed out that, once the meetings he had denied were disclosed, Sessions started not recalling certain things about the meetings that he had previous affirmatively denied.

Leahy: Later in March, when you did disclose such meetings, you said you could not recall what was said at the meetings. Your answer to my question was an emphatic no. It wasn’t, “I don’t recall.” You are a lawyer, I am a lawyer. You are, in fact, our nation’s top lawyer. Is there a difference between responding “no” and “I do not recall”?

Sessions: Yes.

Leahy: Thank you.

Sessions: Certainly it is, Senator Leahy.

Leahy: So if you could not recall, then you could not answer have answered my first question, yes or no, if later you said that you don’t recall what was discussed. The reason I ask is that, US intelligence intercepts reported in July that it would appear you did in fact discuss campaign issues with the Russian Ambassador.

Leahy then asked Sessions whether he had, since the election, had conversations with Russian officials about a slew of things, starting with emails. Sessions got even squirrelier than he normally is, and first attempted to answer a question Leahy didn’t ask.

Sessions: I have never had a meeting with any Russian officials to discuss any kind of coordinating campaign efforts.

So then Leahy asked about each item in turn.

Leahy: Let’s take this piece by piece. Did you discuss any of the following: Emails?

Sessions: Repeat the question again about emails.

Leahy: Since the 2016 campaign, have you discussed with any Russian connected official anything about emails?

Sessions: Discuss with them. I don’t recall having done any such thing.

Right after this exchange, Sessions totally balks when Leahy asks him if he has been interviewed or asked for an interview by Mueller, saying he should clear it with the Special Counsel.

Now, there was some imprecision in this questioning. It’s clear that Sessions believed he was answering the question about during the campaign, not since it.

But of the things Leahy asked about — emails, Russian interference, sanctions, or any policies or positions of the Trump campaign or presidency — Sessions ultimately not-recalled in response to just one question: the emails.

Based on the past practice Leahy had just laid out, Sessions claimed to not recall issues that he had actually done. Which would suggest Sessions is worried that there’s evidence he has discussed emails — with someone. It’s just not clear how he interpreted that question.

Luckily, he’s due in the House Judiciary Committee tomorrow, when Democrats can try to get him to recall whether he spoke to his top aide, Stephen Miller, about emails the Russians were promising.

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

HJC’s Manager’s Amendment Blows Open 702 Metadata Queries

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I realized something as I was doing a last minute review comparing the Manager’s Amendment of 702 reauthorization that will be marked up in the House Judiciary Committee with a recent version. Here’s the language the two bills propose for querying of metadata:

Recent Version:

RELEVANCE AND SUPERVISORY APPROVAL TO ACCESS NON-CONTENTS INFORMATION.—Except as provided by subparagraph (D), the information of communications acquired under subsection (a) relating to the dialing, routing, addressing, signaling, or other similar non-contents information may be accessed or disseminated only upon a determination by the Attorney General that

(i) such communications are relevant to an authorized investigation or assessment, provided that such investigation or assessment is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States; and

(ii) any use of such communications pursuant to section 706 will be carried out in accordance with such section.

Manager’s Amendment

(C) RELEVANCE AND SUPERVISORY APPROVAL TO ACCESS NON-CONTENTS INFORMATION.—Except as provided by subparagraph (D), the information of communications acquired under subsection (a) relating to the dialing, routing, addressing, signaling, or other similar non-contents information may be accessed or disseminated only—

(i) with supervisory approval;

(ii) [] if such information is not sought solely on the basis of activities protected by the first amendment to the Constitution of the United States;

(iii) if an order based on probable cause would not be required by law to obtain such information if requested as part of an investigation of a Federal crime; and

(iv) if any use of such communications pursuant to section 706 will be carried out in accordance with such section.

Inventing metadata-plus

I haven’t commented on this at length, but one thing the HJC bill does that the other drafts don’t is to invent a new, undefined category of “metadata plus.” They do so to get around the issue I laid out here: NSA has always treated as metadata stuff that from a packet architecture perspective is actually content. They did so by breaking the law from 2001 to 2004 and again from 2004 to 2009 and almost certainly still from 2010 to 2011. After 2011, they simply shut down the Internet metadata program and swapped it to access of metadata acquired under the name of content from upstream collection.

