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Jeff Sessions Can’t Remember Whether He Was Involved in Firing All the US Attorneys

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One of the things that came out of Jeff Sessions’ testimony last Thursday was the news — elicited by Richard Blumenthal — that President Trump had personally interviewed candidates for two US Attorney positions, those in SDNY and EDNY, which was taken as a sign Trump wanted to install cronies in the districts that oversee most of his (and his family’s) activities.

But there was a counterpart exchange at the hearing that was, particularly because of Sessions’ inability to answer it, just as stunning.

After Mazie Hirono handed Sessions his ass for attacking a judge in HI for issuing a nationwide injunction, she then asked him who was involved in the decision to fire all the US Attorneys all at once.

Hirono: Who was involved in the decision to dismiss all of the US Attorneys without any warning. And why was it done when it was done?

At first Sessions just filibustered — Clinton Clinton Clinton.

Sessions: [stumped] We had gone for a number of months, about half of the United States Attorneys had already resigned, it’s traditional that they’re replaced by the next Administration, and President [pause] I believe President Clinton did the same, issued a single order, precedent, there’s precedent for it to complete the process of changeover.

So then Hirono asked what I imagine is the point: whether Trump made the decision entirely on his own.

Hirono: So it was totally President Trump who made that decision? You were not involved in that decision?

Sessions: I, I believe the responsibility is the President’s.

Hirono: You were not involved in that decision to fire them all?

But then when she double checks whether that’s true, he realizes he’s about to get his boss in a whole heap of trouble, and — literally mid-question!! — turns to ask a staffer what the correct answer is.

Sessions: Actually, actually, I think the Att —

[Sessions stops mid-sentence to talk to a staffer behind him]

Only after consulting the staffer did Sessions “remember” being involved in the decision.

Sessions: I can’t re — I can’t believe I can’t remember that. But it was an important issue. The President appoints United States Attorneys, and it was appropriate, I thought at that time to make the change.

Hirono: So you were involved?

Sessions: Yes, I was involved.

Thus far, the exchange is remarkable enough.

All the more so when you look back at the reporting from when it occurred, in early March. As NYT reported, it was a surprise to all the US Attorneys asked to leave.

The Trump administration moved on Friday to sweep away most of the remaining vestiges of Obama administration prosecutors at the Justice Department, ordering 46 holdover United States attorneys to tender their resignations immediately — including Preet Bharara, the United States attorney in Manhattan.

The firings were a surprise — especially for Mr. Bharara, who has a reputation for prosecuting public corruption cases and for investigating insider trading. In November, Mr. Bharara met with then President-elect Donald J. Trump at Trump Tower in Manhattan and told reporters afterward that both Mr. Trump and Jeff Sessions, who is now the attorney general, had asked him about staying on, which the prosecutor said he expected to do.

But on Friday, Mr. Bharara was among federal prosecutors who received a call from Dana Boente, the acting deputy attorney general, instructing him to resign, according to a person familiar with the matter.

And it was an apparent reversal from an earlier plan.

The abrupt mass firing appeared to be a change in plans for the administration, according to a statement by Senator Dianne Feinstein of California, the top Democrat on the Senate Judiciary Committee.

“In January, I met with Vice President Pence and White House Counsel Donald McGahn and asked specifically whether all U.S. attorneys would be fired at once,” she said. “Mr. McGahn told me that the transition would be done in an orderly fashion to preserve continuity. Clearly this is not the case. I’m very concerned about the effect of this sudden and unexpected decision on federal law enforcement.”

A statement from DOJ spox Sarah Isgur Flores does attribute the decision to Sessions.

“The Attorney General has now asked the remaining 46 presidentially appointed U.S. Attorneys to tender their resignations in order to ensure a uniform transition.”

But Acting Deputy Attorney General Dana Boente (one of just two to keep his job right away), not Sessions, made the calls to the US Attorneys.

In other words, it seems possible that Sessions really wasn’t involved, but he has to pretend to be, so that the decision to fire (especially) Preet Bharara doesn’t appear to be something Trump did on his own, partly in response to badgering from Sean Hannity.

In other words, this later exchange from the same hearing suggests that Trump first unilaterally fired all the US Attorneys, which even at the time was interpreted as an effort to fire one in particular, and now is exercising more control over his replacement than any President ever has before. Only, Sessions managed to remember being involved just in time to make that clear.

One Thing Not Mentioned in Mueller Requests from the White House: The Putin Phone Call

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Yesterday, three different outlets published versions of the list of stuff Robert Mueller has requested of the White House. The NYT describes Mueller asking for details of the in-person meeting with Russians after Comey’s firing, as well as details of Comey and Flynn’s firing,

Mueller’s office sent a document to the White House that detailed 13 different areas that investigators want more information about. Since then, administration lawyers have been scouring White House emails and asking officials whether they have other documents or notes that may pertain to Mr. Mueller’s requests.

One of the requests is about a meeting Mr. Trump had in May with Russian officials in the Oval Office the day after James B. Comey, the F.B. I director, was fired. That day, Mr. Trump met with the Russian foreign minister, Sergey V. Lavrov, and the Russian ambassador to the United States, Sergey I. Kislyak, along with other Russian officials. The New York Times reported that in the meeting Mr. Trump said that firing Mr. Comey relieved “great pressure” on him.

