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The Problems with Richard Burr’s Claim that SSCI Has No Evidence of Collusion

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Fresh off a really testy statement suggesting that he is one of just two acceptable gatekeepers on the question of whether Trump conspired with Russia, Richard Burr made some comments to the AP over the weekend suggesting his committee had not received any evidence of a conspiracy between Trump and Russia.

Burr said there is “no factual evidence today that we’ve received” on collusion or conspiracy between Russia and President Donald Trump’s campaign.

It’s a squishy statement that seems designed — particularly given Burr’s newfound lassitude about ending the inquiry and his stated worries of being accused of missing something in the future — to permit him to sustain a claim he hasn’t seen any conspiracy, at least through the election, without aggressively investigating for one.

“Nothing in this town stays classified or secret forever,” Burr said. “And at some point somebody’s going to go back and do a review. And I’d love not to be the one that chaired the committee when somebody says, ‘well, boy, you missed this.’ So we’ve tried to be pretty thorough in how we’ve done it.”

[snip]

Still, he says he doesn’t think the committee should rush to wrap up the work, saying “the worst thing we can do is to prematurely try to end” the probe.

Indeed, the rest of this article lays out plenty of evidence that Burr is not looking for evidence of a conspiracy. First, there’s the description of what his committee has been working on most recently:

For now, Burr says, the committee is preparing to put out two reports by the end of September: one on the Obama administration’s response to Russia’s election interference, and a second on Russia’s election meddling on social media. The committee is also expected to hold a hearing with Facebook COO Sheryl Sandberg and Twitter CEO Jack Dorsey in the first week of September.

Along with prior work and that laid out in that prior work, then, the Burr interview reveals that SSCI has been focused on:

  • A review of the January 2017 Intelligence Community Assessment
  • A report on election security vulnerability that barely mentions election vendor security
  • The planned report on Obama’s response to the Russian attack
  • The planned (and laudable) report on disinformation on social media
  • Per a bullet in the ICA report, “the contents of the [Steele dossier and its] handling by the United States Government “

These are all worthwhile topics (if you ignore the absence of a focus on vendors in the election security report). They’re just tangential to any question of conspiracy between Trump and Russia.

And on the one area where Burr does mention that conspiracy, he makes it clear he’s not going to work too hard to find out the truth.

“If the intent is to have a show trial, I’m not a participant,” Burr says on public hearings. He says “I don’t see a reason today” to bring back Donald Trump Jr., the president’s son, who participated in a meeting with a Russian lawyer at Trump Tower during the election.

At least at the House Intelligence Committee interview Don Jr had in December, the President’s son professed to not recall whether a call to a blocked number looped in his father on discussions about the June 9 meeting. And Mark Warner has made it clear that the committee did not ask Don Jr about a later meeting where  he proved willing to accept election assistance from foreign entities. Don Jr’s SJC testimony on that point is, by all appearances, a false statement to Congress. So the public record, at least, suggests that no committee has worked through the holes in Don Jr’s story — even ignoring some of the other questions remaining in the public record. Yet Burr likens chasing down those details to “a show trial.”

So, even with what’s in the public record, there’s significant reason to question whether Burr’s claim that “no factual evidence today that we’ve received” shows a conspiracy between Trump and Russia reflects any real effort to find out if there was one.

Plus, the article makes it clear that Burr doesn’t just demand that witnesses to the committee, but even other Senators, remain utterly silent about what the committee has been doing.

Sen. Jim Lankford of Oklahoma, who sits on the intelligence panel and is close to Burr, says Burr started every meeting at the beginning of the probe by asking senators not to talk to the media “until we get additional facts and we put things out together.”

While I greatly appreciate the need to keep the substance of some things the committee is doing a secret (indeed, I find that the committee doesn’t leak like a sieve refreshing), Burr’s public refusal to chase down the Don Jr story and his unwillingness to allow any public comment about what the committee is doing raise real questions about whether the committee would chase down evidence that would support a conspiracy case — even formerly public information still accessible to Congress, much less records requiring more of an effort to obtain — that might prove the same. Burr might worry just as much about someone, in the future, pointing to proof the committee chose not to chase down leads about a Trump-Russian conspiracy as his stated concern about someone pointing to something the committee missed.

“I know that from a committee’s integrity standpoint we’ve got to prove what we find. And if you can’t prove it then we can’t make the claim,” Burr said in the interview. But if his committee is not trying to prove that a conspiracy with Russia exists, then he should stop claiming that the committee has received no factual evidence that such a conspiracy exists. He would simply be unqualified to make the claim one way or another, and so should stop suggesting he would know if there were a conspiracy.

This is why I complained — before Burr made these comments — about his problematic epistemology, his insistence that he is one of just two gate-keepers on a claim about whether or not there has been collusion. Even the public record suggests no one in the committee can make such a claim.

As I disclosed last month, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The Gizmo™: Correlation Doesn’t Equal Adversary Nation

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For days, reporters have been mis-using The Gizmo™ (the name I use for the “disinformation dashboard” from the German Marshall Fund, a black box that purports to show “Russian propaganda efforts on Twitter in near-real time”) to claim that Russian-linked accounts are pushing the #ReleaseTheMemo campaign calling for the public release of Devin Nunes’ politicized memo attacking the FBI.