If HJC were a real legislative body, they’d take this opportunity, having clearly identified the need, to redefine metadata in a way that makes sense in the Internet era.

But they chose not to do that. Instead, they’ve just slapped a “or other similar non-contents information” onto the traditional definition of metadata, without defining it!!, so as to cover the continued access to such non-content information without debating the limits of the new definition.

Swapping AG approval for supervisor approval

That redefinition of metadata happens in both bills. But something new happens in the manager’s amendment. It swaps delegable Attorney General approval for “supervisory” approval. That’s still more than currently happens at FBI but possibly less than what currently happens at NSA. But it will ensure that such queries are common and easy.

Eliminating the tie to any investigation

Then the manager’s amendment eliminates the requirement that such queries are “relevant to” (whatever that means anymore) an authorized investigation. This will open up the data for assessments, meaning the FBI can use the data for far more than just investigating crimes. Again, that matches the status quo for FBI currently (which is effectively mostly what the HJC bill does, all while screaming LIBERTY cynically). But it does mean the FBI can continue to research whether you’ve been talking to foreigners without having any evidence of wrong-doing first.

Permitting the use of location and other enhanced metadata

Here’s the big tell, the addition of this language to the metadata querying language. The government can only do back door metadata searches on US persons  “if an order based on probable cause would not be required by law to obtain such information if requested as part of an investigation of a Federal crime.”

My discussion of metadata-plus, above, is mostly important today for NSA, because it involves NSA’s use of “metadata” obtained from upstream queries. That stuff doesn’t get passed on to FBI and CIA (which like FBI refuses to count its metadata queries) yet, but I guarantee you it soon will.

But remember, FBI (and CIA) are getting raw PRISM information.

And PRISM data includes a lot of “non-content” information that is not DRAS that would be of interest to the FBI, starting with location data (among other things, FBI likes to obtain the location data from your phone that you share with apps like Facebook). This probably also allows FBI to skirt jurisdictions were obtaining content without a warrant would be illegal, given that it came from national collection. In any case, however, most jurisdictions will still give some content with a PRTT, so without probable cause.

Like all the other tweaks, this probably also reflects the status quo — meaning that the FBI is accessing as metadata stuff that is far more intrusive. But by laying out the prohibition in this way, it makes it clear that FBI (and CIA) will be (continuing to) access fairly intrusive metadata-plus collected by cloud providers that wouldn’t have been identified without the use of warrantless surveillance.

Watering the meaningless warrant requirement down still further

I have argued that the warrant requirement in the HJC bill is currently meaningless, because it permits queries for foreign intelligence information and permits the FBI to define foreign intelligence with the next certification (another area where HJC has abdicated its legislative role to the Intelligence Community).

By codifying that FBI can do metadata queries without an open investigation, the government is ensuring that it can continue to access this information at the assessment level, even if they’re not doing so under the guise of national security.

But two other changes in the manager’s amendment water down the meaningless warrant requirement even more.

First, the manager’s amendment eliminates this prohibition on using metadata to prove probable cause.

noncontents information accessed or disseminated pursuant to subparagraph (C) is not the sole basis for such probable cause;

That means the government can access metadata without an open investigation, and then use that metadata as the sole basis to access the content.

But under the manager’s amendment, the FBI can bypass the court altogether if the Attorney General (currently racist Jeff Sessions) reasonably determines the US person is communicating with someone engaged in, or materially supporting, terrorism.

Subject to section 706(a)(2), 25 based on a review described in item (II), the Attorney General reasonably determines that the person identified by the queried term is, or is communicating with—

(aa) a person reasonably believed to be engaged in international terrorism (as defined in section 101(c)) or activities in preparation therefore; or

(bb) a person reasonably believed to be acting for, or in furtherance of, the goals or objectives of an international terrorist or international terrorist organization.

And that review relies on the same metadata-plus.

A review described in this item is a review of information of communications acquired under subsection (a) relating to the dialing, routing, addressing, signaling, or other similar non-contents information,

Again, all of this basically amounts to retaining the status quo (though at a time when Russia may pose a greater threat to the US than the shriveling ISIS, and when gun violence by regular old American whackos is proving far more lethal than that of ISIS, it’s not clear that prioritizing terrorism anymore makes sense).