Mr. Mueller has also requested documents about the circumstances of the firing of Michael T. Flynn, who was Mr. Trump’s first national security adviser. Additionally, the special counsel has asked for documents about how the White House responded to questions from The Times about a June 2016 meeting at Trump Tower. That meeting was set up by Donald Trump Jr., the president’s eldest son, to get derogatory information from Russians about Hillary Clinton.

WaPo adds communications with Paul Manafort to the list and fleshes out the nature of the requests on Flynn and Comey.

Mueller has requested that the White House turn over all internal communications and documents related to the FBI interview of Flynn in January, days after he took office, as well as any document that discusses Flynn’s conversations with then­-Russian Ambassador Sergey Kislyak in December. Mueller has also asked for records about meetings then-Deputy Attorney General Sally Yates held with White House counsel Don McGahn in late January to alert him to Justice Department concerns about Flynn, as well as all documents related to Flynn’s subsequent ouster by the White House.

Regarding Comey, Mueller has asked for all documents related to meetings between Trump and Comey while Comey served at the FBI, records of any discussions regarding Comey’s firing and any documents related to a statement by then-press secretary Sean Spicer made on the night Comey was fired.

Here’s CNN’s mostly derivative version.

There’s one thing that’s not explicitly on this list (though it might be included in the larger request for details on Flynn’s firing): details surrounding the January 28th phone conversation between Trump and Putin, which included a bunch of people who happen to no longer be at the White House.

As a number of Democrats noted in the Sally Yates hearing before Senate Judiciary Committee, the call took place in the immediate wake of Yates’ two conversations with Don McGahn about Flynn’s potential for compromise by the Russians because of his lies about his conversation with Sergey Kislyak.

HIRONO: Others of my colleagues have mentioned, and you yourself, Mr. Clapper, said that RT is a Russian mouthpiece to spread propaganda. And, of course, we know that General Flynn attended a gala hosted by — or a 10th anniversary gala for RT in December, 2015, where he sat next President Putin and got paid over $33,000 for that.

Mr. Clapper, given the conversation that Ms. Yates provided to the White House regarding — and this is during the January 26th and 27th timeframe — regarding General Flynn, should he have sat in on the following discussions?

On January 28th, he participated in an hour-long call, along with President Trump, to President Putin. And on February 11th, he participated in a discussion with Prime Minister Abe and the president at Mar-a-Lago to discuss North Korea’s missile tests.

Should he — given the — the information that had already been provided by Ms. Yates, should he have participated in these two very specific instances?

In comments on Yates’ testimony when it got canceled on March 28, Adam Schiff focused on the possible explanation for why Flynn was kept on, through that meeting and for 18 days total after Yates’ warning to the White House.

In other words, the big question surrounding Flynn’s firing seems to have as much to do with why he wasn’t fired as why he was, eventually, 18 days after getting notice he was in trouble with DOJ. And the import of including him in that phone call with Putin seems to be a part of that.

Again, that may well be included in the universe of documents on Flynn’s firing (I’d love to see Yates’ firing in there as well, as the Muslim ban was used as an excuse to fire her just as she was raising concerns about Flynn). But it seems important to learn why Trump felt the need to keep Flynn on even after his communications with the Russians had gotten him in legal trouble.

Chris Wray’s DodgeBall and Trump’s Latest Threats

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Though I lived-tweeted it, I never wrote up Christopher Wray’s confirmation hearing to become FBI Director. Given the implicit and explicit threats against prosecutorial independence Trump made in this interview, the Senate should hold off on Wray’s confirmation until it gets far more explicit answers to some key questions.

Trump assails judicial independence

The NYT interview is full of Trump’s attacks on prosecutorial independence.

It started when Trump suggested (perhaps at the prompting of Michael Schmidt) that Comey only briefed Trump on the Christopher Steele dossier so he could gain leverage over the President.

Later, Trump called Sessions’ recusal “unfair” to the President.

He then attacked Rod Rosenstein by suggesting the Deputy Attorney General (who, Ryan Reilly pointed out, is from Bethesda) must be a Democrat because he’s from Baltimore.

Note NYT goes off the record (note the dashed line) with Trump in his discussions about Rosenstein at least twice (including for his response to whether it was Sessions’ fault or Rosenstein’s that Mueller got appointed), and NYT’s reporters seemingly don’t think to point out to the President that he appeared to suggest he had no involvement in picking DOJ’s #2, which would seem to be crazy news if true.

Finally, Trump suggested (as he has elsewhere) Acting FBI Director Andrew McCabe is pro-Clinton.

Having attacked all the people who are currently or who have led the investigation into him (elsewhere in the interview, though, Trump claims he’s not under investigation), Trump then suggested that FBI Directors report directly to the President. In that context, he mentioned there’ll soon be a new FBI Director.

In other words, this mostly softball interview (though Peter Baker made repeated efforts to get Trump to explain the emails setting up the June 9, 2016 meeting) served as a largely unfettered opportunity for Trump to take aim at every major DOJ official and at the concept of all prosecutorial independence. And in that same interview, he intimated that the reporting requirements with Christopher Wray — who got nominated, ostensibly, because Comey usurped the chain of command requiring him to report to Loretta Lynch — would amount to Wray reporting directly to Trump.