As the effort lead by some Republicans to curtail special counsel Robert S. Mueller III’s investigation into the election meddling has heated up, Russian-linked accounts helped amplify a Twitter hashtag calling for the release of a memo the group hopes will help discredit Mueller’s work, according to Hamilton 68, a research firm that tracks the malicious accounts. The #releasethememo hashtag was tweeted by these accounts nearly 4,000 times in the last couple of days, the firm said.

As always with such reporting, the articles don’t provide even the nuance the project’s most responsible contributor, JM Berger, lays out on their methodology page.

  1. Not all content in this network is “created” by Russia. A significant amount—probably a majority—of content is created by third parties and then amplified by the network because it is relevant to Russian messaging themes.
  2. Not all content amplified by this network is pro-Russian. The network frequently mobilizes to criticize or attack individuals or news reports that it wishes to discredit.
  3. Because of the two points above, we emphasize it is NOT CORRECT to describe sites linked by this network as Russian propaganda sites. We are not claiming that content producers linked by this network are Russian propaganda sites. Rather, content linked by this network is RELEVANT to Russian messaging themes.

Such reports certainly don’t consider the validity of drawing conclusions from such analysis that the authors have refused to have vetted by a third party. What does it mean to openly profess to be pro-Russian, for example? Do non-consensus views on Syria or Ukraine count? Does skepticism about Russian involvement in the election count?

And the reports don’t note the serial false positives, such as the time Jim Lankford used The Gizmo™ to claim Russia was stoking tensions around NFL players taking a knee during the anthem. More responsible analysis showed that,

[B]oth #TakeAKnee and #BoycottNFL were genuinely viral movements, generating high volumes of traffic from large numbers of accounts, but both received an additional boost from bots.

The bots which amplified #TakeAKnee were primarily non-political; they appear to be bots for hire, repurposed to amplify specific posts. Of these, the most significant group is that which retweeted @DianneLogic, given its previous use in online harassment campaigns in the context of Russia and the far right. However, the evidence of its prior behavior is suggestive but not conclusive. It cannot be taken as proving Senator Lankford’s claim.

The accounts which amplifed #BoycottNFL are a different breed. They are largely cyborgs, rather than bots, posting authored content in between slews of retweets. They are also political, rather than commercial. Their sole purpose appears to be boosting far-right American posts.

In both cases, the bots were functionally anonymous, providing no verifiable information on the identity of the user behind them. There is thus no independent information which would allow us to say definitively whether they were American, linked somehow to Russia, or managed from another country entirely.

In short, in spite of this thing being shown to measure something entirely different from what reporters continue to report — correlated traffic (and that, based on unpublished criteria) rather than causal traffic — nevertheless Russia got credit for a campaign clearly driven by right wing Americans backed by a far more extensive propaganda infrastructure.

And then, even as Twitter started leaking initial analysis saying just that — that Russia wasn’t to blame …

[A] knowledgeable source says that Twitter’s internal analysis has thus far found that authentic American accounts, and not Russian imposters or automated bots, are driving #ReleaseTheMemo. There are no preliminary indications that the Twitter activity either driving the hashtag or engaging with it is either predominantly Russian.

In short, according to this source, who would not speak to The Daily Beast for attribution, the retweets are coming from inside the country.

… Two members of Congress from California, Adam Schiff and Dianne Feinstein, called on two California companies, Twitter and Facebook, to confess further manipulation by Russia.

We understand Facebook and Twitter have developed significant expertise in identifying inauthentic and malicious accounts.  Further, your forensic investigations into Russian government exploitation of your platforms during the 2016 U.S. election have helped expose to the American public the vast extent of Russia’s covert influence efforts. We therefore request that your companies conduct an in-depth forensic examination of this real-time activity on your platforms to determine:

  1. Whether and how many accounts linked to Russian influence operations are involved in this campaign;
  2. The frequency and volume of their postings on this topic; and
  3. How many legitimate Twitter and Facebook account holders have been exposed to this campaign.

Given the urgency of this matter, we ask that you provide a public report to Congress and the American public by January 26, 2018.  In addition, we urge your companies to immediately take necessary steps to expose and deactivate accounts involved in this influence operation that violate your respective user policies.

Nothing in this letter explains why Facebook should have to do this work, as The Gizmo™, the sole piece of evidence Schiff and Feinstein rely on, doesn’t track Facebook.

But even the demand to Twitter was based on yet another misreading of what The Gizmo™ actually measures. And, having never asked The Gizmo™ to explain the methodology behind its serial panics, a Senator representing both Facebook and Twitter demanded that they check its work, rather than vice versa.

If I were a forewoman in a Russian troll factory, there would be no easier way to boost my career prospects than to use a few of my bots to manipulate The Gizmo™’s sloppy methodology to claim credit for an obviously American-generated hoax. “Ивана! Давайте претендовать на последнюю республиканскую пропаганду!” Doing so would set off a self-fulfilling prophecy, precisely the kind of thing The Gizmo™’s authors claim to want to prevent, boosting Russia’s ability to sow discord with virtually no effort.

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.