But it is a testament both to how much the HJC bill is really just window dressing, Potemkin reform cynically called “Liberty,” and hints at how they’re really using metadata-plus.

“The Goals That Are Being Scored” … the Carter Page Saga

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In the middle of the Carter Page testimony to the House Intelligence Committee last week, Adam Schiff tried to get him to answer whether he spoke about buying a stake of Rosneft during his July 2016 trip to Moscow — a key claim from the Steele dossier. Page professed that it might be possible, but he couldn’t remember such a discussion because he was watching Ronaldo on TV at the time.

He may have briefly mentioned it when we were looking up from this Portugal — Ronaldo, whoever the — you know, the goals that are being scored. That may have come up. But I have no definitive recollection of that.

Page comes off, often, as someone utterly clueless about how both the Trump campaign officials and the Russians trying to use him were doing so.

It depends on the definition of meet

That said, the most interesting bits involve the things Page tried to hide or obfuscate, such as his claim he never met Trump even after having been in a lot of meetings with him.

Mr. Rooney: Did you ever meet Mr. Trump?

Mr. Page: I have never met him in my life. I’ve been in a lot of meetings with him, and I’ve learned a lot from him, but never actually met him face-to-face.

He does the same with Arkadiy Dvorkovich, Russia’s Deputy Prime Minister, when Adam Schiff tries to point out that meeting him in July 2016 would amount to meeting a senior official.

Mr. Schiff: And you don’t consider him to be a high-up official or someone in an official capacity?

Mr. Page: I — nothing I — it was — again, I did not meet with him. I greeted him briefly as he was walking off the stage after his speech.

Page even compares these two instances of not-meetings later in his testimony.

[I]t goes back to the point I mentioned with listening to speeches, listening to particularly Arkadiy Dvorkovich’s speech, right. Again, great insights just like I learned great insights — even though I’ve met — I’ve never met Donald J. Trump in my life, I’ve learned a lot from him.

Ultimately, even Trey Gowdy finds this obfuscation around the word “meet” to be too much.

Mr. Gowdy: All right. I’ve written down four different words. I didn’t think I’d ever be going through this with anyone, but we’ve got to, I guess. You seem to draw a distinction between a meeting, a greeting, a conversation, and you hearing a speech.

JD Gordon’s central role

I pointed out last week how JD Gordon was playing the press in the wake of the Papadopoulos plea agreement being unsealed. Page’s testimony may explain why: because Gordon was the key person coordinating Page’s activities.

Page at first tries to hide this, before he admits that JD Gordon was his supervisor on the campaign.

And J.D. Gordon was brought in, and he was sort of the de facto organizers [sic] for our group, although not — there was no official command structure, because, again, it was an informal quasi think tank, if you will.

Page later describes Gordon as the most formal of the foreign policy group.

[T]he thing with J.D. is that — again, we’re an informal group, right. He was probably the most formal. I believe he may have even had — if I’m not mistaken, he may have had a Trump campaign email address. I had spoken with him on that — a few occasions that are — you know, we’d get together for a dinner. I may have sent an email or two to him on that. And again, he never definitively answered one way or another.

And Page seems to have treated his conversations with Gordon with some sensitivity (though there’s any number of reasons why this might be true, including that they were running a cutthroat political campaign). Eric Swalwell walks Page through an email in which he warned Gordon, in advance of a call, that he’d be in the “Third World” Laguardia Sky Club so could only listen, not speak.

Mr. Swalwell: In a May 24th, 2016, email to J.D. Gordon, Bates stamped [redacted], you wrote: “FYI: At the Newark Sky Club, Delta has a private room when you can have a confidential conversation, but, unfortunately, no such luck at Third World LaGuardia. So I’ll mostly be on receive mode, since there are a significant number of people in the lounge.”

Later in testimony, Schiff describes an email Page sent two days later, telling Gordon, “I’m planning to speak alongside the chairman and CEO of Sberbank as we’ll both be giving commencement addresses as Mosscow’s New economic School on July 8” (in fact the meeting never happened; though that may be because Dvorkovich replaced him).