Rosenstein does what he says Comey should be fired for

Close to the same time this interview was being released, Fox News released an “exclusive” interview with Rod Rosenstein, one of two guys who acceded to the firing of Jim Comey ostensibly because the FBI Director made inappropriate comments about an investigation. In it, the guy overseeing Mueller’s investigation into (in part) whether Trump’s firing of Comey amounted to obstruction of justice, Rosenstein suggested Comey acted improperly in releasing the memos that led to Mueller’s appointment.

And he had tough words when asked about Comey’s recent admission that he used a friend at Columbia University to get a memo he penned on a discussion with Trump leaked to The New York Times.

“As a general proposition, you have to understand the Department of Justice. We take confidentiality seriously, so when we have memoranda about our ongoing matters, we have an obligation to keep that confidential,” Rosenstein said.

Asked if he would prohibit releasing memos on a discussion with the president, he said, “As a general position, I think it is quite clear. It’s what we were taught, all of us as prosecutors and agents.”

While Rosenstein went on to defend his appointment of Mueller (and DOJ’s reinstatement of asset forfeitures), he appears to have no clue that he undermined his act even as he defended it.

Christopher Wray’s dodge ball

Which brings me to Wray’s confirmation hearing.

In fact, there were some bright spots in Christopher Wray’s confirmation hearing, mostly in its last dregs. For example, Dick Durbin noted that DOJ used to investigate white collar crime, but then stopped. Wray suggested DOJ had lost its stomach for such things, hinting that he might “rectify” that.

Similarly, with the last questions of the hearing Mazie Hirono got the most important question about the process of Wray’s hiring answered, getting Wray to explain that only appropriate people (Trump, Don McGahn, Reince Priebus, Mike Pence) were in his two White House interviews.

But much of the rest of the hearing alternated between Wray’s obviously well-rehearsed promises he would never be pressured to shut down an investigation, alternating with a series of dodged questions. Those dodges included:

  • What he did with the 2003 torture memo (dodge 1)
  • Whether 702 should have more protections (dodge 2)
  • Why did Trump fire Comey (dodge 3)
  • To what extent the Fourth Amendment applies to undocumented people in the US (dodge 4)
  • What we should do about junk science (dodge 5)
  • Whether Don Jr should have taken a meeting with someone promising Russian government help to get Trump elected (dodge 6)
  • Whether Lindsey Graham had fairly summarized the lies Don Jr told about his June 9, 2016 meeting (dodge 7)
  • Can the President fire Robert Mueller (dodge 8)
  • Whether it was a good idea to form a joint cyber group with Russia (dodge 9)
  • The role of tech in terrorist recruitment (dodge 9 the second)
  • Whether FBI Agents had lost faith in Comey (dodge 10)
  • Who was in his White House interview — though this was nailed down in a Hirono follow up (dodge 11)

Now, don’t get me wrong, this kind of dodge ball is par for the course for executive branch nominees in this era of partisan bickering — it’s the safest way for someone who wants a job to avoid pissing anyone off.

But at this time of crisis, we can’t afford the same old dodge ball confirmation hearing.

Moreover, two of the these dodges are inexcusable, in my opinion. First, his non-responses on 702. That’s true, first of all, because if and when he is confirmed, he will have to jump into the reauthorization process right away, and those who want basic reforms let Wray off the hook on an issue they could have gotten commitments on. I also find it inexcusable because Wray plead ignorance about 702 even though he played a key role in (not) giving defendants discovery on Stellar Wind, and otherwise was read into Stellar Wind after 2004, meaning he knows generally how PRISM works. He’s not ignorant of PRISM, and given how much I know about 702, he shouldn’t be ignorant of that, either.

But the big one — the absolutely inexcusable non answer that would lead me to vote against him — is his claim not to know the law about whether the President can fire Robert Mueller himself.

Oh, sure, as FBI Director, Wray won’t be in the loop in any firing. But by not answering a question the answer to which most people watching the hearing had at least looked up, Wray avoided going on the record on an issue that could immediately put him at odds with Trump, the guy who thinks Wray should report directly to him.

Add to that the Committee’s failure to ask Wray two other questions I find pertinent (and his answers on David Passaro’s prosecution either revealed cynical deceit about his opposition to torture or lack of awareness of what really happened with that prosecution).

The first question Wray should have been asked (and I thought would have been by Al Franken, who instead asked no questions) is the circumstances surrounding Wray’s briefing of John Ashcroft about the CIA Leak investigation in 2003, including details on Ashcroft’s close associate Karl Rove’s role in exposing Valerie Plame’s identity.

Sure, at some level, Wray was just briefing his boss back in 2003 when he gave Ashcroft details he probably shouldn’t have. The fault was Ashcroft’s, not Wray’s. But being willing to give an inappropriate briefing in 2003 is a near parallel to where Comey found himself, being questioned directly by Trump on a matter which Trump shouldn’t have had access to. And asking Wray to explain his past actions is a far, far better indication of how he would act in the (near) future than his rehearsed assurances he can’t be pressured.

The other question I’d have loved Wray to get asked (though this is more obscure) is how, as Assistant Attorney General for the Criminal Division under Bush, he implemented the July 22, 2002 Jay Bybee memo permitting the sharing of grand jury information directly with the President and his top advisors without notifying the district court of that sharing. I’d have asked Wray this question because it was something he would have several years of direct involvement with (potentially even with the Plame investigation!), and it would serve as a very good stand-in for his willingness to give the White House an inappropriate glimpse into investigations implicating the White House.

There are plenty more questions (about torture and the Chiquita settlement, especially) I’d have liked Wray to answer.

But in spite of Wray’s many rehearsed assurances he won’t spike any investigation at the command of Donald Trump, he dodged (and was not asked) key questions that would have made him prove that with both explanations of his past actions and commitments about future actions.

Given Trump’s direct assault on prosecutorial independence, an assault he launched while clearly looking forward to having Wray in place instead of McCabe, the Senate should go back and get answers. Trump has suggested he thinks Wray will be different than Sessions, Rosenstein, Comey, and McCabe. And before confirming Wray, the Senate should find out whether Trump has a reason to believe that.

Update: I did not realize that between the time I started this while you were all asleep and the time I woke up in middle of the night Oz time SJC voted Wray out unanimously, which is a testament to the absolute dearth of oversight in the Senate.

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

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

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

Thank you for your attention to this important matter.

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

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

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

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

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

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

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

Senate Narrowly Avoids Voting Themselves to Become “Typos”

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The McCain (Cornyn) amendment to the Judiciary Appropriations bill that would let them get Electronic Communication Transaction Records with a National Security Letter just narrowly failed to get cloture, with Dan Sullivan flipping his vote to yes near the end but Mike Crapo, a likely no vote, not voting. The final vote was 59-37.

The floor debate leading up to the vote featured a few notable exchanges. Richard Burr was an absolutely douchebag, saying Ron “Wyden is consistently against providing LE the tools it needs to defend the American people.” He did so in a speech admitting that, “My colleague says this wouldn’t stop SB or Orlando. He’s 100% correct.”

Burr also insisted that we can’t let the Lone Wolf provision, which allegedly has never been used, expire. It was extended just last year and doesn’t expire until 2019.

More interesting though was the debate between Burr and Leahy over whether the FBI can’t obtain ECTRs because of a typo in the law as passed in 1993. Leahy basically described that Congress had affirmatively decided not to include ECTRs in NSLs (implicit in this, Congress also did not decide to include it in the 2001 expansion). Burr claimed that Congress meant to include it but didn’t in some kind of oversight.

Here’s how Mazie Hirono and Martin Heinrich described the debate in the report on the Intelligence Authorization, which has a version of the ECTR change.

The FBI has compared expanding these authorities to fixing a “typo” in the Electronic Communications Privacy Act (ECPA).

However, during consideration of ECPA reform legislation in 1993, the House Judiciary Committee said in its committee report that “Exempt from the judicial scrutiny normally
required for compulsory process, the national security letter is an extraordinary device. New applications are disfavored.”

The House Judiciary Committee report also makes clear that the bill’s changes to Section 2709(b) of ECPA were a “modification of the language originally proposed by the
FBI.”

This does not support claims that the removal of the ECTR language was a “typo.”

Burr effectively argued that because law enforcement wanted ECTRs to be included back in 1993, they were meant to be included, and Congress’ exclusion of them was just a typo.

In short, a member of the Senate just argued that if Congress affirmatively decides not to capitulate to every demand of law enforcement, it must be considered a “typo” and not legally binding law.

For the moment, the Senate voted down making itself a “typo,” but Mitch McConnell filed a motion to reconsider, meaning he can bring the vote back up as soon as he arm twists one more vote.

 

John Brennan Admits to Lying about Working with Human Rights Abusers

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Back in May, I noted that in addition to an unclassified request that John Brennan correct his lies about CIA hacking the Senate Intelligence Committee torture investigators, Ron Wyden, Martin Heinrich, and Mazie Hirono also asked Brennan to correct a lie he told in March.

Additionally, we are attaching a separate classified letter regarding inaccurate public statements that you made on another topic in March 2015. We ask that you correct the public record regarding these statements immediately.

I suggested that Brennan probably lied in response to a request about working with human rights violators at a public speech at the Council on Foreign Relations.

QUESTION: I’m going to try to stand up. Sarah Leah Whitson, Human Rights Watch. Two days ago, ABC News ran some video and images of psychopathic murderers, thugs in the Iraqi security forces, carrying out beheadings, executions of children, executions of civilians. Human Rights Watch has documented Iraqi militias carrying out ISIS-like atrocities, executions of hundreds of captives and so forth.

And some of the allies in the anti-ISIS coalition are themselves carrying out ISIS-like atrocities, like beheadings in Saudi Arabia, violent attacks on journalists in Saudi Arabia—how do you think Iraqi Sunni civilians should distinguish between the good guys and the bad guys in this circumstance?

BRENNAN: It’s tough sorting out good guys and bad guys in a lot of these areas, it is. And human rights abuses, whether they take place on the part of ISIL or of militias or individuals who are working as part of formal security services, needs to be exposed, needs to be stopped.

And in an area like Iraq and Syria, there has been some horrific, horrific human rights abuses. And this is something that I think we need to be able to address. And when we see it, we do bring it to the attention of authorities. And we will not work with entities that are engaged in such activities.