Perhaps most damning of all, when Page “mentioned to [Jeff Sessions] in passing” (yet another exchange that shows Sessions perjured himself before the Senate) that he was about to go to Moscow, Gordon and Papadopoulos were present as well.

Mr. Schiff: Let me take you back to what we were discussing before our break, the meeting you had at the Republican National Headquarters I think is the building you’re referring to, if I understand correctly. What was the nature of the discussions at that meeting with Mr. Sessions, then-Senator Sessions — was J.D. Gordon present?

Mr. Page: I believe he was.

Mr. Schiff: And George Papadopoulos you believe was there?

Mr. Page: I believe, yes, to the best of my recollection.

This puts some of the key players together, discussing how Page’s trip to Moscow might benefit the campaign.

Finally, in spite of his efforts to downplay his exchange with Dvokovich, Page’s letter to Gordon boasting about it was a key focus.

Mr. Schiff: And in that [email], Dr. Page, didn’t you state, on Thursday and Friday, July 7 and 8, 2016: “Campaign Adviser Carter Page” — you’re referring to yourself in the third person — “presented before gatherings at the New Economic Schoo, NES, in Moscow, including their 2006 [sic] commencement ceremony. Russian Deputy Prime Minister and NES Board Member Arkadiy Dvorkovich also spoke before the event. In a private conversation, Dvorkovich expressed strong support for Mr. Trump and a desire to work toward devising better solutions in response to the vast range of current international problems”?

The others

While less substantive than the focus on JD Gordon, it’s clear Democratic members were interested in the roles of others: Corey Lewandowski, who “hired” Page and okayed his trip to Russia, Hope Hicks, who was in the loop, Sam Clovis, who made him sign an NDA and had another meeting with him before he left for Russia, and Michael Cohen, who kept the NDA (and in fact didn’t provide Page his promised copy). Schiff also got the list of those responsible for changing the platform (which I think is overblown) into the record: in addition to Gordon, Joseph Schmitz, Bert Mizusawa, Chuck Kubic, Walid Phares, and Tera Dahl.

But the most interesting exchange came right at the end, when Schiff walked Page through a list of people he might have interacted when. When he asked about Eric Trump, Page admitted to sending his resignation to the son.

Mr. Schiff: Eric Trump.

Mr. Page: I — when I sent in my letter of — saying that I am taking a leave of absence from the campaign, I sent an email to him and a bunch of other individuals. So that was on — late Sunday night, after I sent the letter to James Comey. I sent a copy of that to them.

Mr. Schiff: So you sent a letter to Eric Trump, but you have had no other interaction with him apart from that?

Mr. Page: No. No.

Mueller probably interviewed Page during the Papadopoulos lag

Finally, there is perhaps the most important detail. Page admits he has spoken with the FBI this year 4-5 times (he appears to have been represented by a lawyer earlier this year, but he’s now draining his savings and representing himself). When asked if he has met with Mueller’s investigators, he notes what I did: his October 10 letter sort of pleading the Fifth was addressed, first and foremost, to Robert Mueller, which would put his testimony between the time George Papadopoulos pled guilty to false statements and the time it was unsealed — the time when Mueller was locking in the testimony of everyone implicated by Papadopoulos’ cooperation.

As I noted the other day, in the affidavit the FBI wrote explaining why they wanted to seal any notice of Papadopoulos’ plea deal, they described their plans to get the testimony of the people who had knowledge between Russians and the campaign.

The investigation is ongoing and includes pursuing leads from information provided by and related to the defendant regarding communications he had, inter alia, with certain other individuals associated with the campaign. The government will very shortly seek, among other investigative steps, to interview certain individuals who may have knowledge of contacts between Russian nationals (or Russia-connected foreign nationals) and the campaign, including the contacts between the defendant and foreign nationals set forth in the Statement of Offense incorporated into the defendants plea agreement.

All the people interviewed in what I’ll call the Papadopoulos lag — the time between when he pled guilty and the time they unsealed his plea — likely operated with the false confidence that the Mueller team would not know of conversations among campaign staffers. It appears that Page (like Sam Clovis, and, probably,JD Gordon) was interviewed in that period.