(I even noted in real time he was refusing to respond to the part of the question about the Saudis.)

Brennan has now responded (Ali Watkins first reported on the letter on Friday). As part of his response, he admits that, contrary to his claim at CFR that “we will not work with entities that are engaged” in human rights abuses, in fact the CIA does — “because of critical intelligence those services provide.”

I understand your concerns about my brief, extemporaneous remarks. While we neither condone nor participate in activities that violate human rights standards, we do maintain corporative liaison relationships with a variety of intelligence and security services around the world, some of whose constituent entities have engaged in human rights abuses. We strive to identify and, where possible, avoid working with individuals whom we believe to be responsible for such abuses. In some cases, we have decided to continue those relationships, despite unacceptable behavior, because of the critical intelligence those services provide, including information that allows us to disrupt terrorist plotting against the United States.

Mind you, his letter implies that his response pertains only to “Iraqi security forces,” and not — as was part of the original question, but not one Brennan even acknowledged in his response — our allies the head-chopping Saudis.

I would suggest, however, that the Saudis are far better described as a service that provides us critical intelligence, “including information that allows us to disrupt terrorist plotting against the US.” I’d frankly be shocked if Iraqi security forces even have that capability, not to mention that the terrorists in Iraq are pretty focused on setting up their caliphate in Iraq right now, not attacking the US.

So kudos to John Brennan for owning up to the general lie, that “we will not work with entities that are engaged in” human rights abuses, even if in owning up to it, the old Riyadh Station Chief is still protecting his buddies the Sauds.

Baby steps, I guess.

Wyden et al: Spot the Lie in Brennan’s CFR Speech Contest!

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As the Daily Dot reported, Senators Wyden, Heinrich, and Hirono wrote John Brennan a letter trying to get him to admit that he lied about hacking the Senate Intelligence Committee.

But, as often happens with Wyden-authored letters, they also included this oblique paragraph at the end:

Additionally, we are attaching a separate classified letter regarding inaccurate public statements that you made on another topic in March 2015. We ask that you correct the public record regarding these statements immediately.

A game!!! Find the lies Brennan told in March!!!

The most likely place to look for Brennan lies comes in this appearance at the Council on Foreign Relations, where Brennan took questions from the audience.

While you might think Brennan lied about outsourcing torture to our allies, his answer on CIA involvement with interrogations conducted by our partners was largely truthful, even if he left out the part of detainees being tortured in custody.

But on a related issue, Brennan surely lied. He claimed — in response to a questions from an HRW staffer — not to partner with those who commit atrocities.

QUESTION: I’m going to try to stand up. Sarah Leah Whitson, Human Rights Watch. Two days ago, ABC News ran some video and images of psychopathic murderers, thugs in the Iraqi security forces, carrying out beheadings, executions of children, executions of civilians. Human Rights Watch has documented Iraqi militias carrying out ISIS-like atrocities, executions of hundreds of captives and so forth.

And some of the allies in the anti-ISIS coalition are themselves carrying out ISIS-like atrocities, like beheadings in Saudi Arabia, violent attacks on journalists in Saudi Arabia—how do you think Iraqi Sunni civilians should distinguish between the good guys and the bad guys in this circumstance?

BRENNAN: It’s tough sorting out good guys and bad guys in a lot of these areas, it is. And human rights abuses, whether they take place on the part of ISIL or of militias or individuals who are working as part of formal security services, needs to be exposed, needs to be stopped.

And in an area like Iraq and Syria, there has been some horrific, horrific human rights abuses. And this is something that I think we need to be able to address. And when we see it, we do bring it to the attention of authorities. And when we see it, we do bring it to the attention of authorities. And we will not work with entities that are engaged in such activities.

As I noted at the time, Brennan totally dodged the question about Saudi atrocities. But it is also the case that many of the “moderates” we’ve partnered with in both Syria and Iraq have themselves engaged in atrocities.

So I suspect his claim that “we will not work with entities that are engaged in such activities” is one of the statements Wyden et al were pointing to.

A potentially related alternative candidate (the letter did say Brennan had made false statements, plural) is this exchange. When Brennan claimed, at the time, he has no ties to Qasim Soleimani, I assumed he was lying, not just because we’re actually fighting a way in IRGC’s vicinity but also because Brennan seemed to exhibit some of the “tells” he does when he lies.

QUESTION: James Sitrick, Baker & McKenzie. You spent a considerable amount of your opening remarks talking about the importance of liaison relationships. Charlie alluded to this in one of his references to you, on the adage—the old adage has it that the enemy of your enemy is your friend. Are we in any way quietly, diplomatically, indirectly, liaisoning with Mr. Soleimani and his group and his people in Iraq?

BRENNAN: I am not engaging with Mr. Qasem Soleimani, who is the head of the Quds Force of Iran. So no, I am not.

I am engaged, though, with a lot of different partners, some of close, allied countries as well as some that would be considered adversaries, engaged with the Russians on issues related to terrorism.

We did a great job working with the Russians on Sochi. They were very supportive on Boston Marathon. We’re also looking at the threat that ISIL poses both to the United States as well as to Russia.

So I try to take advantage of all the different partners that are out there, because there is a strong alignment on some issues—on proliferation as well as on terrorism and others as well.

I happen to think it an exaggeration that the Russians “were very supportive on Boston Marathon,” but maybe that’s because FSB was rolling up CIA spies who were investigating potentially related groups in Russia.

Finally, while less likely, I think this might be a candidate.

QUESTION: Thank you. Paula DiPerna, NTR Foundation. This is probably an unpopular suggestion, but is it feasible or how feasible would it be to do a little selective Internet disruption in the areas concerned, a la a blockade, digital blockade, and then an international fund to indemnify business loss?

BRENNAN: OK. First of all, as we all know, the worldwide web, the Internet, is a very large enterprise. And trying to stop things from coming out, there are political issues, there are legal issues here in the United States as far as freedom of speech is concerned. But even given that consideration, doing it technically and preventing some things from surfacing is really quite challenging.

And we see that a number of these organizations have been able to immediately post what they’re doing in Twitter. And the ability to stop some things from getting out is really quite challenging.

As far as, you know, indemnification of various companies on some of these issues, there has been unfortunately a very, very long, multi-year effort on the part of the Congress to try to pass some cybersecurity legislation that addressed some of these issues. There has been passage in the Senate.

I think it’s overdue. We need to update our legal structures as well as our policy structures to deal with the cyber threats we face.

Remember, Ron Wyden has been pointing to an OLC opinion on Common Commercial Services (which, however, CIA’s now General Counsel Carolyn Krass said publicly she wouldn’t rely on) for years. I suspect indemnity is one of the things it might cover.

Plus, I do think it likely that we’ve disrupted the Internet in various circumstances.

Who knows? Maybe Brennan just told a lot of lies.

It wouldn’t be the first time.

Update: NatSec sources are already dismissing this Sy Hersh piece on the real story behind the bin Laden killing. But if there’s truth to this detail, then it would suggest I was overly optimistic when I suggested Brennan was truthful about outsourcing our interrogation to allies.

The retired official told me that the CIA leadership had become experts in derailing serious threats from Congress: ‘They create something that is horrible but not that bad. Give them something that sounds terrible. “Oh my God, we were shoving food up a prisoner’s ass!” Meanwhile, they’re not telling the committee about murders, other war crimes, and secret prisons like we still have in Diego Garcia. The goal also was to stall it as long as possible, which they did.’

If we do still have a secret prison in Diego Garcia, then the claim that we outsource everything to allies would be the key lie here.

Every Senator Who Supports USA Freedom May Be Affirmatively Ratifying a Financial Dragnet

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Now that I’ve finally got around to reading the so-called transparency provisions in Patrick Leahy’s USA Freedom Act, I understand that one purpose of the bill, from James Clapper’s perspective, is to get Congress to ratify some kind of financial dragnet conducted under Section 215.

As I’ve laid out in detail before, there’s absolutely no reason to believe USA Freedom Act does anything to affect non-communications collection programs.

That’s because the definition of “specific selection term” permits (corporate) persons to be used as a selector, so long as they aren’t communications companies. So Visa, Western Union, and Bank of America could all be used as the selector; Amazon could be for anything not cloud or communications-related. Even if the government obtained all the records from these companies — as reports say it does with Western Union, at least — that would not be considered “bulk” because the government defines “bulk” as collection without a selector. Here, the selector would be the company.

And as I just figured out yesterday, the bill requires absolutely no individualized reporting on traditional Section 215 orders that don’t obtain communications. Here’s what the bill requires DNI to report on traditional 215 collection.

(D) the total number of orders issued pursuant to applications made under section 501(b)(2)(B) and a good faith estimate of—
(i) the number of targets of such orders;
(ii) the number of individuals whose communications were collected pursuant to such orders; and
(iii) the number of individuals whose communications were collected pursuant to such orders who are reasonably believed to have been located in the United States at the time of collection;

The bill defines “individuals whose communications were collected” this way:

(3) INDIVIDUAL WHOSE COMMUNICATIONS WERE COLLECTED.—The term ‘individual whose communications were collected’ means any individual—
(A) who was a party to an electronic communication or a wire communication the contents or noncontents of which was collected; or
(B)(i) who was a subscriber or customer of an electronic communication service or remote computing service; and
(ii) whose records, as described in subparagraph (A), (B), (D), (E), or (F) of section 2703(c)(2) of title 18, United States Code, were collected.

Thus, the 215 reporting only requires the DNI to provide individualized reporting on communications related orders. It requires no individualized reporting at all on actual tangible things (in the tangible things provision!). A dragnet order collecting every American’s Visa bill would be reported as 1 order targeting the 4 or so terrorist groups specifically named in the primary order. It would not show that the order produced the records of 310 million Americans.

I’m guessing this is not a mistake, which is why I’m so certain there’s a financial dragnet the government is trying to hide.

Under the bill, of course, Visa and Western Union could decide they wanted to issue a privacy report. But I’m guessing if it would show 310 million to 310,000,500 of its customers’ privacy was being compromised, they would be unlikely to do that.

So the bill would permit the collection of all of Visa’s records (assuming the government could or has convinced the FISC to rubber stamp that, of course), and it would hide the extent of that collection because DNI is not required to report individualized collection numbers.

But it’s not just the language in the bill that amounts to ratification of such a dragnet.

As the government has argued over and over and over, every time Congress passes Section 215’s “relevant to” language unchanged, it serves as a ratification of the FISA Court’s crazy interpretation of it to mean “all.” That argument was pretty dodgy for reauthorizations that happened before Edward Snowden came along (though its dodginess did not prevent Clare Eagan, Mary McLaughlin, and William Pauley from buying it). But it is not dodgy now: Senators need to know that after they pass this bill, the government will argue to courts that it ratifies the legal interpretations publicly known about the program.

While the bill changes a great deal of language in Section 215, it still includes the “relevant to” language that now means “all.” So every Senator who votes for USAF will make it clear to judges that it is the intent of Congress for “relevant to” to mean “all.”

And it’s not just that! In voting for USAF, Senators would be ratifying all the other legal interpretations about dragnets that have been publicly released since Snowden’s leaks started.

That includes the horrible John Bates opinion from February 19, 2013 that authorized the government to use Section 215 to investigate Americans for their First Amendment protected activities so long as the larger investigation is targeted at people whose activities aren’t protected under the First Amendment. So Senators would be making it clear to judges their intent is to allow the government to conduct investigations into Americans for their speech or politics or religion in some cases (which cases those are is not entirely clear).

That also includes the John Bates opinion from November 23, 2010 that concluded that, “the Right to Financial Privacy Act, … does not preclude the issuance of an order requiring the production of financial records to the Federal Bureau of Investigation (FBI) pursuant to the FISA business records provision.” Given that Senators know (or should — and certainly have the ability to — know) about this before they support USAF, judges would be correct in concluding that it was the intent of Congress to permit the government to collect financial records under Section 215.

So Senators supporting this bill must realize that supporting the bill means they are supporting the following:

  • The interpretation of “relevant to” to permit the government to collect all of a given kind of record in the name of a standing FBI terrorism investigation.
  • The use of non-communication company corporate person names, like Visa or Western Union, as the selector “limiting” collection.
  • The use of Section 215 to collect financial records.
  • Not requiring the government to report how many Americans get sucked up in any financial (or any non-communications) dragnet.

That is, Senators supporting this bill are not only supporting a possible financial dragnet, but they are helping the government hide the existence of it.

I can’t tell you what the dragnet entails. Perhaps it’s “only” the Western Union tracking reported by both the NYT and WSJ. Perhaps James Cole’s two discussions of being able to collect credit card records under this provision means they are. Though when Leahy asked him if they could collect credit card records to track fertilizer purchases, Cole suggested they might not need everyone’s credit cards to do that.

Leahy: But if our phone records are relevant, why wouldn’t our credit card records? Wouldn’t you like to know if somebody’s buying, um, what is the fertilizer used in bombs?

Cole: I may not need to collect everybody’s credit card records in order to do that.

[snip]

If somebody’s buying things that could be used to make bombs of course we would like to know that but we may not need to do it in this fashion.

We don’t know what the financial dragnet is. But we know that it is permitted — and deliberately hidden — under this bill.

Below the rule I’ve put the names of the 18 Senators who have thus far co-sponsored this bill. If one happens to be your Senator, it might be a good time to urge them to reconsider that support.

Patrick Leahy (202) 224-4242

Mike Lee (202) 224-5444

Dick Durbin (202) 224-2152

Dean Heller (202) 224-6244

Al Franken (202) 224-5641

Ted Cruz (202) 224-5922

Richard Blumenthal (202) 224-2823

Tom Udall (202) 224-6621

Chris Coons (202) 224-5042

Martin Heinrich (202) 224-5521

Ed Markey (202) 224-2742

Mazie Hirono (202) 224-6361

Amy Klobuchar (202) 224-3244

Sheldon Whitehouse (202) 224-2921

Chuck Schumer (202) 224-6542

Bernie Sanders (202) 224-5141

Cory Booker (202) 224-3224

Bob Menendez (202) 224-4744

Sherrod Brown (202) 224-2315

 

 

Upstream US Person Collection: EO 12333 and/or FISA?

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Screen shot 2013-10-04 at 2.42.00 AMKeith Alexander had a really bizarre response to a question from Mazie Hirono in Tuesday’s hearing.

SEN. HIRONO: I have one more question, Mr. Chairman. General Alexander, is PRISM the only intelligence program NSA runs under FISA Section 702?

GEN. ALEXANDER: Well, PRISM was (the statement ?), but, yes. Essentially, the only program was that — that, you know, is PRISM under 702, which under — operates under that authority for the court. But we also have programs under 703, 704 and 705.

Perhaps he was confused by her question (which came in the context of questions about the NYT’s report on the construction of dossiers, potentially on Americans). But he seems to have claimed that PRISM — the collection of Internet content from Internet providers under Section 702 — is the only way the NSA uses FISA Amendments Act to collect content.

Not only does the PRISM slide above belie that (and there’s also phone content that is not covered under PRISM).

But the government itself released the October 3, 2011 John Bates FISC opinion (and other related documents) which describes the government’s collection of Internet transactions directly from the phone company switches (see footnote 24 where Bates distinguishes between the two kinds of Section 702 Internet collection). In an attempt to spin this collection as a big mistake last week, Dianne Feinstein even confirmed that this “upstream” collection comes from the backbone operated by the phone companies.

In mid 2011, NSA notified the DOJ, the DNI, and the FISA court, and House and Senate Intelligence Committees, of a series of compliance incidents impacting a subset of NSA collection under Section 702 of FISA, known as upstream collection.

This comprises about 10 percent of all collection that takes place under 702, and occurs when NSA obtains Internet communications, such as e-mails, from certain U.S. companies that operate the Internet background;[sic] i.e., the companies that own and operate the domestic telecommunication lines over which Internet traffic flows.

So there’s PRISM, there’s phone content collection, and there’s the upstream Internet collection from the phone companies’ switches. All operated, per the 2011 Bates memo, under Section 702 (and therefore overseen by the FISA Court and Congress).

Which is why I’ve been pondering this chart and related explanation, from NSA’s internal review of compliance incidents for the first quarter of 2012.

Screen shot 2013-10-04 at 2.18.15 AM

The chart shows all the violation incidents NSA discovered under programs authorized under Executive Order 12333 — the EO that covers entirely foreign collection, over which FISC and Congress exercise much less oversight than FISA. And what NSA calls “Transit Program” violations appear in the EO 12333, not the FISA, chart. In the first quarter of 2012 (the first quarter after the government started to resolve the 702 upstream collection problems laid out in the Bates memo), Transit Program violations went up from 7 in a quarter to 27.

NSA describes Transit Program violations this way.

(TS//SI//REL TO USA, FVEY) International Transit Switch Collection*: International Transit switches, FAIRVIEW (US-990), STORMBREW (US-983), ORANGEBLOSSOM (US-3251), and SILVERZEPHYR (US-3273), are Special Source Operations (SSO) programs authorized to collect cable transit traffic passing through U.S. gateways with both ends of the communication being foreign. When collection occurs with one or both communicants inside the U.S., this constitutes inadvertent collection. From 4QCY11 to 1QCY12, there was an increase of transit program incidents submitted from 7 to 27, due to the change in our methodology for reporting and counting of these types of incidents,

That is, these “Transit Program” violations reflect the collection of US person data in upstream collection, the very same problem described in the Bates opinion.

As I’ve been puzzling through why Transit Program violations would appear under EO 12333 rather than FISA, I wondered whether NSA collects off switches under both authorities — some content that the telecoms provide after doing an initial screening (as described in this WSJ article and backhandedly confirmed by the DNI), and some programs that the NSA collects and sorts off undersea cables itself. Both FAIRVIEW and STORMBREW show up — seemingly as Section 702 collection — on the PRISM slide above, but ORANGEBLOSSOM and SILVERZEPHYR don’t (WSJ also lists OAKSTAR and LITHIUM).

If so, though, you’d expect NSA to be finding violations under both authorities, because we know the government collects US person data under the 702 authorized upstream collection (they call this unintentional but Bates deemed it intentional).

This is all the more confusing given the way former Assistant Attorney General David Kris discusses “vacuum cleaner” collection taking place under EO 12333. His paper is on metadata collection, not content, but the vacuum cleaner (that is, dragnet) collection collects content as well (and the distinction may get distorted in discussions of Internet packets).

I don’t, yet, know the answer to this question, but the question itself raises several others:

  • Given that there’s not a 702-authorized Transit Program violation category, does that mean NSA wasn’t and may still not be tracking it? That doesn’t make sense, because there are greater mandates to track these things under 702.
  • If there wasn’t a 702-authorized Transit Program violation category before the revelations to John Bates, is it possible NSA instead treated upstream collection as authorized by 12333 so as not to have to report these violations?
  • Are these known violations being reported now? Are they getting reported to Congress and the Court? Or has the NSA simply decided they’re not violations since Bates has okayed them, sort of, as intentional collection?
  • If some of the upstream collection yielding US person content operates under 12333, does it have to be treated under any minimization rules?
  • What do the 7 and 27 violation numbers reflect in relation to the figures of 10,000 SCT and 46,000 MCT estimates involving US persons provided to Bates?
  • Did these violations ever get reported to Congress and the FISC?

In short, either all this upstream collection falls under 702, in which case there’s a big question why NSA tracks it as 12333 collection. Or the NSA’s ability to operate upstream collection under both authorities raises real questions about the protections it accords US person data collected under the 12333 collection.

Update: Two more things on this.

First, remember back in 2001, John Yoo pixie dusted EO 12333, basically holding the President could change the content of it without changing the language of it publicly. That was done, according to Sheldon Whitehouse, to permit the government to “wiretap Americans traveling abroad.” But I suspect it was done to permit the government to “wiretap Americans’ communications traveling abroad” — that is, American Internet traffic that transits foreign switches.

That said, I suspect the 2010 OLC memo on using 2511(2)(f) for collection was meant to clean up some of that (and also Yoo’s reliance on claiming the Fourth Amendment didn’t apply in DOD searches of entire apartment buildings if they were searching for terrorists).

Also, remember that the language of the 2008 Yahoo opinion makes it clear that the Protect America Act — Section 702’s predecessor — relied on 12333 for particularity. While we should soon learn more (FISC is releasing much more of this opinion and underlying documents), it seems that PAA was treated as a nested program within 12333.